Tag Archives: Environmental Law
Jan 31, 2024 Eric BiberEnvironmental Law
The Inflation Reduction Act (IRA), enacted by Congress in 2022, is by far the most significant piece of climate legislation enacted by Congress, despite (or perhaps because of) its name. The IRA provides billions of dollars of tax credits, subsidies, grants, and other support for the development and deployment of the technology we need to decarbonize our economy: electric vehicles, electric vehicle chargers, industrial-scale renewable energy, transmission lines to connect renewable energy sources to consumers, carbon capture technologies, and much, much more. Models indicate that the IRA will result in substantial progress towards decarbonizing the American economy. And the investment in decarbonization technology will not just have direct climate benefits. By creating economic investments that depend on decarbonization progress, the IRA can help build future political support for more progress on decarbonization down the road.
But while money is necessary to build all of this infrastructure that allows for decarbonization, it is not sufficient. The first three parts of Ruhl and Salzman’s The Green’s Dilemma: Building Tomorro’s Climate Infrastructure do a nice job of providing an overview of why. In the United States, constructing large-scale infrastructure–such as transmission lines or large renewable energy facilities, or obtaining the minerals we need for electric vehicle batteries–requires permits as well. Permits from federal, state, and local governments. Permits that can take months or years to obtain, and that can be subject to litigation that adds time and uncertainty. And ironically, many of those permits come from traditional environmental law: permits under the Clean Water Act or the Endangered Species Act, for instance. And for federal permits under other, non-environmental laws, the federal government is required to undertake environmental review pursuant to the National Environmental Policy Act (NEPA) before issuing the permit. And the delays caused by permitting are not just an issue of adding cost (and therefore reducing the climate benefits the US obtains for each dollar spent), though this is important. Perhaps even more important from the perspective of climate policy is that delay in implementation of decarbonization technology and infrastructure means we spend more time emitting more carbon into the atmosphere–when climate policy as it stands is a race against time.
Ruhl and Salzman aren’t the first ones to have noted the challenge, though most of the prior discussion has been outside the pages of law reviews (for examples of prior work, see this article and this article). The fact that Ruhl and Salzman have placed the topic on the agenda of legal scholars is a useful contribution.
But the more important contribution of the piece–and why it warrants praise in Jotwell–is the effort by Ruhl and Salzman to identify possible paths forward. Drawing on controversial streamlining efforts like Senator Manchin’s permit streamlining bill, Ruhl and Salzman identify four different ways in which existing permitting regimes might be adjusted to facilitate the development of decarbonization infrastructure and technology: limiting the jurisdiction or analytic scope of permitting or environmental review; centralizing decisions at higher levels of government (often the federal government) to at least advance coordination among multiple permitting agencies, or at the extreme, preempting some or all regulation for particular projects; establishing enforceable timeframes for permitting and environmental review decisions; and increasing the amount of information available to agencies doing permitting and review to make the processes go faster and better.
As Ruhl and Salzman note, all of these various tools narrow the scope or weaken the strength of existing environmental laws. And thus, as they say, the Greens’ Dilemma. Should environmental groups support changes to bedrock environmental laws–laws they have fought to enact, defend, and implement for about fifty years–in order to advance the development of the infrastructure needed to decarbonize our economies? There are real risks here: All new infrastructure, no matter how climate-friendly, will have some local or regional environmental impacts. Streamlining efforts will not always be perfectly targeted to truly “green” projects, and in any case, there is deep debate within environmental circles about whether to pursue technologies such as carbon capture. Cutting back on public participation and the ability of local communities to fight projects through the administrative and judicial processes is in sharp tension with a push by environmental justice advocates to give those local communities more voice and power to stop projects they do not want in their neighborhoods, and add more equity to where and how we do major infrastructure projects. And finally, there is always the risk of the slippery slope–that streamlining will not stop with decarbonizing projects, but will spread to fossil fuel or other projects that environmental groups have dedicated their existence to fighting.
Thus, as Ruhl and Salzman well note, some tradeoffs will have to be made. And they identify three paradigms or scenarios that exemplify those tradeoffs. At one end, we could do nothing to adjust our current permitting and environmental review system, cross our fingers, and hope for the best that we can get enough infrastructure through the system to meet our climate needs–perhaps by staffing up agencies to process permits faster and better. At the other end, we could follow the path laid out by legislation such as the system Congress set up for the border wall, where Congress repealed all environmental laws and forbade any judicial review of the construction project. In between is what Ruhl and Salzman call “tweaking.”
