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Editor’s Note

Ecological Crossroads

Victor S. Reuther

 

Articles

Interest Groups and Environmental Policy: Inconsistent Positions and Missed Opportunities        

Michael A. Livermore & Richard L. Revesz

This Article examines and explains the positions of the principal interest groups over the past four decades with respect to two central questions of environmental policy: the appropriate policy goal and the instrument that should be used to carry out the policy. With respect to the first question, this Article observes that, at the beginning of the contemporary period of environmental law, industry groups strongly supported setting the stringency of environmental standards by reference to cost–benefit analysis. At the same time, environmental advocacy organizations strongly opposed the use of cost–benefit analysis. As environmental regulators gained greater proficiency in the quantification and monetization of environmental benefits, industry groups came to see that, when properly conducted, cost–benefit analysis could justify stringent environmental protection. Consequently, they have abandoned their original enthusiasm for the technique. Similarly, over the same period of time, environmental groups came to see the promise of cost–benefit analysis, for similar reasons.

With respect to instrument choice, industry groups were originally attracted to marketable permit schemes as a lower-cost means of achieving pollution reduction, while environmental groups were skeptical of these approaches. First with the Clean Air Act Amendments of 1990, and then when faced with the daunting challenge of climate change, environmental groups acknowledged that market mechanisms are more economically and politically viable than command-and-control regimes because they impose far lower aggregate costs on society. And industry groups realized that by attacking marketable permit schemes they might defeat greenhouse gas regulation altogether. While environmental groups and industry have largely switched positions on the two central questions of environmental policy, there was a brief time when their positions largely overlapped. As a result of the fleeting nature of this consensus, however, the opportunities to make substantial progress in rationalizing the system of environmental regulation have been unrealized.

Climate Change Regulation and EPA Disincentives             

Howard A. Latin

This Article criticizes the U.S. Environmental Protection Agency’s (EPA) climate change regulations and policies, arguing that EPA has failed to control the dangerous level of greenhouse gas discharges that have been causing the steady growth of global warming and climate change. Unlike other critiques of EPA climate change efforts, this Article focuses on the administrative incentives and disincentives shaping EPA’s inadequate regulatory performance. The relevant disincentives include insufficient budgets and personnel, exposure to constant criticism from affected parties, especially congressional criticisms arising from the lobbying efforts of wealthy fossil fuel industries, the inability to resolve many scientific and economic uncertainties, and the continuing absence of widespread public support. This Article contends that adopting, revising, or extending ambitious climate change laws and regulations will never succeed in overcoming climate change hazards as long as EPA and other environmental protection, health, and safety agencies lack essential public backing, financial support, and positive professional and personnel incentives.

Origins of the Clean Air Act: A New Interpretation                         

Christopher D. Ahlers

Given the increased national attention to the use of the Clean Air Act to address climate change, an analysis of the origins of the Clean Air Act is instructive for understanding the law in its current form. Contrary to the traditional view, the formation of the Clean Air Act was not the result of the events of the Year of the Environment, but rather, the gradual evolution of a federal regulatory approach to the medium of air between 1955 and 1970. Far from being weak and ineffectual, the federal air pollution laws of 1955, 1963, 1965, and 1967 laid the legal and conceptual framework for the modern Clean Air Act.

U.S. Military Responsibility for Environmental Cleanup in Contingency Environments 

Jennifer Ann Neuhauser

Environmental destruction is an inevitable byproduct of warfare. However, the new paradigm of U.S. military contingency operations requires a strategic vision beyond merely engaging the enemy. American military commanders in the 21st century must also seek to win the hearts and minds of a local population in order to solidify gains and ensure a lasting victory. Unfortunately, many commanders have not adapted to this new way of thinking. As a result, commanders fail to consider the long-term environmental damage inflicted by their soldiers during combat operations, damage which must be borne by the civilian population. Such damage includes hidden unexploded ordnance hazards, depleted uranium, and other hazardous waste generated by the day-to-day operations of U.S. military personnel deployed to contingency environments. Though commanders claim exigent circumstances prohibit them from implementing environmental controls, the long-term nature of current U.S. occupation—up to thirteen years—undermines these excuses. In fact, the U.S. military has a robust collection of policies, regulation, and personnel, which could be modified to limit the amount of damage caused by military deployments.

