Category: Environmental Law

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The Yale Law Journal Online: Preventing Policy Default: Fallbacks and Fail-safes in the Modern Administrative State

The Yale Law Journal Online has published the third in a series of responses to Benjamin Ewing and Douglas A. Kysar’s recent article, Prods and Pleas: Limited Government in an Era of Unlimited Harm, which appeared in the November issue of The Yale Law Journal. In their article, Ewing and Kysar argue that the traditional constitutional model of “checks and balances” could be improved by incorporating “prods and pleas,” through which different government branches incentivize action from other branches. To set forth their argument, Ewing and Kysar explore federal climate nuisance litigation as an example and analyze how prods and pleas function in that arena.

In Preventing Policy Default: Fallbacks and Fail-safes in the Modern Administrative State, Daniel A. Farber argues that Ewing and Kysar place too much focus on common law. He writes that, with respect to climate change, “[t]he common law is simply not where the action is in today’s world.” Instead, he suggests that public law litigation and state legislative activity are more useful mechanisms for “fill[ing] the gaps created by congressional or presidential policy defaults.”

Preferred Citation: Daniel A. Farber, Preventing Policy Default: Fallbacks and Fail-safes in the Modern Administrative State, 121 YALE L.J. ONLINE 499 (2012), http://yalelawjournal.org/2012/02/21/farber.html.

Previous responses in this series:

Richard A. Epstein, Beware of Prods and Pleas: A Defense of the Conventional Views on Tort and Administrative Law in the Context of Global Warming, 121 YALE L.J. ONLINE 317 (2011), http://yalelawjournal.org/2011/12/06/epstein.html.

Jonathan Zasloff, Courts in the Age of Dysfunction, 121 YALE L.J. ONLINE 479 (2012), http://yalelawjournal.org/2012/02/14/zasloff/html.

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A Commons Comedy Fueled by Data

Imagine you are a fisherman and haul in a catch with fish that are protected and that would get you in trouble. Quick! Hide it! Deny it! etc., right? Nope. The Times reports that a partnership among fishermen and the Nature Conservancy meant that this fisherman reported the catch so the overall area could thrive.

The story starts in the usual eco-group takes on industry way with the NC buying “out area fishing boats and licenses in a fairly extreme deal — forged with the local fishing industry — to protect millions of acres of fish habitat.” But the NC put the fleet back to work using a commons model.

Bringing information technology and better data collection to such an old-world industry is part of the plan. So is working with the fishermen it licenses to control overfishing by expanding closed areas and converting trawlers — boats that drag weighted nets across the ocean floor — to engage in more gentle and less ecologically damaging techniques like using traps, hooks and line, and seine netting.

The conservancy’s model is designed to take advantage of radical new changes in government regulation that allow fishermen in the region both more control and more responsibility for their operating choices. The new rules have led to better conservation practices across all fleets, government monitors say.

The challenges here were that “There wasn’t scientific information at that level that could match the fisherman knowledge.” Fisherman did not trust the NC, but when the NC bought some of the boats or permits from those who wanted to leave the industry, “The fishermen soon divulged which nurseries and rock formations needed to be protected and which areas where mature fish congregated should be left open. What resulted was a proposal that included large areas of closings — nearly 4 million acres — that most fishermen thought was fair. It was adopted easily by the fishery council in 2006.”

Now let’s look at the data magic. The NC uses a system called eCatch. According to the Times, fisherman were not sure about this reporting requirement “But fishermen have come to believe that the data will show patterns — for example, high catch rates of certain species after full moons along the edge of the shallow water shelf in July — that will help them all predict the danger zones. Independent fisherman have joined the risk pool and eCatch system because they see benefits. By handing out free iPads, the conservancy made the posting of real-time results almost effortless.”

