Foreword: Making Sense of Information for Environmental Protection

Despite the ubiquity of information, no one has proposed calling the present era the Knowledge Age. Knowledge depends not only on access to reliable information, but also on sound judgment regarding which information to access and how to situate that information in relation to the values and purposes that comprise the individual\u27s or the social group\u27s larger projects. This is certainly the case for wise and effective environmental governance. A regulator needs accurate information to understand the nature of a problem and the consequences of potential responses. Likewise, the regulated community needs information to decide how best to comply with adopted rules, and the public needs information in order to accept the credibility and legitimacy of the regulatory regime. But governance also requires judgment regarding how to manage information itself - how to structure burdens of proof in light of goals such as public safety or promotion of economic growth, how to balance the public\u27s interest in disclosure against competing aims such as national security or the protection of trade secrets, whether to withhold information in the belief that it may actually be harmful to the recipient, and so on. This paper, written as a foreword for the Texas Law Review\u27s symposium issue, Harnessing the Power of Information for the Next Generation of Environmental Law, provides a model to understand the role of information in environmental law - how it is generated, utilized, and disseminated within regulatory processes. Drawing on the diverse and significant insights of the symposium articles, the paper attempts both to make sense of the role of information in environmental protection and to highlight significant questions and concerns

Did NEPA Drown New Orleans? The Levees, the Blame Game, and the Hazards of Hindsight

This Article highlights the. hazards of hindsight analysis of the causes of catastrophic events, focusing on theories of why the New Orleans levees failed during Hurricane Katrina in 2005 and particularly on the theory that the levee failures were caused by a 1977 National Environmental Policy Act (NEPA) lawsuit that resulted in a temporary injunction against the Army Corps of Engineers\u27 hurricane protection project for New Orleans. The Article provides a detailed historical reconstruction of the decision process that eventuated in the New Orleans storm surge protection system, focusing both on the political and legal factors involved and on the standard project hurricane risk assessment model that lay at the heart of the Army Corps of Engineers\u27 decisionmaking process. The Article then offers a detailed analysis. of how and why Hurricane Katrina overcame the New Orleans levee system. As this analysis demonstrates, the argument that the NEPA lawsuit played a meaningful causal role in the Katrina disaster is not persuasive. Parallel lessons are then drawn for forward-looking disaster policy. The same problems of uncertainty and complexity that confound the attempt through hindsight to attribute causal responsibility for a disaster also confound the attempt to predict using foresight the variety of outcomes, including potentially disastrous ones, that may flow from policy choices. Focusing narrowly on any single parameter of complex natural and human systems is likely to dramatically distort environmental, health, and safety decisionmaking, whether the parameter is a standard project hurricane when planning a hurricane protection plan, or the equally mythical lawsuit that sunk New Orleans when attempting to allocate responsibility for the plan\u27s failure some forty years later

Did NEPA Drown New Orleans? The Levees, the Blame Game, and the Hazards of Hindsight

This Article highlights the. hazards of hindsight analysis of the causes of catastrophic events, focusing on theories of why the New Orleans levees failed during Hurricane Katrina in 2005 and particularly on the theory that the levee failures were caused by a 1977 National Environmental Policy Act (NEPA) lawsuit that resulted in a temporary injunction against the Army Corps of Engineers\u27 hurricane protection project for New Orleans. The Article provides a detailed historical reconstruction of the decision process that eventuated in the New Orleans storm surge protection system, focusing both on the political and legal factors involved and on the standard project hurricane risk assessment model that lay at the heart of the Army Corps of Engineers\u27 decisionmaking process. The Article then offers a detailed analysis. of how and why Hurricane Katrina overcame the New Orleans levee system. As this analysis demonstrates, the argument that the NEPA lawsuit played a meaningful causal role in the Katrina disaster is not persuasive. Parallel lessons are then drawn for forward-looking disaster policy. The same problems of uncertainty and complexity that confound the attempt through hindsight to attribute causal responsibility for a disaster also confound the attempt to predict using foresight the variety of outcomes, including potentially disastrous ones, that may flow from policy choices. Focusing narrowly on any single parameter of complex natural and human systems is likely to dramatically distort environmental, health, and safety decisionmaking, whether the parameter is a standard project hurricane when planning a hurricane protection plan, or the equally mythical lawsuit that sunk New Orleans when attempting to allocate responsibility for the plan\u27s failure some forty years later

Professor Douglas Kysar\u27s Analysis of Flaws in Predictive International Climate Policy Models

For island countries, climate change and global warming are not hypothetical threats. In his remarks, Professor Douglas Kysar illustrated the immediate need to reframe climate change politics by describing the impending extinction of Palau, a small nation made up of some three hundred islands in the Pacific Ocean. Rising ocean levels threaten Palau’s lands and have forced its government to consider how to adapt to or counteract the effects of climate change

