Two and a half decades of clean energy policymaking focused primarily on environmental and economic sustainability have yielded considerable environmental and economic benefits. Along the way, however, other policy considerations, such as the social sustainability of the transition to a cleaner, renewably fueled energy economy, have gone largely overlooked. As clean energy technologies continue to gain ever-greater traction in the United States and global energy economies, the social impacts of their enabling policies become more and more salient. Already, ratepayers, taxpayers, and other stakeholders who fear being left behind by the clean energy transition question the “fairness” of today’s renewable energy policies. The underlying discontentment threatens to erode popular support for a key component of United States and global efforts to successfully mitigate anthropogenic climate change. At the heart of this debate lies the question of whether public policy support for low-carbon renewables prioritizes environmental and economic sustainability at the expense of social sustainability. The goal of this essay is not to question the “if” but rather to explore and, ideally, improve the “how” of the shift toward a less carbon-intensive, renewably-fueled, energy economy. To this end, the author proposes a framework of proxy criteria for testing and, ultimately, enhancing the social and, hence, overall sustainability of policies for the promotion of solar, wind, and other clean energy technologies.
Understanding how environmental law operates without courts depends in part in understanding what courts do and do not review. A government agency will consider the potential for judicial review in assessing what room for maneuvering it has in making a particular decision. Even if no litigation ever ensues, the shadow of judicial review can affect the options that an agency might consider. Perhaps no part of environmental law makes this point clearer than the area that concerns the federal public lands. Federal public lands management is susceptible to ongoing, consistent swings in management philosophies depending on who is President: the shift from the Clinton Administration, to the George W. Bush Administration, back to the Obama Administration, and now to the Trump Administration. The President has significant power to shape public lands management-the Clinton Administration advanced the Roadless Rule, which set about 2 percent of the land area of the lower forty-eight states aside from commercial logging and road construction, while the George W. Bush Administration greatly expanded oil and gas leasing on federal public lands. At the same time, the role that courts play in supervising public lands management has been highly contested, and it has led to some of the most significant Supreme Court cases assessing general principles ofreviewability of agency decisions in administrative law: cases such as Lujan v. National Wildlife Federation, 1 Summers v.
The search for the optimal structure and performance of the administrative or regulatory state in the United States has been ongoing for decades and shows no signs of abating anytime soon. It has spawned a rich debate about the role of key federal government actors, including the judicial, legislative, and executive branches. Consideration of the appropriate roles for administrative agencies, sometimes referred to as the fourth branch of government, has been one of the important strands in this debate. The enormous reach and impact of the administrative state no doubt contributes to the extraordinary amount of attention to and interest in how our government operates. One issue that continues to attract significant attention concerns how much discretion agencies should enjoy in the operation of the administrative state. Another is why agencies act as they do when they have discretion to pursue different courses of action. A forthcoming paper, Agency Behavior and Discretion on Remand, co-authored by leading administrative law scholars Robert L. Glicksman and Emily Hammond, considers how agencies exercise their discretion when a court invalidates an agency action. Professors Glicksman and Hammond hypothesize that four variables in particular may affect influence agency action in the remand context (the type of remand, the timetable for agency response, the valence of the agency’s action, and the timing of the Presidential Administration). My purpose is to suggest that at least four additional variables may influence agency discretionary actions on remand. These include the nature of the statutory scheme an agency is implementing, the distribution of power among relevant actors, the legal and other mechanisms available to the agency to act, and the substantive goals the agency hopes to achieve. My hope is that this paper, in tandem with that by Professors Glicksman and Hammond, will ultimately contribute to an improved understanding of factors that shape agency behavior.