And, it seems other areas are emulating this approach. “In Massachusetts, scallop fishermen, with the help of the University of Massachusetts, have developed a similar reporting program to avoid pulling in endangered yellowtail flounder.” Could lobster fishermen be far off from this method? Afterall at least with other seafood efforts the new method “yields profits and hardly any bycatch” (the term for catching sensitive species which can lead to market problems). And in what looks like another aspect of this commons comedy, in one case a family that sold its permit and leases it back at fair market value as long as the method “continues to use Scottish seining, which is far gentler to the ocean bottom than trawling is.”

Rather than the fight between nature groups and industry the fisherman offered a different picture: “The Nature Conservancy had identified that the small family boats were sustainable, and they wanted to help,” Mr. Fitz said. “We recognized that we needed help negotiating this increasingly confusing path into the future.”

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Recommended Reading: The People’s Agents and the Battle to Protect the American Public

My colleague Rena Steinzor and Sidney Shapiro recently published The People’s Agents and the Battle to Protect the American Public: Special Interests, Government, and Threats to Health, Safety, and the Environment (University of Chicago Press).  The book analyzes the performance of five agencies they call the “protector agencies:”  the Consumer Product Safety Commission, Environmental Protection Agency, Food and Drug Administration, National Highway Traffic Safety Administration, and Occupational Safety and Health Administration.  Its findings are grim.  Using case studies, the book shows how the protector agencies are malfunctioning and explores the sources of the trouble.  It attributes the disappointing performance of the agencies to external pressures, including the President’s requirement that agencies engage in cost-benefit analysis before issuing a major rule and other forms of Presidential interference as well as the weakening of the civil service and inadequate funding and staffing of agencies.  The book offers thoughtful solutions that are carefully tailored to the problems that the authors identify.

Richard Pierce reviewed the book in the George Washington Law Review, and he writes that this “excellent book is compulsory reading for anyone who is interested in the performance of regulatory agencies.”  For Pierce, the “book is so well researched and well written that I learned a lot even from the chapters with which I disagree.”  He explains that, for instance, while he continues to believe in agency cost-benefit analysis for major rules, the authors “do such a good job of criticizing the cost-benefit analysis requirement and of documenting its bad effects that I am forced at least to acknowledge the need for major changes in the ways in which agencies and the White House implement” it.  The authors also “provide an accurate and persuasive account of the many adverse effects of the hard look doctrine,” that is, the judicial requirement that an agency must take a hard look at a problem and its potential solutions before issuing a rule, and prescribe a new approach that would be less intrusive and more determinate.  Pierce ends the review with this:

Justice Scalia once said that ‘Administrative law is not for sissies –so you should lean back, clutch the sides of your chairs, and steel yourselves for a pretty dull lecture’  I highly recommend that anyone who is interested in the future of administrative law and government regulation read Steinzor and Shapiro’s important book.  But to paraphrase Justice Scalia, you should not read the Steinzor and Shapiro book in conjunction with this review unless you are prepared to “lean back, clutch the sides of your chairs, and steel yourselves for” a serious encounter with depression.  Oh, and you should make sure there are no sharp objects in the vicinity if you take seriously both the points Steinzor and Shapiro make in their book and the points I make in this review.”

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Accounting for Power

Recent revelations in Japan suggest just how important an understanding of accounting may be.

In a post in late March, I related that many Japanese were willing to give the benefit of the doubt to TEPCO, the operator of the damaged Fukushima Dai-Ichi nuclear plant, in the days following the March 11 earthquake and tsunami. The most common excuse in the language, “Shikata ga nai” (“It can’t be helped”), struck most people as apposite, given the historical rarity of 9.0 earthquakes and 15-meter killer waves.

