Word Limited: An Empirical Analysis of the Relationship Between theLength, Resiliency, and Impact of Federal Regulations

Since the rise of the modern administrative state we have seen a demonstrable trend towards lengthier regulations. However, popular critiques of the administrative state that focus on the overall size of the Federal Register are misguided. They rest on the premise that more, and longer, regulations unduly burden industry and the economy in general. However, movement towards lengthier and more detailed regulations could be rational and largely unproblematic. This study tests two potential rational explanations for the trend towards longer regulations: dubbed (1) “the insulation hypothesis” and (2) “the socially beneficial hypothesis.” Each of these explanations embodies a theoretically rational decision. First, the insulation hypothesis rests on the idea that it would make sense for policy-makers to include more detailed legal and scientific support in new regulations, and thereby increase their length relative to previous regulations, if the addition-al detail provided more insulation from judicial review. Second, the socially beneficial hypothesis rests on the idea that devoting relatively more time and re-sources to each new rule would be appropriate if longer, newer regulations produced more net social benefits than older, shorter ones. The empirical analysis set forth in this article combines data from a number of publicly available sources to test these hypotheses. The results, confirming “the socially beneficial hypothesis,” add to the canon of empirical analysis of administrative law, building on the work of Cass Sunstein, Cary Coglianese, and others. Recognizing an overly burdensome regulatory state, an undoubtedly worthwhile and vital check in a democratic society, requires more than simply counting the pages of regulations. The results of this study should put some minds at ease, at least with respect to EPA regulations; they should also help better direct our scrutiny in the future

Uniform Climate Control

In Washington, D.C., the “Green New Deal” may be nothing more than a symbolic, Twitter-friendly legislative campaign with no real hope of adoption. But in New York, it is the new legal reality. The efforts of sub-national governments - like New York’s - to tackle widespread environmental harms, in particular climate change, have drawn increased media and scholarly attention since the United States declared its intention to withdraw from the Paris Agreement. In truth, the trend towards so-called “environmental federalism” predates the election of President Donald J. Trump. We are ushering in the next generation of environmental laws, and those laws will largely be authored by state and local officials. Where do these lawmakers look for guidance on bill language to properly address perhaps the most complex environmental challenge of our time? This work aims to draw attention to the imbalance in model lawmaking caused by the forces aligned against climate action. It then examines the growing resources facilitating proactive climate change law at the state and local levels. In doing so, the work also provides a taxonomy of such law-promoting mechanisms. Finally, it asks how well this model law ecosystem fits with the principles of federalism in the context of the evolving environmental legal landscape, ultimately concluding that more balance would counteract the distortion of democracy caused by the current situation

Constitutional Authority, Common Resources, and the Climate

History, text, and precedent reveal an understudied and underutilized source of constitutional authority for environmental protection—the Property Clause of Article IV, Section 3. The Clause vests Congress with the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.” This work re-examines these words, the context in which they were written, and the limited judicial decisions interpreting them with an eye towards increased congressional reliance on the Property Clause in the face of daunting threats to our natural environment. Much prior scholarly explanation of the Property Clause focused on the Framers’ concerns about the land claims of various states, failing to consider any secondary motivations that deepen our understanding of arguably the Constitution’s most explicitly environmental provision. Eugene Gaetke and Peter Appel began the push back against the originalist argument for a narrow interpretation of Congress’s power under the Clause. This piece completes the picture, making an affirmative case for a fuller, conservationist original understanding, one that acknowledges the historic role of the federal government in preserving the nation’s environment and natural resources

Traditional Ecological Knowledge in Environmental Decisionmaking

Traditional ecological knowledge (TEK) is defined as a deep understanding of the environment developed by local communities and indigenous peoples over generations. In the United States, Canada, and around the world, indigenous peoples are increasingly advocating for incorporation of TEK into a range of environmental decisionmaking contexts, including natural resource and wildlife management, pollution standards, environmental and social planning, environmental impact assessment, and adaptation to climate change. On October 31, 2018, ELI hosted an expert panel on TEK, co-sponsored by the National Native American Bar Association and the American Bar Association Section of Environment, Energy, and Resources. The panel discussed the challenges that indigenous peoples face in defending the legitimacy of, and intellectual property in, TEK; how policymakers can modify existing laws and regulations to better incorporate TEK; and the potential for TEK to meet today\u27s most pressing environmental challenges. Below, we present a transcript of the discussion, which has been edited for style, clarity, and space considerations