As Ruhl and Salzman aptly point out, none of these choices involve a simple environment versus development tradeoff. Even doing nothing and keeping the status quo involves environmental costs, as we run an increased risk of not having an adequate and timely push for decarbonization, which in turn increases the climate impacts for ecosystems, species, and people around the world.
At the end of their piece, Ruhl and Salzman propose a “grand bargain”: create a federal commission that identifies key climate infrastructure; those projects would receive significant streamlining in the form of a one-stop single permitting process that would holistically consider all environmental issues; impose enforceable timeframes for permitting and environmental review, with accelerated judicial review; and develop a central database with information about permitting and environmental review from all projects (not just those that are streamlined) to facilitate faster and better permitting.
One can critique the authors’ proposal. There are serious questions. Why should we trust a federal commission to identify good projects? Imagine a future administration that is hostile to climate policy that uses the process to accelerate coal mining projects on a national basis. How will the revised process address the historical inequities of environmental regulation and siting of infrastructure projects? Here, Ruhl and Salzman do not provide details, other than to note that any such consideration should be built into the single-permit process. Are there kinds of projects, or kinds of issues, in which we might be more (or less) concerned about losing separate review and constraining judicial review and public participation? Would we want more nuance? And can the political coalition that shepherded through the IRA manage to unite for such a drastic change?
These are all important questions. But Ruhl and Salzman’s piece is beneficial in pushing us to consider these questions. They aren’t questions that are going to go away. And we will be answering them one way or another, even if it is only through inaction. But inaction, too, has environmental costs.
Mar 5, 2023 Steve GoldEnvironmental Law
“It’s obvious” is one of the all-time putdowns of a paper at a workshop. But like many putdowns, this one comes with a ready-made riposte: “If it’s so obvious,” the author might ask, “why hasn’t anyone said it before?”
Dave Owen willingly invites this exchange in the opening of The Negotiable Implementation of Environmental Law. The article begins with a hypothetical factory-siting scenario that to “many practicing environmental lawyers…would sound routine.” (P. 3.) What makes this familiar scenario interesting? The fact that negotiation helps define at least some of the legal obligations imposed by each of numerous implicated facets of environmental law. That fact, Owen persuasively argues, is under-appreciated in environmental law teaching, scholarship–and reform proposals.
In a broad yet specific survey of canonical environmental statutes, Owen describes the central role negotiation plays. He identifies statutory provisions that permit or encourage negotiation (such as CERCLA’s detailed provisions for Superfund remedial action agreements) as well as statutory gaps that might be filled by regulatory edict but leave room for possible negotiation (such as the Endangered Species Act’s requirement that an acceptable habitat conservation plan be included in incidental take permits). But he goes beyond the letter of the law to explain how negotiation affects environmental law in practice. For this, Owen relies heavily on snippets taken from 42 interviews with a range of environmental law practitioners. The interview methodology adds considerable credence to Owen’s description. Because the interviews are so important to his thesis, it is a bit frustrating, though understandable, that they are anonymous and labeled only with generic descriptions of the interviewees’ jobs. Nevertheless, the quotes from the interviews ring true, at least to this former government attorney.
The central role of negotiation, Owen argues, is absent from or misunderstood by two opposing critiques of the main body of federal environmental law. He labels these the “command and control” critique and the “slippage” critique.
Owen’s piece is at its zestful best when he uses the centrality of negotiation to take down major portions of the “command and control” critique–the familiar argument that environmental law is excessively rigid, directive and (therefore) inefficient. The pervasiveness of negotiation in implementing environmental law, Owen shows, provides opportunities for much of the flexibility and tailoring that are touted advantages of replacing existing federal regulatory frameworks with privately-operated, market-driven, or less-centralized ones.
Yet, Owen notes, the same view that environmental law mandates are fundamentally inflexible underlies the “slippage” critique, which sees rigidity and directiveness as features, not bugs. “Slippage” argues that when environmental regulators negotiate, they have only one direction to go: down from the strict requirements of the letter of the law. But this misses what Owen calls the “constitutive role” of negotiation in defining “what compliance is” rather than allowing deviation from compliance obligations. (Pp. 4-5.) Sometimes, Owen contends, negotiation produces better environmental protection than…whatever the alternative is.
