Tag Archives: Environmental Law
Kellen Zale, When Everything is Small: The Regulatory Challenge of Scale in the Sharing Economy
, San Diego L. Rev.
(forthcoming 2016), available at SSRN
There has been a lot of literature about the so-called “sharing” economy lately, in particular focusing on the conflicts over whether and how that economy will fit within the existing regulatory systems at the local, state, and federal levels. And at first blush, the question of whether Uber drivers should be regulated as taxis or not doesn’t seem to have much of a connection with the standard concerns of environmental law—particularly the regulation of large industrial sources of pollution.
But as Kellen Zale’s excellent article points out, the problems that the sharing economy poses to existing regulatory systems are ones that we have seen before, and ones that we will see again. Zale notes that the sharing economy poses regulatory challenges precisely because of its scale of a large number of small activities—thousands and thousands of individual drivers working for Uber or Lyft, or of homeowners renting through Air BnB. Large numbers of individually small activities are incredibly difficult to regulate effectively, and that regulation can impose substantial social costs. As a result, the law has traditionally exempted many small scale actions from regulation. On the other hand, the accumulation of all of these individually small actions can impose significant harms on neighbors, communities, and the environment. For instance, the congestion and noise impacts of large numbers of Air BnB rentals have been a source of major complaint in some tourist communities. Zale also identifies how the sharing economy is but one example of this phenomenon—a growth of the impacts from individually small activities to the point at which regulation is required—and discusses how it can be discerned in a range of areas, including landlord-tenant law.
I particularly enjoyed Zale’s efforts to identify solutions to the challenges posed by the sharing economy—options including co-regulation (in which the private industry is part of enforcement efforts in cooperation with the government), the use of private standards, and simple fee structures. While Zale certainly does not exhaust the range of possible options, her efforts are an important starting point for developing policy responses.
While Zale’s work focuses on the sharing economy, I think the issues she identifies, the questions she asks, and the policy ideas she develops will be important for environmental law far beyond the sharing economy. The future of the next century will be increasingly a story of rising human pressures on our planet as a result of the accumulation of billions of individual decisions about how to use resources and what lifestyles to live. In major urban areas in the United States, much current air pollution is the result of activities as small as filling gasoline tanks in cars, painting houses, dry cleaning clothes, and burning wood in fireplaces. Some of these challenges can be covered by upstream regulation (e.g., reformulating paints to reduce emissions, more efficient gas tanks). Others will require more direct intervention in individual activities (e.g., enforcing requirements on separating recycling materials from trash, restricting the use of fireplaces). Ensuring that these regulations will be politically palatable and fair in the burdens they impose on individuals will require the development of many creative solutions along the lines Zale develops. I am glad she has helped start that conversation.
As a wet-behind-the-ears lawyer in the U.S. Justice Department’s Environmental Enforcement Section, I tried two cases to judgment in my first three years of practice. During fifteen years at the DOJ thereafter, almost every case I touched – including some during a brief stint as an appellate lawyer – settled. So this succinctly-titled article immediately caught my eye.
In Environmental Settlements and Administrative Law, Courtney McVean and Justin Pidot focus not on enforcement litigation but on how the federal government settles cases in which agencies are sued for allegedly violating environmental statutes. McVean (a 2014 graduate of the University of Denver Sturm College of Law) and Pidot (a former DOJ attorney who was then an Assistant Professor at Denver) consider the persistent criticism that the Executive Branch’s settlement practices make policy in ways that violate administrative law norms. Their careful analysis concludes that most environmental settlements are consistent with the procedural constraints of administrative law and that existing judicial review mechanisms are adequate to correct the occasional settlements that overreach.
To make sense of a large number of settlements of claims brought under diverse federal statutes, McVean and Pidot divide settlements into three categories based on the commitments agencies make to resolve cases: resource allocations settlements, procedural settlements, and substantive settlements. As the authors acknowledge, this typology is not entirely new; it tweaks a classification scheme proposed by Jeffrey Gaba more than thirty years ago. The tweak, though small, is important: McVean and Pidot rename as “resource allocation settlements” the class that Gaba called “scheduling agreements.” “Resource allocation” is a more comprehensive label; as McVean and Pidot show, agreeing to a specific timetable is not the only way that settling agencies commit to devote resources to the particular administrative action for which a plaintiff sued. More important, “resource allocation” focuses on the effect that a settlement of this type has on the agency that agrees to it, which is where the emphasis should be in assessing whether such settlements run afoul of legal constraints on agency behavior.