As part of the Florida State University College of Law’s Environmental Law Without Courts Conference, this Essay examines two ways administrative law operates with little, if any, judicial oversight: Federal agencies play a substantial role in drafting the legislation that empowers them to regulate, and agencies then typically have broad discretion within that congressionally delegated authority to choose how to regulate. The former legislative-drafting activity fully escapes judicial review, and the agency choices made in the latter rulemaking activity are usually only reviewed by courts for reasonableness. In other words, a vast amount of agency lawmaking escapes judicial review, which suggests that it is all the more important to understand the key players within the agency that engage in these legislative and regulatory activities. Part I of this Essay briefly outlines these two types of agency lawmaking activity and how they are insulated from judicial review. Part II explores how agency design may matter in both lawmaking activities—with a particular emphasis on the agency general counsel office—by discussing the various agency organizational models identified in the author’s prior study for the Administrative Conference of the United States. In particular, the combined legislation and regulation legal office has the virtue of ensuring that those agency lawyers who help draft the legislation can fully leverage the agency’s experience and expertise in implementing the legislation, and vice versa. This Part also flags a number of best practices for agency general counsel offices to consider short of consolidating legislative and regulatory counsel in one office. This Essay is by no means a comprehensive take on how agency design choices can affect agency lawmaking. Instead, the objective here is to call attention to the topic and sketch out potential avenues for further research and discussion. Such further exploration is particularly important with respect to agency lawmaking that is insulated from judicial review.
The literature on “agency discretion” has, with a few notable exceptions, largely focused on substantive policy discretion, not procedural discretion. In this essay, we seek to refocus debate on the latter, which we argue is no less worthy of attention. We do so by defining the parameters of what we call Vermont Yankee’s “white space” — the scope of agency discretion to experiment with procedures within the boundaries established by law (and thus beyond the reach of the courts). Our goal is to begin a conversation about the dimensions of this procedural negative space, in which agencies are free to experiment with new approaches without judicial oversight. We also explore some of the ways in which energy and environmental agencies are innovating within these boundaries.
This essay offers a brief comment on Eric Biber's excellent contribution to this Law Without Courts symposium issue. First, on Biber's observation of decline in judicial review of agency programmatic decisions (particularly on U.S. federal lands), I add that this is particularly troubling because of the path-dependence of land use development. Approving extraction activity on public lands is expensive, and that expense itself creates a political economy to perpetuate such activity. Extraction is a capital-intensive venture and once the capital is in place, it plays a prominent role ensuring that policy does not interfere with the continued operation of that capital. Second, I suggest that the National Environmental Policy Act, with only slight expansions of practice, can be adapted to consider the impact of large capital expenditures, as irreversible or irretrievable commitment[s] of resources. Together, these suggestions offer a way of revisiting courts' deference to programmatic agency decisions on federal public lands.
This Comment posits that judicial review casts a shadow over all that administrative agencies do, even while admitting, at least for the sake of argument, that such review does not apply to various agency activities, some of which are identified by the principal papers in the Land Use and Environmental Law Journal symposium: “Environmental Law Without Courts.” The aspects of the shadow of judicial review that this paper explicitly discusses, but which do not exhaust the totality of that shadow, involve three different effects of such review. First, even if agencies are free from meaningful review in choice of procedures beyond those specified by statute or required by the Constitution, this Comment contends that substantive review over the ultimate agency action can significantly impact the agency choice of procedure to increase agency accountability for such choice. Second, in those cases where courts have remanded an agency action while failing to provide any explicit instruction whether the agency should continue to pursue the action, the threat of further substantive review is one of the most important factors in the agency decision whether to do so. Finally, even for an action clearly not subject to any direct judicial review — in particular, agency participation in drafting statutes authorizing or defining the scope of agency action — judicial review affects the administrative-legislative interaction by influencing the way that agencies staff their regulatory teams. The thesis of this Comment is thus broad but easy to state: judicial review of agency action casts a long shadow over all that agencies do, and one cannot meaningfully talk of Environmental Law (or any regulatory law) in the absence of courts.