Owen is careful not to over-claim. He does not contend that exponents of the command and control critique or the slippage critique entirely ignore the existence of negotiation in implementing environmental law. Rather, he convincingly argues that both critiques underestimate the role of, and undercount the benefits of, negotiation in environmental law.
Nor does Owen contend that these critiques are entirely wrong; he merely insists that they should engage with the implementation of environmental law as it exists rather than as it is modeled (or caricatured). By failing to do so, the command and control critique overstates the flaws of existing environmental law and the benefits of reform proposals the critics support. The slippage critique, for its part, understates the beneficial role of negotiation and consequently misses opportunities for improving environmental law implementation by enhancing regulators’ performance in negotiation.
Owen’s sympathy for the slippage critics’ goals, if not their prescriptions, shines through his suggestions for improvements negotiating implementation of environmental law. These suggestions aim primarily at making the government or “pro-environment” side of negotiations work better. Owen suggests that the role of negotiation in regulatory decision-making should be made more transparent; that the responsible government staff should be trained to be more effective negotiators; and that the negotiation process should be made more equitable for interested parties with fewer resources, such as community groups and smaller regulated entities. These ideas are not developed in any detail, but they raise many implementation questions.
For example, it is understandable, that Owen would argue that regulators should be clear with the public and the regulated community about “what they are willing to negotiate, what they are not willing to negotiate, [and] what general goals the agency seeks to achieve in its negotiations.” (Pp. 49-50.) Transparency is a generally accepted norm for government action. But an elementary principle of effective negotiating is that in a negotiation, information is power. To be transparent in a way that is more than uselessly generic but less than strategically destructive is no easy feat. Owen acknowledges that confidentiality may be important in negotiations, but he only begins to suggest how agencies can walk that tightrope.
Similarly, it is easy to suggest that resources be allocated to making government negotiators more effective and to bolster the equitable participation of disadvantaged communities and small businesses in the negotiation process. No doubt, as Owen suggests, formal training in negotiation would help some government officials achieve better outcomes (even while reducing frustration among others at the negotiating table). But this proposal hardly would alleviate the general lack of resources in environmental agencies that Owen also documents, or the policy- and politics- driven directions and limits imposed from above on many government negotiators. As to increasing equity in environmental law negotiations, resources surely are necessary, but it is hard to know if they will be sufficient. Technical Assistance Grants and Community Advisory Groups in Superfund are perhaps the best-known efforts to provide such resources. The literature is full of laudatory references to them, but includes little analysis of how well they have worked or how scalable they may be.
To say that we need to know more about Owen’s proposals for improvement, however, is not to criticize his article but to praise it for one of its great strengths: identifying future research needs. Owen’s compelling demonstration of the centrality of negotiation to environmental law invites study of how, and how well, those negotiations work. Consider CERCLA, the statute Owen holds up as exceptionally explicit about negotiation. The statute, the National Contingency Plan, and reams of guidance documents seem to say what is not negotiable, what is, and to what ends. But in nearly two decades working on Superfund cases, I saw things negotiated that were not negotiable and negotiable things that were not. Perhaps idiosyncratic, site-specific considerations drove those results. But perhaps there are patterns that could be uncovered through systematic assessment. The same is true of every piece of environmental law in Owen’s opening hypothetical.
As Owen himself stresses, a deeper dive into any aspect of the negotiable implementation of environmental law will be hard. He shows that negotiation’s role is often evanescent; it is the epigenetic factors that control the expression of statutory and regulatory DNA code. Sequencing DNA is much easier than figuring out how gene expression is controlled, but we really can’t understand biology without doing both. Owen reminds us that to understand environmental law, we have to understand how it is negotiated.
“This Article should not be novel,” Dave Owen wrote. (P. 49.) But it is, it is.
