1,720,999 research outputs found
Coercing Collaboration: The Chesapeake Bay Experience
No full textThis Article uses a detailed case study of the Chesapeake to describe an emergent model of intergovernmental administration tailored to address our largest-scale environmental problems. The Obama EPA’s “total maximum daily load” (“TMDL”) in the Chesapeake has yet to be replicated. But it should be. The TMDL and its supporting norms were unique as an operational plan, achieving a level of transparency, accountability, means/ends rationality, and continuous improvement that were unprecedented at its scale. And whether this model can be replicated elsewhere turns out to be as much a question of law as of politics
Don\u27t Go in the Water: On Pathological Jurisdiction Splitting
No full textWaters and water rights have endured (or induced) a uniquely pathological tendency in our tradition to split up the authority to declare the operative legal interests therein. By studying three seemingly unrelated areas of waters and water rights law, this tendency is brought out in its essence and linked to explicit foundations and likely causes. Ultimately, this kind of extreme jurisdiction splitting is rendering our waters ungovernable, forcing even the most basic legal questions to go undecided. The last part of the article introduces three different reform pathways but cautions against the search for quick fixes of any kind
Qualitative, Quantitative, and Integrative Conservation
No full textIn this essay for a symposium on new directions in environmental law, I reflect back on the last 35 years of Endangered Species Act (ESA) practice and offer several modest reforms. My claim is that conservation has been growing increasingly quantitative and risk-based, much like other fields of regulation, but that big problems lie ahead if this trend continues with the ESA as currently structured. In my view, the quantitative demands of listing species, designing recovery objectives, and designating so-called \u27critical habitat\u27 are depleting the resources we have put into the ESA because it is an expression of fundamentally qualitative hopes. Thus, the statute is not structured to guide much of the decision-making that is now required, leaving its agents to interpret and implement an Act that diverges substantially from the actual contexts in which it is implemented. If the Fish & Wildlife Service and the NOAA Fisheries Service are to bring these two divergent approaches to conservation into a more productive relationship, they must start by reorganizing themselves to reflect the informational environments in which they operate. This means adapting institutionally to carry out only those conservation actions that are best carried out centrally while distributing the rest of their workload to more localized or non-centralized partners
A Future for Paris? Federalism, the Law of Nations, and U.S. Courts
No full textThe \u27We Are Still In\u27 movement raised novel and urgent questions about the status of executive agreements, treaties, and customary international law in U.S. courts. As sub-national governments increasingly face difficult trade-offs between climate change mitigation and adaptation, American courts will confront challenges thereto likely grounded in various types of dormant preemption of state and local initiatives. This symposium essay argues that our courts must first situate sub-national actions on climate mitigation within a complex and evolving context of mitigation as a globally-scaled collective good that can only be provided if contributions thereto accumulate over time. They must also avoid lumping sub-national action advantaging some firms in a competitive market under the old unionist fears of protectionism in all things local. A bottom-up movement like \u27We Are Still In\u27 may be uniquely positioned to keep the nation\u27s pledges on climate change mitigation — and its obligations under U.S. treaties and public international law — but only if our courts understand the stakes and the fine print of our foreign affairs federalism
Retreat Alternatives in NEPA: A Tool for the Perplexed
Get PDF30 pagesDecades ago, United States Department of Agriculture (USDA), Department of Interior, and state and tribal officials began building massive budgets and interagency capacities to fight wildland fires. Coincident with that build-up was our seemingly inexorable colonization of the wildland urban interface (WUI)—much of it in fire-prone areas
Technology-Based? Cost Factoring in U.S. Environmental Standards
Get PDFEnvironmental controls in the United States are often said to be “technology-based” because the polluter’s duties are determined by the available technology for controlling that pollution rather than by the social costs and benefits of doing so. Indeed, this is much of what distinguishes U.S. environmental law post-1970 from that which preceded it. But technology-based standards have in fact weighed the costs of controlling pollution in unique, often obscure ways, yielding an analysis that defies standardization and basic notions of transparency. Often lumped under an umbrella heading called “feasibility” analysis and justified on the grounds that it avoids many of the known pitfalls of cost-benefit analysis, the factoring of cost into technology assessments hands our Environmental Protection Agency a uniquely hard problem of prediction: the inducement of innovation. This Article traces the evolution of the practice to the state of the art today, offers several clarifications upon reflection, and suggests that cost estimation in technology- based standard setting is actually more likely to be a useful decision input than the orthodox cost-benefit balancing procedures. Most importantly, it is more likely to accurately assess the possibilities of inducing innovation—accuracy that is increasingly vital to meeting environmental challenges like climate change
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