Using a handful of recently or currently controversial settlements, McVean and Pidot systematically evaluate whether each of several common criticisms validly applies to each category of settlement. No, resource allocation settlements do not offend judicially-enforced administrative law norms, because agency choices about resource allocation (absent Congressional earmarking) are quintessentially discretionary and typically insulated from judicial review. Therefore, an agency’s binding agreement to make a final decision on some issue by a specified date is no different from a choice the agency could have made on its own, without any public involvement or judicial second-guessing, even in the absence of a suit seeking to compel a decision. No, process settlements do not violate public participation requirements because the Administrative Procedure Act exempts procedural rules from notice-and-comment, and courts give agencies wide latitude in making procedural choices so long as the statutory minima are satisfied. Finally, no, even substantive settlements do not improperly skirt public participation and other administrative law obligations, provided that the settlement itself is subject to notice-and-comment procedures or the action that the agency agrees to take is itself subject to judicial review that can include review of the propriety of the agency’s commitment to the action in the settlement.
McVean and Pidot acknowledge that substantive settlements, in which agencies commit not only to act but to act in a particular way, pose a risk of circumventing administrative law. They express special concern about deregulatory decisions embodied in settlements, although their example of an improper substantive settlement involves an agency’s agreement to limit environmentally harmful activities by persons who were not party to the litigation being settled. They use this example to support their contention that courts can police substantive settlements using existing law, either on collateral attack or by direct review of the settlements themselves.
Direct review of substantive settlements, McVean and Pidot assert, is not functionally different from arbitrary-and-capricious review of regulatory decisions made outside the settlement context. Perhaps my reaction to this assertion is colored by my experience entering environmental enforcement consent decrees with their “double layer of swaddling,” but to my mind this claim, which the authors support, but thinly, is one of the article’s few points that is open to question. It would be good to see future work rigorously comparing judicial review of substantive regulatory settlements to judicial review outside the settlement context, notwithstanding the difficulty of making that comparison in light of courts’ very malleable application of the arbitrary-and-capricious standard.
The legal analysis in Environmental Settlements and Administrative Law also suggests other opportunities for future scholarship aimed more directly at agency incentives and behavior. In today’s political milieu, the criticism of environmental settlements comes from the right, alleging that agencies implicitly invite lawsuits from their environmentalist friends and cut sweetheart deals to achieve their environmentalist ends. But the lawsuits allege that agencies have not done enough to protect the environment. In deadline suits, the negotiated timetable inevitably requires agency action well after the deadline imposed by statute. Why would eager-beaver regulators prefer a strategy of missed deadlines, lawsuits, and settlements to a strategy of meeting regulatory deadlines in the first place? Because McVean and Pidot show that “to evade the requirements of administrative law” is not the answer, the underlying premise of the agencies’ critics seems doubtful. Study of agencies’ actual dynamic response to being sued could be very enlightening.
Overall, McVean and Pidot persuasively demolish the argument that environmental settlements subvert administrative law’s imperatives. Their analysis, as they conclude, exposes criticism of environmental settlements “for what it is: a war of words relying on emotionally charged rhetoric to score political points.” (P. 239.) To put that conclusion slightly differently, Environmental Settlements and Administrative Law shows that the current complaints about the process of settling environmental lawsuits are stalking horses for disagreements with the substance of the current administration’s environmental policies.