Aug 8, 2022 Eric BiberEnvironmental Law
While climate policy in the U.S. Congress appears stalled, debates about the best approach to advance decarbonization continue at the state level and around the world. A critical choice is between two different philosophies for carbon policy: One option is to pursue some form of pricing on carbon (e.g., cap-and-trade or a carbon tax) and allow the market to advance the best tools to reduce carbon emissions. The other option is to embrace a range of non-market strategies, such as regulation, subsidies, and support for research and development. In making this choice, policymakers must weigh important questions such as the economic cost of a particular policy, whether a policy can even be enacted in the first place, and the effectiveness of a policy in achieving the ultimate goal of reducing carbon emissions.
There have been many electrons spilled in these debates. However, a recent book by two leading scholars in the field—Danny Cullenward, with the climate policy think-tank Carbon Plan and Professor David Victor of UC San Diego—entitled Making Climate Policy Work, provides a thoughtful assessment of this critical tradeoff and comes down on the side of non-market alternatives.
Cullenward and Victor’s critique of carbon markets is both comprehensive and devastating. In their view, carbon markets offer prices for carbon that are too low to meaningfully drive the investment and innovation we need to develop and deploy the technologies required to decarbonize our economies. Additionally, carbon markets are unlikely to produce the high prices needed to drive investment. Setting high prices would require imposing heavy costs on politically powerful incumbent industries and interest groups—all for the benefit of nascent technologies and future generations that are politically weak. Carbon markets cannot provide deep policy integration across multiple economic sectors because each sector’s technological, economic, and political challenges can be so divergent that any market linkage undermines the overall market’s effectiveness. Carbon markets that were touted as ways of integrating climate policy across multiple countries around the world have instead generally failed to sustainably connect across international borders. Moreover, in integrating across jurisdictional borders, markets have all too often relied on approaches such as carbon offsets (in which an emitter pays another actor to reduce their emissions elsewhere) that can be susceptible to fraud and abuse.
Given these flaws, it’s no surprise that the authors characterize most existing carbon markets as “Potemkin” markets that appear to be functioning at reasonable costs–but in fact, most progress in decarbonization (whether it is in reducing carbon emissions or advancing innovation) is driven by regulatory instruments.
Cullenward and Victor’s analysis flows from a relatively simple political model that includes the major actors (such as interest groups) and institutions through which climate policy is established and implemented. To buttress their points, the authors draw on a series of examples, including the European Union’s Emissions Trading System.
The book provides a refreshing counterpoint to the regular invocations of markets as the solution for our climate policy dilemma. Cullenward and Victor have done a remarkable job of summarizing the existing policy literature that has increasingly undermined the case for the dominant role for markets, as well as their own contributions to that literature.
The authors do not call for completely abandoning markets, as they note, markets can be made to work as part of an overall portfolio of climate policy that also includes regulation. For instance, markets can focus on areas where smaller price signals function well. However, the authors make clear that markets will not play the leading role for much of our climate policy in the near future. Given the urgency of the task in front of us for decarbonization, knowing which policies are more effective in the here and now is tremendously important.
Dec 16, 2021 Steve GoldEnvironmental Law
When Bernard Goldstein speaks about the intersection of science and law in environmental policy, people listen. Or at least they should, in light of Dr. Goldstein’s distinguished record of scholarship, public service, and advocacy at this nexus. He is now in his sixth decade of writing about protecting public health from a vast array of toxic exposures. His latest contribution to that discussion is well worth reading and reflecting upon.
Readers should not be deterred by the article’s unwieldy title, nor by the prominent mention of a well-known person who skipped Joe Biden’s inauguration. Goldstein’s article is much more than a shooting-fish-in-a-barrel critique of an expired Administration. As Goldstein points out, a future similar assault on the scientific basis for environmental policy “is far from impossible,” and “not . . . from just one side of the political spectrum.” (P. 339.) So, rather than focusing on ideological differences and policy preferences, Goldstein attempts to explain the essential nature of such attacks and to suggest potential defenses.
Goldstein’s thesis is that the “replacement of EPA’s scientific consensus processes with those most appropriate to the law” was behind the harm that former Administrators Scott Pruitt and Andrew Wheeler did to EPA policymaking. This thought might rankle law professors, who certainly acknowledge that science provides the factual basis for environmental policy but nevertheless customarily emphasize that lawyers’ skills are essential to formulating, defending, and enforcing environmental regulations. But Goldstein does not question or denigrate the value of lawyers and legal analysis to policymaking. Rather, he argues that the first step in making environmental policy – selecting and evaluating the science to be used in the process – is served better by the norms and modes of science than by those of law.