This essay adds a perspective from fisheries governance to the broader inquiry into the respective roles of judicial, legislative, and executive decision-making in modern environmental law. It comments on Robin Craig and Catherine Danley’s quantitative assessment of litigation under the federal Fishery Conservation and Management Act (FCMA), and considers three key questions raised by their research: (1) Why is the judicial role in fisheries management small in comparison to the executive role? (2) When litigation is brought, why are fishery management plans the most frequent targets of litigation? And finally, (3) why is it that even with so many fisheries in decline, members of the fishing industry bring litigation more often than environmentalists? The essay begins with a quick foray into fisheries science and economics to establish the fundamental paradox of fisheries management, in which managers strive to set a sustainable yield of extraction that accounts for the various ways in which extraction can itself alter the resource, requiring successively recursive rounds of regulatory adjustment. This analysis indicates why fisheries management is ideally suited to the features of administrative governance, in contrast to the comparative advantages of legislative or judicial oversight, because bureaucratic experts can usually respond more rapidly and adaptively to a fluid stream of highly technical data. Nevertheless, when FCMA litigation does arise, fishery management plans become the most frequent targets of suit because the legislature has statutorily deferred unresolved policy clashes to the executive branch — presumably because executive actors will be better positioned to resolve them in distinctive regional fisheries, and in consultation with relevant local stakeholders. When this litigation does arise, public choice theory helps explain why professional fishers routinely outpace environmentalists to the courtroom, even though long-term conservation interests are often more imperiled than the short-term economic interests usually championed by industry participants. Despite these predictable problems, I conclude that administrative fisheries management is probably still our best bet, even if certain aspects of the FCMA could bear improvement, including improved stakeholder representation for conservation interests. Indeed, Craig and Danley’s research reveals changing litigation trends after the Sustainable Fisheries Act of 1996 and the Magnuson-Stevens Reauthorization Act of 2006 that demonstrate the dynamic interplay between all three branches of government in fisheries management. Hopefully, this pattern of engagement will remain vital in fisheries management — and ideally, wider environmental law — appropriately erring on the side of administrative process while maintaining a healthy horizontal balance of power.
Claims that hunters are exemplar conservationists would likely come as a surprise to many. Hunters, after all, kill animals. Isn’t there a better way to appreciate wildlife than to kill and consume it? Yet there is no mistake: wildlife managers frequently make the claim that hunters, in the United States at least, are in fact some of the greatest conservationists. This article explores the complex historical and contemporary entanglements between hunting and wildlife conservation in the United States from a regulatory perspective. Such entanglements are multifaceted: hunting provides substantial financial support for conservation and hunters are the state’s primary tools for managing “big game” populations. Additionally, many wildlife officials are themselves hunters, and wildlife management programs are often geared toward the interests of hunters. Statutes, regulations, and governmental policies have been set in place that both reflect and reinforce this intimate relationship. This article draws on seven in-depth, semi-structured interviews, mainly with government wildlife managers, as well as on my own participatory observations accompanying a wildlife manager on a hunting trip, to trace the interconnections between hunting and conservation and the detailed regulatory regimes that have emerged around them. The management of the white-tailed deer in New York State will serve as a case study for these explorations of how American wildlife officials think about, and practice, their work of governing wildlife hunting.
The current prolonged period of congressional impasse on environmental issues, in which symbolic ideological skirmishes have largely supplanted constructive engagement, makes clear that Congress is unlikely to generate progress on environmental issues any time soon. In response to this legislative stalemate, some environmental law scholars have advocated for giving the Environmental Protection Agency enhanced capability to take administrative action under the authority of existing environmental statutes.Without disagreeing with those arguments, this article contends that we also need strategies for environmental law that transcend, not just adapt, the canonical environmental statutes that have been the field’s mainstay since the early 1970s. Some of the more promising prospects for new and creative environmental law lie outside of its traditional realm, in a variety of other fields — energy law, land use law, agriculture law, consumer protection law, securities regulation — that increasingly incorporate environmental concerns. Moreover, these other fields are not simply borrowing from the environmental law canon; their forays into environmental law utilize quite different models for environmental lawmaking. Environmental lawmaking needs to pay more attention and invest more effort in exploring these alternative venues.
Often, scholarly legal articles are written with some trepidation that by the time they are finally printed, their titles or subjects will have become mooted or superseded by intervening events. Not so with the articles in the symposium issue of the Journal of Land Use and Environment Law, Environmental Law Without Congress. It has been a quarter of a century since Congress passed any meaningful environmental legislation, and the new 114th Congress shows no signs that it will be any different. This introduction to the symposium issue reviews some of the environmental opportunities missed by a gridlocked Congress, some of the environmental law portaging that has taken place in the past twenty-five years, and briefly summarizes the contributions to this volume.