Environmens Rea

Many policymakers remain blind to the moral implications of environmental harm caused by government action (or inaction) and have not adequately considered how criminal law deals with similar immoral behavior in other contexts. Building from Lisa Heinzerling’s thought-provoking essay Knowing Killing and Environmental Law, this article considers the possibility of criminal culpability for environmental policy decisions and the implications of that potential culpability for decision-making and communication. It builds from the premise that morality and law universally condemn the knowing killing of other human beings. It matters not that the identities of the dead are unknown. What matters from the perspective of the criminal law is whether the actor causing their deaths possessed the requisite level of mens rea. Thus, the lens of the criminal law concept of intent can be used to examine the choices we, as a society, make in designing environmental policy. This perspective can be informed not only by the basic principles of criminal law but also by recent developments in criminology, the law of corporate and environmental crime, and relevant historical precedent. This article makes the case that the criminal law mode of analysis could prove useful to prosecutors and policymakers. Ultimately, the article will apply this theoretical framework to environmental policy decisions currently challenging local, state, and national governments

Strength in Numbers (of Words): Empirical Analysis of Preambles and Public Comments

The empirical observation of a four-decades-long trend towards longer and longer federal agency rulemakings laid the foundation for this series of studies and associated law review articles. The second in that series, this work will add necessary data, test important hypotheses, and draw new conclusions to guide policymakers. Any serious observer of the Federal Register recognizes that different sections of a rulemaking serve different purposes. And agencies have historically utilized one section in particular to insulate their rules from judicial vacation or remand – the “concise general statement of basis and purpose.” Thus, this new study will collect and analyze the word count data for this section in isolation, testing for correlations between longer statements and success in the courts. When confronted with the empirical trend of increasing Federal Register pages per rule over time, administrative law scholars invariably pointed to an explanation external to the rulemaking agency—the number of public comments. Legally, agencies must respond to significant comments in the preamble to the final rule, so logic dictates that more comments would lead to more Federal Register pages. Meanwhile in the real world, use of personal computers, access to the internet, and awareness of regulations.gov have all risen in parallel with rules getting longer and have all made commenting on rulemaking easier over time. The empirical picture would thus not be complete without examining the potential connection between the number of comments and the length of a rulemaking

Private Environmental Nudges

Environmentalist outcry against single-use plastics has rapidly translated into municipal and state policy. Bans and taxes on plastic bags, and, to a lesser extent, polices targeting plastic food/drink containers and plastic straws, have popped up all over the country. Many large national corporations, including Starbucks, Disney, and Hyatt to name a few, have also taken steps to reduce the amount of single-use plastics that their customers add to the waste stream.Two ongoing discussions in the environmental law scholarship parallel these innovations in policy. The first re-examines the proper role for subnational governments in environmental policymaking, reviving a debate about environmental federalism that dates back decades. The second, to which this paper contributes, examines the role for what Professor Michael Vandenbergh dubbed “Private Environmental Governance” (PEG). That research has thusfar focused on the efforts of some of the world’s largest corporations. But small, locally-owned businesses can contribute positively to private environmental governance, too.This paper identifies a subset of PEG rooted in Richard Thaler and Cass Sunstein’s famous behavioral economics theory of “nudges.” Their basic insight was that the way choices are presented (“choice architecture”) greatly influences the quick valuation calculations and decisions humans make. In addition to providing a typology of private environmental nudges, describing four archetypes, this work presents a case study based on empirical observation of a local business

Uniform Climate Control

Part I will briefly recount the recent history of subnational environmental law in the United States and the scholarly treatment of it. Part II will do the same with the model- and uniform-law movements. Part III will focus on the most successful organization in terms of drafting and promoting model legislation at the subnational level—the American Legislative Exchange Council (“ALEC”). Because ALEC’s efforts on climate change attempt to entrench inaction for the benefit of its fossil fuel industry members, Part IV examines organizations and resources that facilitate subnational action on climate change. In doing so, it also provides a taxonomy of such law-promoting mechanisms. Part V begins to confront the federalism implications of the model climate law ecosystem, analyzing it first as a policy experiment in the “laboratories of democracy” mold and next as a way for policies to spread from one government to another. The work concludes with a hopeful prescription for more balance in model law advocacy to counteract the distortion of democracy caused by the current situation

Connecting the Dots: Diagnosed on the Spectrum Later in Life

This workshop presents the journey Anthony and Lori took together to get Anthony diagnosed on the autism spectrum. Topics include the sequence of realizations they made along the way and how these realizations pointed to one conclusion: that Anthony was on the spectrum, confirmed by a diagnosis

Environmental Indifference

An incarcerated American underclass, disproportionately comprised of minority citizens, has been compelled to live in an unconstitutionally polluted environment. Exposure to radon gas in indoor air is just one example of that pollution. Fortunately, the legal effort to address that particular condition of confinement has already begun; the theoretical and practical discussion in this work strives to both highlight the importance of the issue and inform the doctrinal development. The Eighth Amendment precedent created on the specific issue of radon exposure will very likely control the courts’ treatment of other environmental harms ignored by prison officials. This work, using radon exposure litigation as a case study, explains how environmental harms in prisons threaten lives and violate the Constitution