Goldstein begins with a brief description of “pertinent distinguishing characteristics between law and science.” (P. 303.) Many judges and academics have attempted this over the last fifty or so years; Goldstein claims no novelty here. He emphasizes the contrast between advocacy and discovery as the prime motivators of lawyers and scientists, respectively. The point is well taken, though the article gives too little credit to the professional imperatives and cognitive biases that can push scientists toward advocacy, as well as to the need for credibility that can sometimes push lawyers toward truth-telling. But Goldstein qualifies his somewhat over-stark presentation, noting that “these are central tendencies rather than absolute rules.” (P. 304 n.12.) And his deep understanding of these tendencies, as a scientist who has worked on many legal and policy issues, provides insights far more useful than the platitudes that often appear in court opinions and even in some scholarly writing.
What Goldstein calls “advocacy” reflects, more than anything, the adversarial nature of the American judicial system, with the central “v.” of a case caption constructing a sharp pivot between opposing world views. Goldstein contends that on regulatory science issues, an adversarial structure – whether in a court of law or the court of public opinion – predictably generates a conceptual model of scientific opinion as bimodal, with views clustered around incompatible extremes. The typical scientific reality, he says, is different: if sufficient data exist, scientific opinion on any particular issue is likely to be normally distributed, strongly clustered around some central value that represents a consensus view.
Unsurprisingly, Goldstein the scientist believes that the goal of environmental policymaking should be to discover that scientific consensus and then to choose a regulatory standard reflecting the consensus as nearly as possible. He laments the last Administration’s displacement of this goal, achieved through a series of procedural changes, many glaringly obvious but some quite inconspicuous. The cumulative impact, Goldstein concludes, turned a process that used to be a search for scientific consensus into an attempt to justify a preferred outcome – that is, into advocacy. Goldstein’s disagreement with the outcome preferences is incidental to his concern about the procedural transformation itself.
Goldstein illustrates the depth of the transformation by describing numerous methods for seeking to determine a scientific consensus, none of which bears any resemblance to the decision-making processes of the departed Administration. He also discusses how the scientific research function fits into EPA’s organizational structure and why the appropriate procedures for assessing scientific evidence may vary with the regulatory context. Goldstein’s vast experience – which includes a stint heading EPA’s Office of Research and Development – enriches this discussion. For example, Goldstein provides a compelling scientific rationale, rather than a policy argument, for why data transparency rules appropriate for new drug approval by the FDA are not appropriate for environmental regulation by the EPA.
For legal scholars who would build on this work, Goldstein’s discussions of how scientists assemble and evaluate evidence, and how they choose their methods for doing so, are among the most intriguing passages in the article. Some, though not all, of the consensus-finding methods Goldstein explores have been adopted by governments or by non-governmental agencies. Within government, different structural choices have been made in the establishment of different agencies, each with its strengths and weaknesses. Determining which methods and structures will be most robust against future attacks is an urgent mission.
Twenty-five years ago Dan Tarlock argued “that environmental law and management should derive their primary political power and legitimacy from science, not ethics.” The past four years showed us both the power and limits of Tarlock’s claim. Ethics, we have seen, are insufficient to ensure good or even rational environmental policy: they are subject to too much disagreement, and they do not seem to constrain some policymakers at all. But science, we have seen, is also insufficient to ensure good or even rational environmental policy: it is too easily honored in word but not in deed. Bernard Goldstein’s exploration of how this happened sets up the challenge of figuring out how we can keep it from happening again.
Cite as: Steve Gold,
Taking Law’s “v.” Out of Environmental Policy Science (Again), JOTWELL
(December 16, 2021) (reviewing Bernard D. Goldstein,
What the Trump Administration Taught Us About the Vulnerabilities of EPA’s Science-Based Regulatory Processes: Changing the Consensus Processes of Science into the Confrontational Processes of Law, 31
Health Matrix 299 (2021)),
https://lex.jotwell.com/taking-laws-v-out-of-environmental-policy-science-again/.