By now, the situation has almost been integrated into the everyday, at least for those of us far from the reactor. People speculate whether the government nuclear agency’s lead spokesperson is wearing a wig, and a cable news channel has a daily segment, “Kyou no genpatsu kiiwaado” – “Today’s nuke reactor keyword”. Any goodwill toward TEPCO has long since evaporated, thanks to its management’s sloth in apologizing, its spokespersons’ frequent misstatements and evasions in daily press conferences, and sympathy for the thousands displaced from the evacuation zone, their livelihoods derailed (and their pets and livestock reluctantly left behind to starve, an aspect of the story that has mobilized many activists here). But it turns out that even the initial goodwill was probably misplaced.
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Charismatic Megafauna Take the Fall

Recently American thought on ecology has taken a turn in a religious direction. And it’s not toward that boring old talk about a sustainable creation. Rather, a contender for the House Energy and Commerce Committee chair has “maintain[ed] that we do not have to worry about climate change because God promised in the Bible not to destroy the world again after Noah’s flood.” Glad that’s settled.

But nature does still pose a few threats to us. Reacting to a recent bear attack in Yellowstone, the American Family Association’s Director of Issues Analysis has stated that “there is no number of live grizzlies worth one dead human being. If it’s a choice between grizzlies and humans, the grizzlies have to go. And it’s time.” Sharks, rattlesnakes, scorpions, pit bulls, and even golden retrievers had better watch out!

Perhaps Werner Herzog’s film Grizzly Bear shaped Fischer’s imagination. As Herzog stated in the film:

And what haunts me, is that in all the faces of all the bears that [the protagonist of Grizzly Bear] ever filmed, I discover no kinship, no understanding, no mercy. I see only the overwhelming indifference of nature. To me, there is no such thing as a secret world of the bears. And this blank stare speaks only of a half-bored interest in food. . . . I believe the common character of the universe is not harmony, but chaos, hostility, and murder.”

Perhaps Fischer is just throwing back at the universe its nasty tendency to disregard us.

Photo Credit: Joseph Wu Origami.

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Confidentiality Clauses and BP

BP is trying to lock up information about the consequences of the gulf oil spill by enticing oceanographers to enter into consulting contracts complete with NDAs. The researchers, naturally, deny that payments will influence their data collection or conclusions: ““The data are what the data are.” But BP seems to be trying to buy off entire segments of the academy, denying funding to those who won’t agree to keep their results a secret:

“Faculty who are not contracting with BP or the government want to do independent research in the Gulf and along the coast,  . . . But they are finding funding and access very hard to come by. … [And BP was] rejected in an attempt to contract with the University of South Alabama’s entire marine sciences department. But individual faculty still have the freedom to do so, said department chairman Bob Shipp.”

Now I’m not sure that an NDA preventing disclosure of a catastrophic society risk would be enforceable.  So as an initial matter, I wonder whether BP is really getting what it thinks it is buying.  But more generally, isn’t this exactly the kind of low-hanging political fruit that the Obama administration  would do well to pick?  It ought to be easy to force BP to surrender its right to enforce these NDAs as a condition for receiving one of the many other kinds of federal largess that comes its way, or for the state to insist that faculty not enter into agreements like these as a condition of their continued employment.  The argument that academic freedom means that you get to make money on a consulting contract and to sign a nondisclosure agreement that prevents the public from knowing what might be harming it seems to me to be quite weak.

(H/T: Robert Blumberg, TLS ’12)

A Modest Proposal for Climate Change Adaptation

Dan Farber has recently complained that many “Senate candidates are signatories of the Koch Industries’ Americans For Prosperity No Climate Tax pledge.” I must assume that Prof. Farber has not heard about technological fixes for the climate change problem. As Jane Mayer reports, the “David H. Koch Hall of Human Origins, at the Smithsonian’s National Museum of Natural History, is a multimedia exploration of the theory that mankind evolved in response to climate change.” The exhibit proposes practical responses for the future:

[Exhibit] text says, “During the period in which humans evolved, Earth’s temperature and the amount of carbon dioxide in the atmosphere fluctuated together.” An interactive game in the exhibit suggests that humans will continue to adapt to climate change in the future. People may build “underground cities,” developing “short, compact bodies” or “curved spines,” so that “moving around in tight spaces will be no problem.”

