The Co-Evolution of Sustainable Development and Environmental Justice: Cooperation, Then Competition, Then Conflict

This article explores sustainable development and environmental justice as potentially conflicting policy goals. Sustainable development includes equity as one of its five dimensions (in addition to environment, economy, time, and space), whereas environmental justice focuses principally on equity. Over time there is likely to be an increasing number of contexts in which sustainability-based policy solutions do not satisfy environmental justice advocates

Endangered Species Act Innovations in the Post-Babbittonian Era—Are There Any?

One of the mysteries of environmental policy in the Bush Administration will be how and why it squandered an opportunity to continue market-based administrative reforms of the Endangered Species Act begun, ironically, in the Clinton Administration under the direction of then Secretary of the Interior Bruce Babbitt. This article traces the momentum built for reform in the Babbittonian era and examines what has not happened since then

‘No Net Loss’ - Instrument Choice in Wetlands Protection

While not a high priority issue for most people, the public has long recognized the general importance of wetlands. Since President George H.W. Bush\u27s campaign in 1988, successive administration have pledged to ensure there would be no net loss of wetlands. Despite these continuous presidential pledges to protect wetlands, in recent decades, as more and more people have moved to coastal and waterside properties, the economic benefits from developing wetlands (and political pressures on obstacles to development) have significantly increased. Seeking to mediate the conflict between no net loss of wetlands and development pressures, the U.S. Environmental Protection Agency (EPA) and Army Corps of Engineers (Corps) have employed a range of policy instruments to slow and reverse wetlands conversion. Through the 1970s and 1980s, the EPA and the Corps relied on prescriptive regulation that discouraged development of wetlands and, even if a permit for wetland filling were granted, required on-site mitigation of destroyed wetlands to ensure no net loss. To defuse the growing political pressure for substantial change to this 404 Permit process for developing wetlands, however, since the 1990s the agencies and state governments have promoted a market mechanism that seeks to ensure wetlands conservation at minimum economic and political cost. This instrument is known as wetlands mitigation banking (WMB). In WMB, a bank of wetlands habitat is created, restored, or preserved and then made available to developers of wetlands habitat who must buy habitat mitigation as a condition of government approval for development. This mechanism has also provided a model for endangered species protection and is in the process of being extended to other settings including watershed protection. Given the shift in emphasis from prescriptive regulation to trading, the government\u27s longstanding pursuit of no net loss of wetlands provides a particularly useful case study for comparing the use of regulatory and market instruments for environmental protection. Indeed, WMB provides a rare example of robust trading outside the air pollution context and the trading habitat-based goods raises very different concerns than seen in trading mobile pollutants. Examining the evolution of WMB also forces us to think carefully over how to assess the success of a trading program. The traditional measure would likely be efficiency. But one must also consider effectiveness. In this regards, WMB poses two different types of failures - failure of instrument design (a front-end problem) and failure of implementation through monitoring and enforcement (a back-end problem). As many of the case studies in this book illustrate, performance of WMB depends critically both on institutional design and implementation. Another important measure of success concerns distributional equity. Who wins and who loses from banking? Such concerns are far more difficult to assess as good or bad policy in habitat trading than the traditional hot spots of pollutant trading programs. The chapter ends by drawing out key lessons for market-based approaches to watershed protection

Presidential Exit

The biggest problem that we\u27re facing right now has to do with George Bush trying to bring more and more power into the executive branch and not go through Congress at all, and that\u27s what I intend to reverse when I\u27m president of the United States of America. Why is @BarackObama constantly issuing executive orders that are major power grabs of authority? President Trump signed the 30th executive order of his presidency on Friday, capping off a whirlwind period that produced more orders in his first 100 days than for any president since Harry Truman. The rash of executive orders underlines Trump\u27s focus on reversing as much of the Obama administration\u27s policy agenda as he can

The Permit Power Revisited: The Theory and Practice of Regulatory Permits in the Administrative State

Two decades ago, Professor Richard Epstein fired a shot at the administrative state that has gone largely unanswered in legal scholarship. His target was the permit power, under which legislatures prohibit a specified activity by statute and delegate to administrative agencies the discretionary power to authorize the activity under terms the agency mandates in a regulatory permit. Accurately describing the permit power as an enormous power in the state, Epstein bemoaned that it had received scant attention in the academic literature. He sought to fill that gap. Centered on the premise that the permit power represents a complete inversion of the proper distribution of power within a legal system, Epstein launched a scathing critique of regulatory permitting in operation, condemning it as a racket for administrative abuses and excesses. Epstein\u27s assessment of the permit power was and remains accurate in three respects: it is vast in scope, it is ripe for administrative abuse, and it has been largely ignored in legal scholarship. The problem is that, beyond what he got right about the permit power, most of Epstein\u27s critique was based on an incomplete caricature of permitting in theory and practice. This Article is the first to return comprehensively to the permit power since Epstein\u27s critique, offering a deep account of the theory and practice of regulatory permits in the administrative state. This Article opens by defining the various types of regulatory permits and describing the scope of permitting in the regulatory state. From there it compares different permit design approaches and explores the advantages of general permits, including their ability to mitigate many of the concerns Epstein advanced. This Article then applies a theoretical model to environmental degradation problems and concludes that if certain conditions are met, general permits can effectively respond to many of the complex policy problems of the future. Finally, this Article adds to the scholarship initiated by Epstein by proposing a set of default rules and exceptions for permit design and suggesting how they apply to complex policy problems