Quite fairly, McVean and Pidot acknowledge that the source of criticism of environmental settlements has varied with the political winds. The same arguments now made by Republican legislators and business-oriented interest groups were made, during the George W. Bush Administration, by Democratic legislators and environmentally oriented interest groups. Environmental Settlements and Administrative Law thus also demonstrates that environmental law, which since the 1970’s has been thoroughly entwined with administrative law, is again illustrating an administrative law truism: when thinking about imposing procedural burdens on agencies, be careful what you wish for, because the process you love today may be the process you hate after the next presidential election. McVean and Pidot have contributed a powerful defense of the need to maintain environmental agencies’ flexibility to settle cases brought against them.
The future is the Anthropocene Epoch – or at least some geologists argue that human activities now dominate global systems like the oceans and climate in qualitatively different way in the past, justifying the identification of a new geological era. Certainly human impacts on climate change provide a strong example to support this claim. Legal scholars are only just now coming to terms with what (if any) significant implications the Anthropocene might have for our legal system.
One thing I particularly like about Angela Harris’ piece (Vulnerability and Power in the Age of the Anthropocene) is that it takes on the big question of whether and how the Anthropocene matters. Harris argues that the Anthropocene matters because in an era in which humans are changing global systems, there will be ongoing and major impacts on all humans, but especially the most vulnerable – in other words, changes in our global environment will have a particular salience for populations that have less political or economic power. After all, it is no accident that among the countries most vulnerable to the sea-level rise that is a product of climate change is Bangladesh, a poor and politically weak country where tens of millions of people may be displaced. As Harris notes, understanding how climate change affects those without political or economic political power is a key part of beginning a conversation about the relationship between the Anthropocene and critical legal theory.
A related major point that Harris makes is that human dominance of the global environment in the Anthropocene makes clear the interconnectedness of social and environmental decisionmaking. How we manage the global environment necessarily requires us to consider how we structure our societies and economies. Reciprocally, we cannot understand how our societies and economies function without understanding the role that the global environment plays in sustaining or impacting them.
Harris argues that accordingly we should identify two key principles of governance: One, that environmental protection and human rights are equal, joint, and indivisible components of just governance in the Anthropocene (the indivisibility principle); and two, that in making decisions about how to effectuate environmental protection and human rights, we should obey an anti-subordination principle that rejects oppression of any groups of humans, with a particular focus on historically oppressed populations such as racial, religious, and ethnic minorities.
I am excited about Harris’s connection of the future of environmental protection – as encapsulated in the concept of the Anthropocene – with issues of justice writ large. One problem for environmental protection in the twentieth century was the all-too-long delay between the initial development of the modern environmental movement, and engagement of historically oppressed groups that have born disproportionate environmental burdens. I hope that Harris’s piece is the beginning of ensuring that the difficult and important conversations we have about the environment in the next 100 years are more inclusive and more comprehensive.
As with any excellent piece, it raises questions about the next steps – questions that will be hard to answer. Here, I want to focus on one important follow-on question: Harris (rightly) places a strong emphasis on maintaining a critical, watchful eye to ensure that anti-subordination principles are not evaded in practice. Similar problems arise in the context of environmental decisionmaking – where human nature to focus on the short-term, the immediate, and the proximate leads us to downplay the long-term and large-scale implications of decisions, the implications that lead to environmental degradation. How can we ensure that environmental protection is not (effectively) made secondary to short-term economic pressures, particularly when economic growth can be framed as essential to meet the urgent need to raise billions out of poverty?
The importance of the question is highlighted by disputes in two countries that Harris identifies as leaders in trying to respond to the challenges of the Anthropocene: Ecuador and Bolivia. As Harris notes, both countries have enshrined in their laws and constitutions protection of the environment, broadly defined, and human rights, including indigenous populations. Yet both countries have also wrestled with contentious disputes about government-sponsored projects to extract fossil fuels from biologically significant forestlands, over the objections of many of the indigenous inhabitants of those lands. The legal frameworks these countries have developed are perhaps not (yet) adequate to satisfactorily resolve these disputes.
Harris’s indivisibility principle attempts to reduce the risk that environmental protection will come second to economic development. But I wonder if we can do more. Much of modern American environmental law can be understood as an effort to reduce the risks of backsliding, of restraining ourselves from actions that would help us in the short-term but harm us in the long-term. Tools such as citizen suits, prohibitions on cost-benefit analysis, mandatory decisionmaking timeframes, and limitations on political influence for decisions all can help advance this goal.
