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

The Arrow of the Law in Modern Administrative States: Using Complexity Theory to Reveal the Diminishing Returns and Increasing Risks the Burgeoning of Law Poses to Society

This article is the third in my series of articles exploring the application of complex adaptive systems (CAS) theory to legal systems. Building on the model outlined in the first two installments (in the Duke and Vanderbilt law reviews), this work examines the arrow or direction of the legal system in the context of the administrative state. Drawing from diverse work such as Burke\u27s study of history\u27s nonlinearity and Tainter\u27s classic study of the collapse of complex civilizations, we argue that the administrative state is becoming too resource intensive and burdened by a proliferation of rules

The End Externalities Manifesto: Restatement, Loose Ends, and Unfinished Business

Don Elliott and Dan Esty were among the chief architects of Environmental Law 2.0-the shift that infused so-called command-and- control regulatory regimes with market-based tools in search of cost- effective solutions. The mix of incentives, trading, banking, reporting, bubbles, and other techniques revolutionized the way we think about how to attack environmental problems like pollution and habitat loss. In their End Environmental Externalities Manifesto ( Manifesto ) they are at it again. This time, however, their proposed revolution goes in a different direction. They argue that the guiding light of economic efficiency, which took environmental law far in improving environmental conditions, is not up to the task of finishing the job. In their view, the efficiency quest took a wrong turn in the 1980s, when benefit-cost analysis using the Kaldor-Hicks net social benefit standard became a dominant decision-making tool for pollution regulation. The result was that we became comfortable with what could be called efficient pollution-we allow emissions if the cost of reducing them exceeds the value of the social benefits reducing them would produce. But those residual emissions aren\u27t harmless. They are negative environmental externalities that injure people and degrade ecosystems. The central thesis of Manifesto is that finishing the job of environmental law means ending these environmental externalities, and that an efficiency-based approach based on net social benefits won\u27t get us there. Rather, to end all externalities will requiring incorporating an environmental rights model aimed at providing compensation to those harmed by residual emissions. Manifesto argues that this would fulfill the polluter pays principle, an idea touted as a bedrock of American environmental law, but which is often suspended under net social benefits analysis. My hunch is that there will be objections to Manifesto\u27s critique of benefit-cost analysis as it has played out in environmental law. For one thing, taking environmental law broadly, strict adherence to benefit-cost analysis does not play a large role outside of pollution control regulation. Nor does Manifesto abandon benefit-cost analysis by any means. Elliott and Esty acknowledge its value for measuring economic efficiency and in guiding some regulatory decisions. But maximizing economic efficiency, they argue, is not the right way to frame environmental law for ending all externalities, if that is our social goal

SLIDES: The Future Public Law of Private Ecosystems

Presenter: J.B. Ruhl, Florida State University Law School 18 slide

Managing Systemic Risk in Legal Systems

The American legal system has proven remarkably robust even in the face of vast and often tumultuous political, social, economic, and technological change. Yet our system of law is not unlike other complex social, biological, and physical systems in exhibiting local fragility in the midst of its global robustness. Understanding how this “robust yet fragile” (RYF) dilemma operates in legal systems is important to the extent law is expected to assist in managing systemic risk—the risk of large local or even system-wide failures—in other social systems. Indeed, legal system failures have been blamed as partly responsible for disasters such as the recent financial system crisis and the Deepwater Horizon oil spill. If we cannot effectively manage systemic risk within the legal system, how can we expect the legal system to manage systemic risk elsewhere? This Article employs a complexity science model of the RYF dilemma to explore why systemic risk persists in legal systems and how to manage it. Part I defines complexity in the context of the institutions and instruments that make up the legal system. Part II defines the five dimensions of robustness that support functionality of the legal system: (1) reliability, (2) efficiency, (3) scalability, (4) modularity, and (5) evolvability. Part III then defines system fragility by examining the internal and external constraints that impede legal system robustness and the fail-safe system control strategies for managing their effects. With those basic elements of the RYF dilemma model in place, Part IV defines systemic risk and explores the paradoxical role of increasingly organized complexity brought about by fail-safe strategies as a source of legal system failure. There is no way around the RYF dilemma—some degree of systemic risk is inherent in any complex adaptive system—but the balance between robustness and fragility is something we can hope to influence. To explore how, Part V applies the RYF dilemma model to a concrete systemic risk management context—oil drilling in the deep Gulf of Mexico. The legal regime governing offshore oil exploration and extraction has been blamed as contributing to the set of failures that led to the catastrophic Deepwater Horizon spill and is at the center of reform initiatives. Using this case study, I argue that the RYF dilemma model provides valuable insights into how legal systems fail and how to manage legal systemic risk

What Happens When the Green New Deal Meets the Old Green Laws?

The multi-faceted infrastructure goals of the Green New Deal will be impossible to achieve in the desired time frames if the existing federal, state, and local siting and environmental protection statutory regimes are applied. Business, labor, property rights, environmental protection, and social justice interests will use them to grind the Green New Deal to a snail\u27s pace. Using the renewable energy transition as the infrastructure case study, this Essay is a call to arms for the need to design New Green Laws for the Green New Deal. Part I briefly summarizes what we are learning about the pace and magnitude of climate change impacts and the need for rapid and robust mitigation and adaptation responses. Part II demonstrates the magnitude and urgency of new renewable energy infrastructure needed to fulfill Green New Deal goals. Part III points to the intensity of pushback that renewable energy has faced under existing siting and environmental protection laws. Part IV uses the Texas wind power experience to argue that mobilizing the Green New Deal energy transition will require resolving significant trade- offs regarding environmental protection, property rights, process, and sovereignty. Ultimately, for the Green New Deal to succeed in its renewable energy (and other) infrastructure agendas, siting and environmental protection regulatory regimes will need to tolerate more streamlined, top- down, preemptive processes, as well as extensive use of eminent domain powers, which necessarily will require new ways of satisfying demands for distributive justice and public participation

Harmonizing Distributed Energy and the Endangered Species Act

This Article explores ways of harmonizing distributed energy and the ESA, a goal consistent with the national policy for renewable energy conservation. Several legal practitioners and scholars have identified the ESA as a potentially significant constraint on the siting and operation of wind power facilities. The ESA has also been identified as a potential barrier to renewable energy in general, as solar power, biomass, and ocean tide and wave facilities could have their own sets of impacts triggering ESA regulation. But most of this attention has been devoted to utility-scale renewable energy, with distributed energy largely ignored or perhaps assumed not to be a problem. Before we dive deep into distributed energy, however, it would be prudent to develop an ESA compliance blueprint now rather than scrambling later at the “shovel ready” stage as has happened in the utility-scale wind power context. Part II thus opens by framing the distributed energy problem for the ESA, showing how the proliferation of distributed energy facilities can present ESA compliance issues and how traditional ESA compliance solutions do not work well in that context. Part III of the Article explores compliance innovations the FWS could implement for distributed energy administratively, without need for legislative reform of the ESA. By providing low cost, expeditious compliance security and stability for distributed energy, the FWS can fulfill the ESA’s goals and promote a better energy future for all species