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.
Environmental law strives to improve the relation of Homo sapiens to the ecosystems that support human life and all other life on earth. Ever since Darwin we have known that just as each species affects its environment, the environment pushes back, exerting selective pressure in favor of adaptive variations. Evolution is the long-run product of ecology. At its best, environmental law puts this understanding to work in the service of people and nature. And yet, Professor Nicholas Robinson observes, the study of how human law shapes the planet’s evolutionary future barely acknowledges the role of biological evolution in shaping human law.
In Evolved Norms, Robinson sets out to correct this by connecting the contemporary emergence of consensus environmental law to the evolutionary emergence of widespread behavior patterns favored by natural selection. Drawing on sources in both the biological and social sciences, Robinson argues that humans have evolved instinctive, “hard-wired” normative preferences for cooperation, biophilia, and resilience. These norms are reflected in design principles that have shaped existing environmental laws – and that should be relied on to structure the global environmental law we will need to confront future ecosystem disruptions both imminent and distant.
An impressive range of positive law at every level supports Robinson’s thesis that these principles undergird the architecture of much existing environmental law. Evolved Norms finds them in New York State statutes, in constitutions of nations around the world, and in international agreements, as well as in high court decisions of many countries. They emerge in diverse settings, not all of which have been categorized, traditionally, as environmental law. The cooperation principle generates agreements for mutual aid in times of disaster and for collective management of common resources. The biophilia principle leads to legal protection of natural habitats and of biodiversity. The resilience principle promotes laws facilitating insurance against disaster.
A moment’s consideration that human beings are organisms, as subject to natural selection as any other species, suffices for the conclusion that these evolved norms must have some biological basis. Yet Robinson’s claim that cooperation, biophilia, and resilience have become built-in principles of environmentally sensible behavior seems based more in dogged optimism than in observed reality. After all, if these supposedly instinctive norms truly dominated human behavior (and the legal systems humans build to channel their behavior), the world would not be facing the “existential challenges” Robinson rehearses at the outset of Evolved Norms.
Robinson acknowledges this tension. He allows that “[t]he transcendence of ‘ecological instincts’ will occur incrementally and haphazardly” because the evolved norms favoring stewardship are often in tension with “maladapted ‘economic instincts.’”
The unpleasant question, though, is whether humans’ “economic instincts” really are “maladapted” in a Darwinian sense. The genetic traits that made Homo sapiens capable of such profound ecosystem modification, after all, are the same traits that conferred on our species such astounding evolutionary fitness. These phenomena cannot be separated, from the harnessing of fire to the use of tools to the domestication of other species and on down through human history to today’s extraction of previously inaccessible fossil fuels. Yes, there are examples of human settlements or societies that have failed because of long-term consequences of behaviors that seemed adaptive in the short term. But globally, our species has been – to invoke one of Robinson’s preferred evolved norms – resilient enough to succeed in spite of the apparent havoc it has wrought on other parts of the ecosystem. “Economic instincts,” then, seem to be a manifestation of Darwinian “fitness.”
On this question Robinson would have done better to distinguish more sharply between genetic evolution and cultural evolution. Robinson quotes Aldo Leopold’s observation that human instincts foster ecological competition while human ethics foster cooperation, yet Leopold understood that ethics directly restrain fitness-maximizing behavior: “An ethic, ecologically, is a limitation on freedom of action in the struggle for existence,” he wrote. Biological evolution has provided humans with the capacity to develop and apply such ethics: to conclude, for example, that it is possible to attain, as Robinson puts it, “sufficiency” in resource consumption. Cultural evolution, a product of genetics and environment, leads us, at least at some times and in some ways, to put that capacity into practice. This is remarkable in the biotic world. After all, the lynx preserves the hare population not because of ethical concern or self-interested foresight, but because when hares become scarce the lynx population crashes before the hares are all gone.