How might such a tool to restrict backsliding on both environmental and human rights grounds work? One example might be a cap on the cumulative health risks from environmental exposures that any one individual should have to bear. It is the cumulative impacts of individual decisions that sometimes weigh so heavily on poor and minority communities – and a cap would ensure that no one individual or community bears a disproportionate burden from society’s decisions. While implementation of such a cap raises a range of scientific and legal challenges, it is a project worth exploring. The State of California has already begun cutting-edge work in this vein.
This one brief example makes clear the importance of the conversation that Harris begins with her article. I look forward to hearing more from her on the topic.
In a four-decade scholarly career, my former colleague Howard Latin has never shied away from speaking truth to power. His writings have taken on all three branches of government, wealthy private interests like the auto industry, and entrenched academic orthodoxies (notably economic theories of environmental and tort law). More recently, he published an important book arguing that even the most ambitious conventional proposals to respond to anthropogenic climate disruption will not do enough, quickly enough, to mitigate the long-term harm that will result from high concentrations of greenhouse gases in earth’s atmosphere.
In Climate Change Regulation and EPA Disincentives, Latin casts a disappointed eye on the Environmental Protection Agency’s efforts to address greenhouse gas emissions using its authority under the Clean Air Act in the aftermath of Massachusetts v. EPA. Given the ineffable magnitude of the danger, the Supreme Court’s acquiescence, and a comprehending President, Latin asks: Why so timid, EPA? Drawing on many themes from his earlier work, he answers by speaking truth about power: the fossil-fuel-burning generation of electric power, the pressures that exert psychological and bureaucratic power within agencies, and the limited exercise of regulatory power seemingly conferred by statute.
Latin focuses on EPA’s failure to require swift, significant reductions in greenhouse gas emissions from existing and new fossil-fuel-fired power plants and their associated fuel cycles. With respect to existing plants, Latin argues that EPA’s proposed Clean Power Plan requires emissions reductions that are too little too far in the future. With respect to new plants, Latin ridicules as meaningless EPA’s proposed New Source Performance Standard, quoting from the agency’s own analysis of the proposed rule’s effects: it “will result in negligible CO2 emission changes, energy impacts, benefits or costs for new units constructed by 2020” because the rule would require nothing beyond what EPA believes the market would have produced absent regulation.
To explain EPA’s cautious approach, Latin invokes the eight “laws” of administrative behavior that he articulated twenty-five years ago in criticizing the 1990 Clean Air Act amendments. Thus the patterns of agency behavior that Latin observes at work in EPA’s attempts at CO2 emissions regulation are neither new in practice nor newly understood in theory. Latin shows persuasively that these patterns are active by marshaling facts that will also mostly be familiar to those who follow climate policy issues.
It is no surprise, for example, to learn that politics usually trumps technocracy, and therefore EPA responds to political opposition to meaningful CO2 emissions reductions–which comes from officeholders of both political parties for reasons ranging from anti-regulatory ideology to parochial concern about short-term local employment effects to the need for (or fear of) massive campaign spending by those whose wealth derives from fossil fuels. Nor, unfortunately, is it news that Congressionally-imposed resource limitations, continuous criticism from all sides, and manipulation by regulated industries can debilitate the will of even committed career agency staff and well-intentioned agency leadership. Or that EPA is prone to avoiding regulatory steps that would cause severe social and economic dislocation, even if (as Latin contends is true for greenhouse gas emission reductions) regulation would have net social benefits. History amply demonstrates the truth of this group of Latin’s laws.
Two more of Latin’s laws describe other factors constraining EPA’s behavior that, although they have been observed before, are discussed less often in climate policy debates. Latin explains how EPA’s science-driven agenda can discourage necessary, but aggressive and risky, policy-making. Disciplinary norms push most scientists toward basic research and away from policy prescriptions derived from incomplete data, Latin observes, yet at the same time bureaucratic norms channel agency research toward reinforcing already well-supported conclusions rather than assessing phenomena that are only vaguely understood. As a result, Latin argues, reliability norms inhibit strong policy prescriptions while weaker, easier policies are not closely examined. For example, EPA has yet to analyze the effects on greenhouse gas emissions, over the entire fuel cycle, of the market-driven shift from coal-burning to natural-gas-burning electricity generation.