The federal government controls 700 million acres of subsurface rights (plus 56 million subsurface acres of Indian mineral estate) across 24 states, making it the largest landowner in the nation, and therefore in a position to negotiate lease terms and shape regulations of oil and gas development. The federal Bureau of Land Management’s (BLM) rules on how drilling activity can take place on federal lands essentially dictate terms, making BLM the largest “regulator” of drilling activity in the country. BLM last revised its oil and gas regulations (the Onshore Orders) in the 1980s and early 1990s, well before the recent rapid expansion of shale gas development. To date there are two rounds of proposed revisions, the first issued in 2012 and the most recent issued in May 2013, after BLM received 177,000 comments on the first round. This paper examines the 2013 proposal in several key respects, including the scope and requirements of the new proposal, the substantial changes from the 2012 proposal, and a comparison of BLM’s proposed rules with rules in states with shale gas development and significant federal land holdings, based on earlier work. We find that BLM’s proposal addresses some apparent gaps in state-level regulation and that, generally, BLM rules do not appear to impose significant requirements beyond existing state regulations, at least across the regulatory elements we analyzed and in those states with large federal land holdings.
This article provides an overview of some of the strategies that have been used to increase the use of small-scale renewables, focusing on non-commercial renewable energy systems installed at the home or business level. The article begins in Part II with a discussion of various renewable energy incentives offered by the federal and state governments to promote the use of these alternative sources of electricity, including financial and permitting incentives. Part III continues with a detailed examination of how the land use regulatory system can be used to promote small-scale renewable energy by employing traditional zoning techniques, asserting that without an appropriate local land use regime, the incentives reviewed in Part II cannot be effectively utilized. Part IV concludes with a warning to local governments that if they fail to accommodate the emerging federal and state policies supporting the siting of renewable energy sources, they may face preemptive statutory measures in the area of land use regulation. This creates perhaps the greatest incentive for local governments to plan and regulate responsibly for promoting the appropriate use of small-scale renewable energy.
The challenges posed by climate change are daunting and have spawned an enormous literature, indeed many literatures. The legal regimes that govern our use of land and energy have already been and will continue to be integral to the effort to devise effective responses. My aim in this introductory essay is to identify and review six aspects of climate change in an effort to capture some of the ferment that now exists as policy makers, scholars, and others wrestle with the challenges that climate change poses for extant legal regimes. I then briefly summarize the articles in this symposium volume.
Visiting Professor, University of North Carolina School of Law and Distinguished Professor, University of South Carolina School of Law. All of the ideas in this paper are direct or indirect products of a decade -long collaboration with Steve Palumbi, Jim Sanchirico, and Buzz Thompson. I would like to thank the Florida State University College of Law for inviting me to participate in the 25th Anniversary Symposium for the Journal of Land Use and Environmental Law's Distinguished Lecture Series, the students of the Journal for organizing and hosting an outstanding event, and my co-panelists, especially Donna Christie, John Echeverria, Alison Rieser, and Bill Rodgers, for their friendship and guidance over the years. 1. Exec. Order No. 13,547, 75 Fed. Reg. 43,023 (July 22, 2010). Based on a review of past executive orders, Executive Order 13,547 appears to be rare or unique insofar as it incorporates a lengthy (77 pages, excluding appendices) external document, the Final Recommendations of the Interagency Ocean Policy Task Force. WHITE HOUSE COUNCIL ON ENvtl. Quality, Final Recommendations of the Interagency Ocean Policy Task Force (2010) [hereinafter TASK FORCE REPORT]. Executive Order 13,547 adopts the recommendations of the [task force], except where otherwise provided in this order. Exec. Order No.
As a contribution to the debate over market-based environmental regulation, this article examines the reaction of stakeholders to cap-and-trade programs proposed and/or implemented in the United States, the European Union, and the Netherlands for industrial emissions of certain pollutants. Those pollutants include nitrogen oxides (NOX), sulfur dioxide (SO2), mercury (Hg), and greenhouse gases such as carbon dioxide (CO2). For the purpose of the article, stakeholders include environmental groups, regulators, and particularly industry. The broad conclusion, to which the remainder of the article provides context, is straightforward: Industry dislikes regulation. It strongly dislikes redundancy. It loathes uncertainty. Even emitters that have profited through emissions trading seem to remain generally averse to uncertainty. The result is a bias for the status quo, except when that status quo becomes too unpredictable or otherwise burdensome, and a bias against overlapping regulatory regimes.
This article is a short essay that uses an economic analysis of the need for and potential abuses of eminent domain used to transfer property from one private entity to another. It adds to the current literature by suggesting that states can establish mechanisms for evaluating and compensating current landowners for the idiosyncratic value they place on their property, and can establish administrative procedures and judicial review essentially to require local governments to auction the opportunity to obtain the property to the private entity that will provide the greatest benefit to the jurisdiction.