Feb 9, 2021 Eric BiberEnvironmental Law
The federal government manages tens of millions of acres of land across the United States. That land includes some of the most iconic landscapes in the country – such as Yosemite, Yellowstone, and Everglades National Parks. It also is land that provides habitat for endangered species, ecosystems that support communities and wildlife, resources such as timber and minerals for economic development, and more. Forests on federal lands have been at the center of the wildfire crisis enveloping California and the Western United States. Given these overlapping demands and their importance, these lands are a fertile source for conflict, and much litigation and political rancor.
Yet there are other ways to resolve that conflict – engagement between various interests (“stakeholders”), and federal, state, local, and tribal governments about how to manage the lands and achieve these conflicting goals. This kind of stakeholder collaboration has received relatively little treatment in the legal literature – and Karen Bradshaw’s article is a vital contribution simply because of its efforts to cover that gap. Supported by the Administrative Conference of the United States, Professor Bradshaw undertook an impressive assessment of how a wide range of federal agencies – focusing on, but not limited to, the public lands – use collaboration among different stakeholders to help manage conflicts over public resources.
One reason stakeholder collaboration has received so little attention historically is that it does not lend itself easily to research, especially research based on statutes, regulations, and caselaw. While Professor Bradshaw identifies many statutes that mandate or authorize collaboration, they often each have their own unique processes. Many collaborations are not embodied in statutory or regulatory provisions. Understanding them is time-consuming, requiring reviewing copious agency files and attending many meetings. And understanding how they work – how they really work – requires getting the trust of participants to explain why they are part of the collaborations, what they hope to accomplish, and how they see the process working. To gain even a basic understanding of this process required all of Professor Bradshaw’s hard work on this article and the broader research project – and again, that alone warrants recognition.
The article is mostly descriptive – Professor Bradshaw attempts to create a clear and consistent definition of stakeholder collaboration, to articulate how it differs from other processes by which a federal government agency engages with other entities, and to tentatively assess its strengths and weaknesses. Again, given the wide range of possible forms and the difficulty of collecting data, these achievements alone are noteworthy.
Professor Bradshaw’s assessments of the strengths and weaknesses of the tool are also very helpful. She notes that collaborations can be beneficial in terms of helping agencies gather information they might not otherwise receive, and of building political support for difficult decisions that agencies might make. She also notes real issues around equity: Because participants are not paid by the federal government for their participation, only a limited number of people have the ability and inclination to spend hours during a weekday on a regular basis talking in a conference room. Thus, many participants are necessarily representatives of larger organizations, with their participation part of their employment responsibilities. As Bradshaw notes, this will generally mean that lower socio-economic status communities and diffuse interests will be underrepresented in these processes. And even where there are established groups that could afford to participate, many will not because of suspicions of how the process will unfold – emphasizing the importance of trust in making these collaborations function.
Another issue that Professor Bradshaw notes is the uneasy fit of these collaborations with existing law and regulations. Many are specifically structured to avoid the requirements of the Federal Advisory Committee Act (FACA). Professor Bradshaw quotes a government official stating that the collaboration requires bending agency regulations and policies, but that the official supports doing so.
Professor Bradshaw concludes with a thoughtful framework to help agencies assess when they might want to take advantage of stakeholder collaborations – drawing on her rich expertise from her research.
Public land management agencies are a key user of stakeholder collaboration, but as Professor Bradshaw notes, they are not the only ones who use them, and they are far from the only agencies faced with difficult, localized conflicts over government decisions. As the United States’ political system has polarized politically, these tools may be important to help manage that polarization. As Professor Bradshaw notes, they can provide important forums for stakeholders to listen to each other, and to help bridge deep disagreements. Her research can provide an important foundation for policymakers and academics to explore whether and how to draw more on the tool in a wide range of fields.
But Professor Bradshaw’s work also highlights a key limitation of the tool, and one that Congress might well want to consider if it continues to rely so heavily on it. The differential ability of stakeholders to participate in collaborations may interact in problematic ways with the willingness of agencies to bend laws and regulations to facilitate collaborations – the result may be agencies bending the law to benefit those who have more ability to participate. In some ways, this pattern may replicate age-old concerns about the capture of agencies by key interest groups. If collaborations simply replicate that outcome, then their promise will have been lost.
There is much to consider in Professor Bradshaw’s work – and much more to build from. She has already developed a companion piece on the topic, and I look forward to more writing from her on this important topic.