Latin applies his eighth law–that administrators of multiple-purpose statutes tend to emphasize only one or two statutory goals–less to EPA than to the myriad other federal agencies whose actions contribute to the overall effect of government policy on climate disruption. Despite Presidential directives to develop cooperative climate change policies and practices, Latin notes, these agencies continue to pursue specialized agendas that make attacking climate change harder rather than easier. He cites, among other examples, support within the State Department for the Keystone XL pipeline.
The contribution of Climate Change Regulation and EPA Disincentives is not so much in telling us things we did not know but in showing us how they combine to stymie bold regulatory action. The commons problem that has so frustrated global action on greenhouse gas emissions, for instance, underlies much of the political opposition Latin describes but also much of the reluctance to impose social and economic costs in the name of emission reduction: the benefits of individual action at the regional or even national level are perceived not to justify its costs absent effective collective action on a global scale. Internal scientific and bureaucratic norms insidiously enhance the effectiveness of external criticism.
Climate Change Regulation and EPA Disincentives also makes a more subtle contribution to the environmental law professoriate. We all know that the 1970, 1977 and even 1990 Clean Air Act Amendments were not really designed to address emissions of pollutants like greenhouse gases, even though the statute’s language is broad enough to encompass those pollutants. We teach our students–who, after all, will be tasked with making mitigation and adaptation policy choices more difficult than even those we currently face–that what is really needed is legislation designed to attack the climate disruption problem head-on and effectively. Yet we despair of any prospect that such legislation will be enacted in the foreseeable future: certainly not until 2017 or later, and then only if the stars align. By showing us how and why EPA has failed to embrace the power it already has, Latin inspires us to envision a world in which effective national action does not depend on endlessly, fruitlessly waiting for Congress. By explaining agency timidity, he implicitly reminds us–and EPA–of the possibility of daring.
Ordinarily I would have been reluctant to write a Jot praising the work of a colleague at my own law school. I feel justified, however, because Howard Latin has just retired from our faculty. In what may be his last law review article, he again provides signal service to environmental law scholars and environmental policy makers. So I happily thank him for the mentorship he provided to me and for the scholarship he provided to the world.
Cary Coglianese and Jennifer Nash have added yet another thoughtful contribution to the debates over whether voluntary compliance programs can significantly improve environmental law and policy. This thorough and careful empirical review of the most important voluntary environmental compliance programs is essential reading for anyone interested in environmental law and policy.
In the 1990’s and early 2000’s, a strong strain in environmental legal scholarship argued that environmental regulation was too punitive, inflexible, and rigid. According that scholarship, regulation punished regulated parties who sought, in good faith, to comply with the law; it imposed regulatory standards without regard to the benefits of the regulation as applied to a particular regulatory party, or of the feasibility or appropriateness of compliance for a particular regulatory party; it was unable to keep up with complex and rapid economic and technological change. Many of these critiques were initially raised and made prominent by Bob Kagan and Eugene Bardach, beginning with their 1982 book Going by the Book: The Problem of Regulatory Unreasonableness.
In response to these critiques, academics, politicians, and policymakers sought to make environmental law in particular, and administrative law in general, more flexible, more responsive to economic and technological change, and more positive in the incentives it gave to regulated parties. “New governance” administrative scholars developed new tools for regulation and standard setting in environmental law. Eric Orts proposed the use of “reflexive environmental law,” in which regulation sought to make regulated parties more proactive about how they could reduce environmental damage, through (for instance) reporting requirements about firm environmental performance. Similarly, Charles Sabel, Archon Fung, and Brad Karkkainen called for revamping environmental regulation to create a “rolling-rule” system in which localities would set standards at the levels they thought appropriate, and central authorities would ensure regular and frequent monitoring and distribution of information about the success of those regulatory standards. Their basic idea was that the monitoring and production of information would provide impetus for constant, “rolling” improvements in environmental performance by localities, without the need to resort to rigid “command-and-control” regulation. (For an excellent summary of the literature and these themes, see this piece by Orly Lobel.)