Interpreting by the Rules

A promising new school of statutory interpretation has emerged that tries to wed the work of Congress with that of the courts by tying interpretation to congressional process. The primary challenge to this process-based interpretive approach is the difficulty in reconstructing the legislative process. Scholars have proposed leveraging Congress’s procedural frameworks and rules as reliable heuristics to that end. This Article starts from that premise but will add wrinkles to it. The complications stem from the fact that each rule is adopted for distinct reasons and is applied differently across contexts. As investigation into these particularities proceeds, it becomes apparent that the complications are also rooted in something deeper—that Congress’s procedures are often hollow, even fraudulent. Congress, it turns out, breaks its own rules with impunity. Which brings us to a deeper riddle: What is the significance of the rules to an interpreter when Congress routinely flouts them? If one’s goal is to accurately depict the lawmaking process in hopes of deriving rules of construction that have democratic roots, then surely the interpreter must discard the rules as hopelessly unreliable guideposts. Then again, if the interpreter’s ultimate aim is to serve democratic ends, then shouldn’t we strive toward rule of law values, ensuring that Congress acts in an honorable way? Ultimately, I resolve the question by first asking what the rules are meant to do. Only then can we understand what it means to interpret by them. Through examination of many procedural contexts, I set forth an innocuous account of congressional defiance of the rules. Rather than a symptom of branch dysfunction, we should see the rules as guidelines that attempt to order congressional business but that ultimately must give way to politics. Nonetheless, some rules can help the interpreter paint a more faithful picture of congressional procedure in spite of their not being followed. More broadly, I conclude that interpretive presumptions deriving from the general efficacy of legislative rules, rather than their precise enforcement, are more successful in mirroring congressional reality

Unraveling the Tax Treaty

Coordination among nations over the taxation of international transactions rests on a network of some 2,000 bilateral double tax treaties. The double tax treaty is, in many ways, the roots of the international system of taxation. That system, however, is in upheaval in the face of globalization, technological advances, taxpayer abuse, and shifting political tides. In the academic literature, however, scrutiny of tax treaties is largely confined to the albeit important question of whether tax treaties are beneficial for developing countries. Surprisingly little consideration has been paid to whether developed countries, like the United States, should continue to sign tax treaties with one another, and no formal revenue or economic analyses of the treaties has been undertaken by the United States government. In fact, little evidence or theory exists to support entrance into tax treaties by the United States, and examination of investment flows indicates the treaties likely lose significant U.S. revenues. Additionally, the treaties enable taxpayer abuse, stagnate domestic policy, and thwart reforms of the antiquated international tax system. Although tax treaties may have, at one time, served salutary purposes, modern circumstances call into question the relinquishment of taxing jurisdiction by source countries. I suggest that nations unravel the jurisdictional provisions from the treaties, abandoning or scaling them down, possibly through the new multilateral instrument. Rather than assessing antiquated notions of worldwide efficiency, the challenge for the international tax system going forward will be to attempt some degree of coordination while also imparting flexibility to advance national interests in setting revenue policy. This solution aims to thread that needle

The New Tax Legislative and Regulatory Process

This paper compares the enactment and implementation process for the 2017 Tax Cuts and Jobs Act (TCJA) to prior tax reform acts, as well as situates it within other developments in the legislative process more generally. It details how the 2017 enactment process solidifies reconciliation as the primary vehicle for the enactment of major tax measures, a trend nearly two decades in the making. The ambitious scope of the TCJA, as well as the rushed and partisan reconciliation process by which it was enacted, has led to ambiguities and instability in the legislation. These features have, in turn, posed an enormous implementation challenge for Treasury, which has led to some troubling results. Finally, reconciliation has set up the opportunity for Congress to engage in budget gimmicks in the future. This paper discusses these trends and proposes solutions to them

Sustainability, Distribution, and the Macroeconomic Analysis of Law

Legal economic analysis has traditionally focused on the application of microeconomic theory to questions of legal import. Scholars have generally regarded macroeconomic effects of legal rules as lying beyond the purview of the legal decisiomnaker\u27s jurisdiction. This Article argues that such exclusion of macroeconomic subject matter from legal analysis may rest on a scientifically erroneous view of - the economic process. The conventional understanding of the economic process presumes an unlimited supply of material inputs and an infinite natural capacity to absorb waste outputs. Fundamental scientific principles suggest that this understanding is flawed. The economic process must necessarily be limited in scale by the capacity of the ecological superstructure to sustain it. Thus, in addition td the efficient allocation of resources, legal economic analysis also should be concerned with the sustainable maintenance of scale. Consideration of scale effects by legal decisionmakers cannot be safely ignored in the way that distributive effects have been, given that no political mechanism analogous to the tax and transfer system exists to regulate the scale of the macroeconomy