Environmental Law\u27s Heartland and Frontiers

This short paper offers three propositions to help maintain the traditional core of environmental law while also expanding environmental concerns into the frontiers of the field: 1. Environmental law in the heartland and environmental law at the frontiers of the field differ in important ways. 2. The distinctive features of the heartland and frontiers provide important functional benefits for the adaptive development of environmental law in each respective area. 3. Maintaining a distinctive heartland and frontiers of environmental law creates a dialectic relationship between the two that includes tension but also, if properly managed, potential synergies. The locus of innovation moving forward is likely to be outside of the traditional domain of environmental law--in areas that are at the frontiers of environmental law, but in the heart of related fields such as energy law, corporate social responsibility, and insurance. At the same time, environmental law\u27s heartland will continue to dominate the regulation of environmental harms for the foreseeable future. The future of environmental law therefore will be determined by a dialectic relationship between the heartland and frontiers of environmental law; each playing its own crucial role in the development of the field, in tension but also significantly dependent on the other

Environmental Harms, Use Conflicts, and Neutral Baselines in Environmental Law

Accounts of environmental law that rely on concepts of environmental harm and environmental protection oversimplify the tremendous variety of uses of environmental resources and the often complex relationships among those uses. Such approaches are analytically unclear and, more importantly, insert hidden normativity into putatively descriptive claims. Instead of thinking about environmental law in terms of preventing environmental harm, environmental problems can be understood more specifically and more meaningfully as disputes over conflicting uses of environmental resources. This Article proposes a use-conflict framework as a means of acquiring a deeper understanding of environmental problems and lawmaking without favoring any particular normative approach. The framework does not itself propose a resolution of any environmental problems but rather describes environmental problems and environmental lawmaking conceptually in a manner that exposes normative claims and attempts to establish some common ground across diverse normative perspectives

The Complexity Dilemma in Policy Market Design

Regulators are increasingly pursuing their policy objectives by creating markets. To create a policy market, regulators require firms to procure a product that is socially useful but that confers little direct private benefit to the acquiring party. Examples of policy markets include pollutant emissions trading programs, renewable energy credit markets, and electricity capacity markets. Existing scholarship has tended to analyze policy markets simply as market-based regulation. Although not inaccurate, such inquiries are necessarily incomplete because they do not focus on the distinctive traits of policy markets. Policy markets are neither typical regulations nor typical markets. Concentrating on policy markets as a distinctive type of market brings to light common characteristics of such markets, which in turn generates insights into how they can be used more effectively to implement policy. In particular, this Article focuses on a recurring fundamental challenge in policy market design: managing complexity. Typical markets manage complexity through market forces. As a regulatory creation, however, policy markets require regulators to manage their complexity. This poses what we call the complexity dilemma, which requires regulators to balance strong pressures both toward and away from complexity. The central argument of this Article is that although policy markets are an important part of a regulator’s toolkit, they are also subject to complexity that limits their usefulness. Understanding the complexity dilemma and its crucial role in policy market design forms an essential step toward progress in improving the design and function of these markets

Factual Premises of Statutory Interpretation in Agency Review Cases

This article examines factual premises of statutory interpretation in agency review cases, and proposes an approach that would better integrate the treatment of such factual premises into the overall structure of administrative law. Courts frequently encounter questions of statutory interpretation that depend on underlying factual background, context, and implications. When they do so, courts generally assume that they retain the authority to decide the factual premises and thereby to answer questions of statutory interpretation that depend on factual premises. This is problematic from a functional standpoint, because courts often lack the information or expertise necessary to assess these underlying facts and thereby to understand the implications of their interpretive options. The article proposes a new approach to premise facts in agency review cases. In particular, it argues that, under existing principles of administrative law, agencies—and not courts—have primary authority to address premise facts. This means, among other things, that agencies are not bound by prior judicial precedent interpreting statutes based on factual premises, and that agencies have the authority to reconsider such premise facts, and the statutory interpretation based on those facts, in subsequent proceedings. This reconsideration process would allow agencies to bring their superior information-gathering and -analyzing capacity to bear on premise facts, thereby improving statutory interpretation