This Article examines the existing hazards in contingency environments and the collection of U.S. military regulations, which apply to “enduring” bases, and those in the Continental United States. Additionally, it surveys the international laws regarding environmental destruction currently applicable to U.S. deployments, as well as what methods of recourse citizens of Iraq and Afghanistan have to address environmental damage caused by the U.S. military. Finally, it proposes solutions to deal with gaps in U.S. and international law and policy in order to prevent and mediate environmental damage caused by U.S. contingency operations and provides methods of recourse by citizens of countries hosting military deployments.

Essays

Complexity and Simplicity in Law: A Review Essay (Cass R. Sunstein, Simpler: The Future of Government (2013))           

David M. Driesen

This Essay discusses Cass Sunstein’s book, Simpler: The Future of Government, in order to advance our understanding of the concepts of complex and simple law. Many writers identify complexity with uncertainty and high cost. This Essay argues that complexity bears no fixed relationship to costs or benefits. It also shows that complexity’s relationship to uncertainty is so ambiguous that it is profitable to treat complexity and uncertainty as separate concepts. It develops useful separate concepts of legal and compliance complexity that will aid efforts to simplify law, like the effort Sunstein claims to have embarked upon. It also argues that complexity is a hallmark of moderation, since it often arises from compromises reconciling competing interests and values. These basic points constitute important advances in the theory of complexity, which implicitly suggests something like this, but has not cleanly distinguished complex rules from costly or uncertain rules and has not explicitly identified complexity with moderation.

Sunstein’s book, while quite valuable in many ways, does not greatly advance discussion of how to simplify law, because he assumes that whatever happens to coincide with his political philosophy must be simpler. He is not alone in assuming a happy coincidence between his values and the simplification ideal, but this Essay shows there is little overlap between Sunstein’s endorsement of nudges and cost–benefit analysis and serious efforts to simplify the law. The theory I articulate leads to a keener appreciation of the need to accept some tradeoffs between simplicity and other values if we truly wish to make law “simpler.” The Essay closes with some thoughts about addressing these difficult tradeoffs.

Comments

Alternative Solutions to Power Oversupply in the Pacific Northwest                                        

Emily Rietmann

Wind energy is the fastest-growing source of energy in the world. This comes as no surprise in the Pacific Northwest region of the United States where wind turbines are widespread. The advantages of wind energy make it an attractive source of new energy. But integrating wind energy into the existing energy system has proven difficult in the Pacific Northwest where there is an abundance of power. When energy oversupply events occur, the Bonneville Power Administration (BPA) displaces wind energy in favor of federal hydropower generation. Unsurprisingly, wind generators are frustrated with BPA’s response, which threatens to eliminate their remuneration. This Comment proposes two storage methods—aquifer recharge and pumped hydropower—as alternatives to curtailing wind generation in the Pacific Northwest.

Fracking-Caused Earthquakes: How Alleged Threats Could Trigger the Corps of Engineers’ Section 10 Jurisdiction                             

Jacob Booher

A growing body of science links hydraulic fracturing (fracking) to damage-causing earthquakes. Scientists and citizen groups fear these earthquakes could critically damage public civil works projects—e.g., dams, locks, and levees—that provide economic, environmental, and recreational benefits to the United States. This Comment argues that the U.S. Army Corps of Engineers (Corps), as caretaker of these public civil works projects and their associated navigable waters, has sufficient legal authority under section 10 of the Rivers and Harbors Act to manage the alleged risks. This Comment analyzes how section 10 has been successfully applied to regulate activities that, like fracking, take place outside of navigable waterways yet threaten the navigable capacity of U.S. waters. This Comment maintains that pursuant to section 10, the Corps could subject certain fracking operations to its existing permit program and seek to enjoin other similar operations. After acknowledging likely resistance to what would be an expansion of federal control over fracking, this Comment concludes that section 10 provides a strong legal foundation upon which the Corps could take action to protect its civil works projects from threats posed by fracking-caused earthquakes.