Sociobiology too has something to say about this, of course. Since the field’s founding, one of its central occupations has been to explain how natural selection could favor the spread of genes that produce altruism, cooperation, and other behaviors that seem contrary to maximizing individual fitness. Often the answer lies in genetic relationship: natural selection can favor behaviors that benefit siblings, offspring or other relatives even at some personal cost. As Robinson notes, evolved cooperation on this basis can extend too narrowly, if collective action is needed in response to problems of intertribal, international, or global scope.
In other situations, when the pursuit of individual self-interest in nature’s economy produces dysfunctional results (as it sometimes does in human economies), natural selection provides a needed if painful corrective. When humans introduced the myxomavirus to Australia in an effort to control the rabbits humans had previously introduced to the continent, the most virulent strain quickly was replaced by less virulent strains. The virus is spread by mosquitos, and mosquitos will not bite a dead rabbit. The rapid reproductive success of virulent viruses was too quickly fatal to their host organism and thus proved counterproductive to the virulent strain’s long-term survival. Mutation and natural selection promptly evolved viruses that killed less efficiently but spread more effectively. The rabbits in turn evolved resistance to the virus.
The long-term success of myxoma virus in Australia depended on a balancing act – a type of stewardship of the virus’s host. Humanity’s long-term success depends on a balancing act that includes proper stewardship of our species’ host, Earth. Robinson’s insight that environmental law is based on, and should amplify, genetic traits that produce norms favoring such stewardship is an important contribution to environmental law scholarship. Robinson calls for “[s]tudies in law and sociobiology [to] begin in their own right.” It is a call environmental law scholars should heed.
Darwin understood that an organism’s inherited traits could be shaped by selection. After Watson and Crick elucidated the structure of DNA, evolutionary biology began a “grand synthesis” joining observational and theoretical population dynamics to genetics. Today, the power to decode whole genomes, coupled with increasing understanding of the environmental and epigenetic influences on gene expression, is rewriting large swaths of taxonomy and evolutionary theory once again.
It should be but a short, although difficult, leap to incorporate this biological learning into the study of law. Already neurobiology is undermining some premises of criminal law and the law of evidence, psychology is disrupting the claims of rational-choice legal theories, genomics is influencing the law of toxic torts. It makes perfect sense for evolutionary insight to inform the law of ecological stewardship. Nicholas Robinson’s Evolved Norms may not be to environmental law what The Origin of Species is to evolutionary biology. But Robinson deserves praise for having had the courage to step aboard the legal H.M.S. Beagle and begin the exploration.
Cite as: Steve Gold, A Legal Beagle’s Voyage
(July 1, 2014) (reviewing Nicholas A. Robinson, Evolved Norms: A Canon for the Anthropocene
, in Rule of Law for Nature
46-71 (Christina Voigt ed. 2014)), https://lex.jotwell.com/a-legal-beagles-voyage/
Most people, when they think of environmental pollution, think of large, industrial factories pumping out noxious fumes into the air, putrid liquids into the water, and barrels of toxic wastes into the soil. For instance, almost every newspaper article, blog post, or television story about climate change has as an image of the smokestack of a major power plant or factory.
Most people’s perceptions are wrong. It has long been the case that much of the degradation of our natural environment is the result of the accumulation of thousands, millions, even billions of individual actions by people across the United States and around the world. Climate change, for example, is the result of the decision of each of us to drive a car powered by fossil fuels, eat meat, fly in planes, heat our house with fossil fuels, and other similar, seemingly trivial actions. Moreover, these misconceptions are not limited to the general public or general journalists—environmental law scholars and policy makers have fallen into this trap as well. Even when scholars and policy makers have recognized the importance of small harms for environmental law and policy, there is often little information about how important they are, or what, exactly the implications are for our current legal and regulatory systems.
Two recent articles—Dave Owen’s piece, Critical Habitat and the Challenge of Regulating Small Harms, and David E. Adelman’s article, Environmental Federalism: When Numbers Matter More than Size—are welcome efforts to address the gaps in our understanding of how small harms matter to environmental law and why they matter. Moreover, they both are outstanding examples of a recent trend in environmental law to jump on the empirical legal studies bandwagon—both collect and use substantial amounts of data in their analyses.