Environmental Law Outside the Canon

It is time to rethink the domination of environmental law by a canon of major federal statutes enacted in the 1970s. Environmental law is in a malaise. Despite widespread agreement that existing laws are inadequate to address current environmental problems, Congress has not passed a major environmental statute in more than twenty years. If it is to succeed, the environmental law of this new century may need to evolve into something that looks quite different than the extant environmental law canon. The next generation of environmental laws must be viable for creation and implementation even in an antagonistic political climate; amenable to integration with other, non-environmental law; and able to make inroads against the monumental peril of global climate change. Environmental laws embedded in larger non-environmental programs and dispersed throughout government offer an alternative model to the environmental law canon—an alternative model that seems well suited to help environmental law address these daunting challenges

Environmental Law Outside the Canon

It is time to rethink the domination of environmental law by a canon of major federal environmental statutes enacted in the 1970s. Environmental law is in a malaise. Despite widespread agreement that existing laws are inadequate to address current environmental problems, Congress has not passed a major environmental statute in more than twenty years. If it is to succeed, the environmental law of this new century may need to evolve into something that looks quite different than the extant environmental law canon. The next generation of environmental laws must be viable for creation and implementation even in an antagonistic political climate; amenable to integration with other, non-environmental law; and able to make inroads against the monumental peril of global climate change. Environmental laws embedded in larger non-environmental programs and dispersed throughout government offer an alternative model to the environmental law canon — an alternative model that seems well suited to help environmental law address these daunting challenges

A Functional Approach to Risks and Uncertainties Under NEPA

The National Environmental Policy Act (NEPA) mandates that federal agencies evaluate the environmental impacts of their proposed actions. This requires agencies to make ex ante predictions about environmental consequences that often involve a significant degree of factual risk or uncertainty. Considerable controversy exists regarding how agencies should address such risks and uncertainties. Current NEPA law adopts a largely ad hoc approach that lacks coherence and analytical rigor. Some environmentalists and legal scholars have called for a greater emphasis on worst-case analysis in environmental planning, especially after the recent Deepwater Horizon oil spill in the Gulf of Mexico and the meltdowns at the Fukushima Daiichi nuclear reactors in Japan, both of which involved the eventuation of risks dismissed ex ante as improbable. This Article proposes a functional approach to environmental risks and uncertainties under NEPA as a preferable alternative to both a worst-case analysis requirement and the morass of existing approaches. A functional approach that is sensitive to context and analytically focused is better suited to the complexities of environmental planning. It is consonant with current NEPA law, but also can refine existing law to develop requirements that focus on effectuating NEPA’s purposes by producing useful environmental information

Environmental Law as a Legal Field: An Inquiry in Legal Taxonomy

This Article examines the classification of the law into legal fields, first generally and then by specific examination of the field of environmental law. We classify the law into fields to find and to create patterns, which render the law coherent and understandable. A legal field is a group of situations unified by a pattern or set of patterns that is both common and distinctive to the field. We can conceptualize a legal field as the interaction of four underlying constitutive dimensions of the field: (1) a factual context that gives rise to (2) certain policy tradeoffs, which are in turn resolved by (3) the application of values and interests to produce (4) legal doctrine. An organizational framework for a field identifies the field’s common and distinctive patterns, which may arise in any of these underlying constitutive dimensions. The second part of the Article applies this general analytical approach to the field of environmental law, proposing a framework for understanding environmental law as a field of legal study. Two core factual characteristics of environmental problems are, in combination, both common and distinct to environmental law: physical public resources and pervasive interrelatedness. Numerous use demands are placed on environmental resources, creating conflicts. These use conflicts define the policy tradeoffs that frame environmental lawmaking, forming the basis for a use-conflict framework for conceptualizing environmental lawmaking. A use-conflict framework for environmental lawmaking carries significant analytical advantages over other models for conceptualizing environmental law as a legal field