In other words, don’t worry, be Eloi! “Short, compact bodies” might also fit the new 23-inch airline seats better. Perhaps critics of Social Security and the Air & Space Museum can develop an exhibition based on Regis Debray’s Modest Proposal: A Plan for the Golden Years.

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Book Review: Kysar’s Regulating From Nowhere

Regulating From Nowhere: Environmental Law and the Search for Objectivity.  By Douglas A. Kysar.  New Haven, CT: Yale University Press.  2010.  Pp. vii, 314.  $45.00

Regulating From Nowhere is a beautifully written book that would pay dividends even to the casual reader looking for a sharp treatment of the state of environmental regulation in America.  Beneath the surface, though, it is a powerful argument that our environmental law’s “redacted script”—wherein all our legislated texts of the 1970s, ‘80s, and ‘90s lead inexorably to welfare economics and its reigning orthodoxy, cost-benefit analysis—is leading us away from our ideals.  Kysar makes this argument energetically, even passionately at times.  He shows how, time after time, in context after context, cost-benefit analysis as it’s been structured has failed us in our search for any truly objective measurement of our national commitment to environmental quality as against, say, individual autonomy.  The ideologues who keep insisting still today that “willingness to pay” surveys or the other crude tools economists are taught to use as metrics of valuation are all we have to interpret these statutes will find this book disconcerting, I’m sure.  For it makes no apologies in arguing that we among the living and powerful today have deeper obligations—obligations to other cultures, future generations, and to nonhuman life—than our ‘willingness to pay’ will ever reflect.

Still further below the surface is an incipient attack on the “value monism” inherent in any conception of “public welfare” yet devised.  This is easily the boldest aspect of a bold book and I hope it gets a wider audience than, say, the few hundred legal and economics academics who dwell on the use of cost-benefit analysis in regulation today.  A value monist, in Kysar’s view, sees “environmental values” like clean streams, biodiversity, or functioning wetlands, as fungible benefits that can and ought to be liquidated in some way so that they can be allocated to the highest bidder (usually, the highest bidder of money).  Pluralist or “expressivist” versions of value deny that any such translatability can be achieved, in theory or in practice.  Places and times are unique in their valuations of “organic unities” like clean streams, estuaries, or biodiversity, an argument made by philosophers like G.E. Moore and David Ross many, many years ago.  The problem, of course, is that that mode of valuation is essentially inaccessible to the modern administrative agency.  How would an agency like EPA, the legal embodiment of a large, aggregative jurisdiction, sort out the organic unities that are to be valued as wholes from the commodities or commodity storehouses (like coal mines, corn fields, and cows) on which our modern economy rests?  If EPA’s actual record of regulation prior to the onset of its now enveloping cost-benefit neuroses is any measure, administrative agencies like EPA are just not the kind of institution where organic unities go to be properly valued. Read More

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Climate Change

One thing I’ve been thinking as the Gulf oil leak continues is how that catastrophe should influence our environmental priorities.  A lot more was written and said about climate change over the past ten years than about the risks of deep-water drilling.  That doesn’t mean that climate change isn’t a real problem, but is it the #1 problem that we face?  And is it being addressed in the right way?

Sometimes I wonder whether climate change is the modern version of strategic arms talks.  During the Cold War, massive efforts were put into negotiations on limiting increases in nuclear weapons.  That was a real problem, but I think now most people agree that those efforts were largely a waste of time.  They didn’t make the world safer.  What made the world safer was a political change that defused the underlying tension.  Nobody today cares that Russia has lots of nuclear warheads or whether they have more than we do.

Similarly, it seems to me that the solution to climate change is the development of a new and inexpensive energy source, not a new and complicated regulatory scheme for emissions.  I have confidence that governments can speed up the development of the hydrogen car.  I don’t have confidence in their ability to construct or administer cap-and-trade in an effective way.