An important element of many of these reforms was to encourage greater use of voluntary measures to achieve environmental goals. If some regulated parties will seek to comply with, or exceed, existing environmental standards for reasons independent of the possibility of regulatory sanctions, then treating those parties as if they were violators might be counterproductive, as Kagan and Bardach noted. Reformers argued that voluntary measures allow for flexible and immediate responses to environmental problems, without concerns about industry obstruction or legislative inertia. They can be tailored to local conditions.
State and federal environmental agencies in the 1990’s began experimenting with a wide range of voluntary measures to try and provide positive rewards to those regulated parties who met and exceeded regulatory standards. EPA developed programs such as Project XL and 33/50. At the time these programs were quite controversial, and EPA has since discontinued a number of them. However, EPA still has a substantial number of voluntary programs in operation, and many states have continued their programs as well.
Cary Coglianese and Jennfier Nash have produced what is perhaps the definitive assessment of how successful these voluntary programs have been. Coglianese and Nash’s piece is a close analysis of EPA “flagship” voluntary program, the National Environmental Performance Track. The Performance Track program operated for approximately eight years, and it included hundreds of companies. Those companies promised to meet and exceed EPA regulatory standards in return for publicity, recognition, and some modest relaxation of regulatory burdens (such as reduced inspection requirements). It was designed to ensure active and ongoing improvements by companies in environmental performance, and to facilitate cooperative and collaborative relationships between EPA and regulated parties. Coglianese and Nash collected an impressive amount of empirical research in conducting their assessment: analysis of EPA data on individual firm characteristics and compliance; interviews and close analysis of a small sample of firms; a survey of a wide range of facilities both within and outside of Performance Track.
Coglianese and Nash’s conclusion based on their study – and on a long history of research that Coglianese, Nash and others have led on similar voluntary programs – is that voluntary programs don’t produce much environmental benefit. EPA never was able to demonstrate that regulated facilities that participated in the Performance Track had better environmental outcomes than facilities that did not participate; in fact, the only major difference is that participating facilities were more likely to value outreach and cooperation with the public and the government than those that did not participate. Moreover, participation in this program, even with hundreds of participants, was a tiny fraction of the total number of entities regulated by the EPA.
As Coglianese and Nash note, one of the problems with voluntary programs is that to get substantial participation in them, agencies must provide substantial regulatory relief (or other tangible benefits). The Performance Track’s rewards simply were not enough to encourage widespread participation. But in order to justify large benefits, the EPA has to ensure that the regulated parties are truly making substantial, additional compliance efforts above and beyond the minimum standards – something that was not cost-effective or feasible for many of the participating parties. Coglianese and Nash frame this is a matter of political reality – if EPA did not impose strong demands in return for substantial regulatory benefits, it would face political pressure from Congress or environmental groups. I would add that if EPA did give those benefits without seeking major contributions from the regulated parties, which would be tantamount to rolling back regulatory standards.
The results of Coglianese and Nash’s study are important for environmental law in many ways. First, they provide another example of the important role that empirical research can play in the field.
Second, their work provides an important contribution to the debate over regulatory flexibility and “new governance” in environmental law. It is certainly true that voluntary government-run measures were only one component of various “new governance” proposals. “New governance” scholars noted an important role for government coercion in producing the information that would result in improved environmental performance, and they also noted the possibility that non-governmental pressures and organizations might create strong incentives for increased environmental performance. But voluntary government-run measures were still an important component of many “new governance” proposals. Coglianese and Nash’s work should prompt us to reevaluate the role of voluntary government-run measures in “new governance” reform proposals.
Third, their work indicates that voluntary measures are not a panacea. Indeed, to the extent that they depend on regulatory relief to inspire performance, they may not have a lot of potential. Instead, non-legal factors will be much more important drivers of voluntary measures – as Kagan himself concluded in a co-authored study of environmental behavior by paper mills.