Owen’s piece looks at a controversial, but underappreciated, provision of the Endangered Species Act (ESA): critical habitat. The agencies in charge of implementing the ESA (the U.S. Fish and Wildlife Service (FWS) and the National Marine Fisheries Service (NMFS)) are supposed to designate critical habitat for all species listed for protection under the Act. Historically, those agencies have resisted critical habitat designation, arguing that it adds minimal additional regulatory protection for listed species, but with substantial administrative and political costs. Owen first establishes that, properly understood, critical habitat should provide substantial additional regulatory protection for listed species on top of the other ESA provisions—and that those protections are most important for the accumulation of small harms to the habitat for listed species. Small harms to habitat include, for example, the paving over of lands within a watershed for residential and commercial development; each individual bit of development worsens the water quality of the streams within the watershed by a small, incremental amount. These small harms are not individually enough to trigger other provisions of the Act, but cumulatively might matter a lot for listed species. Another key example of this kind of harm is climate change.
Owen then undertakes some heroic empirical research. He compiled over 4,000 individual regulatory documents from FWS and NMFS to explore whether, in practice, critical habitat designation affects regulatory decision-making and whether the agencies are doing anything else about the accumulation of small harms to habitat for listed species. He finds that critical habitat designation appears to be making little difference for decision-making—even where the evidence is clear that in a particular situation a proposed development project will have small, but meaningful, impacts on the habitat of a listed species. He also—more surprisingly—finds evidence that the agencies are trying to use a range of other creative tools to address the problem of small habitat harms. Finally, he notes that small habitat harms are incredibly important, with the vast majority of the regulatory decisions involving individually small, potentially cumulatively important, harms to habitat for listed species.
Complementing Owen’s narrow but deep focus on a particular statutory provision, Adelman’s project is an effort to take a large-scale view at the problem of air pollution. Adelman marshals a range of data provided by the Environmental Protection Agency (EPA) and other sources to demonstrate that large, industrial sources contribute only a small fraction of the overall problem of air pollution in the United States, particularly in the large urban areas where air pollution problems are most severe. Adelman then shows how the current legal structure of the federal Clean Air Act purports to give states substantial leeway to reduce air pollution in a “cooperative federalism” framework, but in fact gives states little power overall. Adelman notes that much of the pollution in urban areas comes either from sources primarily under direct federal regulation (motor vehicles and electric power plants) or from the accumulation of many small sources that are extremely difficult to manage or regulate (e.g., wood-burning stoves, backyard barbeque grills, dry cleaners, and the choices by millions of individuals about whether and how to undertake their daily commutes).
On one level, Owen and Adelman reach very different conclusions from their surveys. Owen believes that the current ESA implementation process, while it has substantial problems and needs some reforms, is the correct general framework. Adelman, by contrast, calls for substantial revisions in the Clean Air Act.
But, on another level, their overall messages are very consistent. Both argue that to address the increasing importance of small, individual actions for environmental law, what is needed is a wide mix of regulatory tools (e.g., command-and-control or market-based mechanisms)—from all different scales of government (local, state, federal). For instance, Owen notes that the case-by-case implementation of the ESA by various FWS field offices allows for careful tailoring of regulatory choices to on-the-ground political and economic reality. Adelman argues that rigid divisions between federal, state, and local jurisdiction in environmental law will interfere with the messy process of changing the patterns of individual behavior that are so fundamental to environmental problems today.
I’m not sure I agree with all of the normative recommendations in both of these pieces. But in the end, the most important contribution of both is highlighting how important the accumulation of small harms is for the future of environmental law, and providing some insights about how we might go about addressing this challenge.
Cite as: Eric Biber, Small Things Matter in Environmental Law
, JOTWELL (March 5, 2014) (reviewing Dave Owen, Critical Habitat and the Challenge of Regulating Small Harms
, 64 Fla. L. Rev.
141 (2012) and David E. Adelman, Environmental Federalism: When Numbers Matter More than Size
, U. Texas Working Paper Series (2013), available at SSRN),https://lex.jotwell.com/small-things-matter-in-environmental-law/