Radiative Forcing: Climate Policy to Break the Logjam in Environmental Law

This article recommends the key design elements of US climate law. Much past environmental law has suffered from four design problems: fragmentation, insensitivity to tradeoffs, rigid prescriptive commands, and mismatched scale. These are problems with the design of regulatory systems, not a rejection of the overall objective of environmental law to protect ecosystems and human health. These four design defects raised the costs, reduced the benefits, and increased the countervailing risks of many past environmental laws. The principal environmental laws successfully enacted since the 1990s, such as the acid rain trading program in the 1990 Clean Air Act (CAA) Amendments and the 1996 Safe Drinking Water Act amendments, were consciously designed to overcome the prior design defects. New law for climate change should improve on the design of past environmental law, fostering four counterpart solutions to the prior design defects: cross-cutting integration instead of fragmentation, attention to tradeoffs instead of their neglect, flexible incentive-based policy instruments such as emissions trading in place of rigid prescriptive commands, and optimal instead of mismatched scale. This article advocates a design for U.S. climate policy that embodies these four design solutions. It proposes a policy that is comprehensive in its coverage of multiple pollutants (all GHGs), their sources and sinks; multiple sectors (indeed economy-wide); and multiple issues currently divided among separate agencies. It advocates explicit attention to tradeoffs, both benefit-cost and risk-risk (including both ancillary harms and ancillary benefits), in setting the goals and boundaries of climate policy. It advocates the use of flexible market-based incentives through an efficient cap-and-trade system, with most allowances auctioned along multi-year emissions reduction schedules that are reviewed periodically in light of new information. And it advocates matching the legal regime to the environmental and economic scale of the climate problem, starting at the global level, engaging all the major emitting countries (including the U.S. and China), and then implementing at the national and sub-national levels rather than a patchwork bottom-up approach. In so doing it addresses the roles of EPA regulation under the current CAA and of new legislation. It argues that among environmental issues, climate change is ideally suited to adopt these improved policy design features

The Regulation of Technology, and the Technology of Regulation

Regulation may inhibit or stimulate technological change. The relationship depends on the technology of regulation - the design and instrument choice of regulatory policy. This essay examines the history of economic and social regulations over the last three decades, the explanatory power of theories of regulatory politics, the choice of regulatory instruments, the assessment of regulatory impacts, and the influence of each of these on the innovation and diffusion of technology (and of regulation). It concludes with recommendations for the future of regulation and technology

On the Clawbacks in the Madoff Liquidation Proceeding

At a Meeting of Creditors held on February 20, 2009, counsel for the trustee overseeing the liquidation of Bernard L. Madoff Investment Securities, LLC, announced the advent of clawback suits seeking to recover sums paid out to defrauded investors.\u27 This Essay explains the legal framework for the clawback suits and anticipates that many investors in the Ponzi scheme 2 will not have submitted claims by the July 2, 2009 deadline, which may result in clawback litigation before multiple courts. The Essay then discusses ways to streamline clawbacks and other Madoff-related litigation so that investors who have already been defrauded are not further damaged by the measures taken to compensate them. It closes with an invitation for additional proposals

The Diffusion of Regulatory Oversight

The idea of cost-benefit analysis has been spreading internationally for centuries — at least since an American named Benjamin Franklin wrote a letter in 1772 to his British friend, Joseph Priestley, recommending that Priestley weigh the pros and cons of a difficult decision in what Franklin dubbed a “moral or prudential algebra” (Franklin 1772) (more on this letter below). Several recent studies show that the use of benefit-cost analysis (BCA), for both public projects and public regulation of private activities, is now unfolding in countries on every habitable continent around the world (Livermore and Revesz 2013; Quah and Toh 2012; De Francesco 2012; Livermore 2011; Cordova-Novion and Jacobzone 2011). This global diffusion of BCA is intermingled with the global diffusion of regulatory capitalism, in which privatized market actors are supervised by expert regulatory agencies (Levi-Faur 2005; Simmons et al. 2008), and with the international spread of ex ante regulatory precautions to anticipate and prevent risks despite uncertainty (Wiener et al. 2011)

On the Clawbacks in the Madoff Liquidation Proceeding

At a Meeting of Creditors held on February 20, 2009, counsel for the trustee overseeing the liquidation of Bernard L. Madoff Investment Securities, LLC, announced the advent of clawback suits seeking to recover sums paid out to defrauded investors.\u27 This Essay explains the legal framework for the clawback suits and anticipates that many investors in the Ponzi scheme 2 will not have submitted claims by the July 2, 2009 deadline, which may result in clawback litigation before multiple courts. The Essay then discusses ways to streamline clawbacks and other Madoff-related litigation so that investors who have already been defrauded are not further damaged by the measures taken to compensate them. It closes with an invitation for additional proposals

Book Review

Reviewing, Richard A. Posner, Catastrophe: Risk and Response (Oxford University Press, 2004) and Jared Diamond, Collapse: How Societies Choose to Fail or Succeed (Viking, 2005

Think Globally, Act Globally: The Limits of Local Climate Policies

State-level actions to address global climate change, such as laws and litigation recently undertaken by California and by several Northeastern states to limit greenhouse gas (GHG) emissions, reflect creative legal strategies understandably intended to achieve a major environmental objective while the US federal government has not joined the Kyoto Protocol and has not yet adopted national legislation. But even assuming that forestalling global climate change is urgently needed, state-level action is not the best way to do so. Acting locally is not well suited to regulating moveable global conduct yielding a global externality. Legally, state-level action confronts several obstacles, including the dormant commerce clause, dormant treaty clause, interstate compacts clause, and standing to sue. Politically, local action to limit GHG emissions confronts the obstacle that it would incur in-state costs for minimal in-state benefits (raising the positive question why states are acting at all). Normatively, state-level action would make only a minor difference in global emissions, and may even yield perverse results by spurring emissions leakage to other jurisdictions. Given that such state-level action is actually occurring, its best uses include stimulating technological change, learning from experimentation with policy designs, and fostering momentum for broader national and international action. Yet varied policy experiments may conflict with a larger harmonized regime. The best approach to a global externality is a well-designed global regime that engages all major GHG emitters