‘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

Manifesto for the Radical Middle

This article advocates an active, concerted strategy for staking out the middle ground in environmental policy. The middle ground - the domain of middle of the roaders - has conventionally been defined by compromise, and as a result lacks any defining content and principles. I propose an aggressive middle that uses enriched sources of information, agency professional judgment, and transparent adaptive management as its components

Working Both (Positivist) Ends Toward a New (Pragmatist) Middle in Environmental Law

This review of Daniel Farber\u27s recent book Eco-pragmatism, in which he argues on behalf of taking more pragmatic approaches to the development of environmental policy, provides both the background necessary for appreciating Farber\u27s union of ecosystem dynamics science and environmental pragmatism philosophy, and the basis for extending the new eco-pragmatism approach into natural resources conservation settings. Eco-pragmatism implies the intersection of two components-the eco, being the rich and developing field of ecosystem science and management, and the pragmatism, being the classical American pragmatist philosophy represented today in environmental settings through the emergence of environmental pragmatism philosophy. Unfortunately, Eco-pragmatism provides little background on either of these sources of eco-pragmatist approaches to environmental law. The review demonstrates that the science of ecology and the philosophy of environmental pragmatism do indeed make a fitting pair, and that Farber has provided the service of combining them in an approach that is adapted to modern environmental law and policy. The eco-pragmatist approach is different from either of the existing models for environmental decision making in they each relies on positivist foundations that portray environmental decisions as matters purely of economic efficiency (one extreme) or environmental preservation (the opposite extreme), whereas pragmatism looks to experience rather than dogma as its source of theoretical foundation. As Farber describes it, eco-pragmatism uses dynamical regulatory frameworks to blend economic efficiency and environmental protection in an approach that uses environmental goals to maintain a baseline of protection and economic analysis to place a check on overprotection. Unfortunately, Farber demonstrates the force of the eco-pragmatist approach only in the narrow setting of pollution and its public health consequences. The review demonstrates that eco-pragmatism also has value in the natural resource conservation setting, where emerging themes of biodiversity, ecosystem services, and adaptive management correspond to Farber\u27s framework for environmental baseline, economic backstop, and dynamical regulation. Eco-pragmatism thus offers some deliverance from the seemingly endless warfare between the positivist ends that has burdened environmental policy in all its applications

The Presidential Memorandum on Mitigation

On November 3, 2015, President Obama issued a Presidential Memorandum aimed at unifying the mitigation practice and policy for activities carried out and approved by the Departments of Defense, Interior, and Agriculture, the EPA, and the National Oceanic and Atmospheric Administration... See Mitigating Impacts on Natural Resources from Development and Encouraging Related Private Investment, 80 Fed. Reg. 68743 (Nov. 6, 2015). The broad policy goal of the Memorandum is to ensure that the agencies’ mitigation policies “are clear, work similarly across agencies, and are implemented consistently within agencies.†Id. at 68743. The Memorandum also emphasizes the need for transparency, measurable performance standards, and clear policies regarding who is responsible for what. Id. at 687465. The Memorandum develops four key themes working toward those goals... The Memorandum clearly represents a milestone in federal natural resources mitigation policy. If agencies maximize implementation of the sequencing, net outcome, advance compensation, and large-scale planning directives, and do so consistently, transparently, and with measurable performance standards, mitigation in the United States would look considerably different from its present practice

Past, Present, and Future Trends of the Endangered Species Act

this article is designed to convince readers that the past, present, and future trends of the ESA are all the same. To provide context, Part I presents a brief overview of the structure of the statute and the kinds of decisions that must be made under it. Part II delves more deeply into each of the topics covered in the NR&E issues, eight in all, providing in each case the necessary legal background followed by a discussion of how the topic played out in the two NR&E issues. Finally, I conclude with a brief summary of my own perspectives on how these eight themes will continue to evolve in Congress, the agencies, and the courts

The Political Economy of Climate Change Winners

article published in law reviewMany people and businesses in the United States stand to receive market and nonmarket benefits from climate change as it moves forward over the next 100 years. Speaking of climate change benefits is not for polite 'green' conversation, but ignoring them — as climate policy dialogue and legal scholarship consistently have — will not make them go away. It is important to take climate change benefits into account if they lead people and businesses to believe that climate change will not be so bad for them, or even to believe it has made them into climate change winners. Thus, whereas legal scholars have devoted considerable attention to how law and policy should respond to the prospect of vast numbers of climate change losers, this Article is the first to ask what law and policy should do about the climate change winners. Part I of the Article develops a policy-relevant typology of climate change benefits and beneficiaries, showing their potential to be significant in magnitude, diverse, and widely dispersed. Part II examines how climate change benefits are likely to lead many people and businesses to conclude they are climate change winners, in that they believe they are better off because of climate change. Part III frames the prospect of a class of climate change winners in the political economy of climate policy, arguing that people and businesses will fall in vastly different climate impact profiles that will lead to an even more complex and contested climate policy dynamic. Using the background developed in Parts I through III, the remainder of the Article turns to normative dimensions and positive legal responses. Part IV considers and refutes the arguments climate change winners might make to shape climate change mitigation policy around their interests in securing climate change benefits. Climate change mitigation policy should ignore climate change winners by design, not be default. By contrast, Part V argues that climate change adaptation policy should embrace climate change winners by making efficient investments to harness climate change benefits that increase resilience and reduce vulnerability to climate change. Part VI argues, however, that given the goal of mitigation policy eventually to arrest climate change, legal doctrine must ensure that no vested rights take hold in climate change benefits

Environmental Law at the Borders

Pipelines to the north. Walls to the south. Between President Trump\u27s issuance of a permit for the Keystone XL pipeline crossing from Canada and his promise to build The Wall, the politics of our national borders rarely have been in as much turmoil as they are today. And as with any infrastructure project, environmental policy has been deeply in play all the way. But the environmental law of the borders might surprise you. Indeed, arguably there isn\u27t any for these two projects