American Natures: The Shape of Conflict in Environmental Law
By Jedediah Purdy
There is a firestorm of political and cultural conflict around environmental issues, including, but running well beyond, climate change. Legal scholarship is in a bad position to make sense of this conflict because the field has concentrated on making sound policy recommendations to an idealized lawmaker, neglecting the deeply held and sharply clashing values that drive, or block, environmental lawmaking. This Article sets out a framework for understanding and engaging the clash of values in environmental law and, by extension, approaching the field more generally. Americans have held, and legislated based upon, four distinct ideas about why the natural world matters and how we should govern it. Each of these conceptions persists in a body of environmental law, a network of interest and advocacy groups, the attitudes and even identities of ordinary citizens, and even the American landscape. The first, providential republicanism, treats nature as intended for productive human use and gives high status to its users: this idea justified the European claim to North America, defined public debates about nature in the early republic, and persists in important aspects of private and public land-use law. The second conception, progressive management, arose in the later nineteenth century as part of a broader legal reform movement and gave its shape to much of federal lands policy, notably creation of the national forests and national parks. In this idea, nature’s productive use requires extensive management by public-spirited experts, whom reformers imagined as steering the environmental policy of the administrative state. The third conception, romantic epiphany, concentrates on the aesthetic and spiritual value of nature and has defined national parks policy, spurred creation of the national wilderness system, and lent essential support to the Endangered Species Act. This idea entered environmental politics at the turn of the last century, with the efforts of the Sierra Club and other innovators. The most recent conception of nature, ecological interdependence, arose in the middle of the twentieth century and shaped much of the environmental law of the 1970s and thereafter. This conception treats nature as an intensely inter-permeable web, of which humans are unavoidably a part, to our benefit and hazard. All of these ideas persist in today’s environmental law and politics and provide a map of our existing statutes and doctrines, the conflicts around those laws, and emerging issues such as climate change.
Cite as: Jedediah Purdy, American Natures: The Shape of Conflict in Environmental Law, 36 Harv. Envtl. L. Rev. 169 (2012).
The Geography of Trading Ecosystem Services: A Case Study of Wetland and Stream Compensatory Mitigation Markets
By Philip Womble & Martin Doyle
With the exception of greenhouse gas trading programs, environmental markets are prisoners of their own geography — and with good reason. Climate change is a global phenomenon, and so carbon markets can be geographically all-inclusive — a ton of carbon dioxide emitted in Beijing has the same effect as a ton of carbon dioxide emitted in New York. Other environmental markets are more nuanced. Markets for water quality, biodiversity, endangered species, fisheries, air quality, and aquatic resources, to name a few, must recognize that the commodities they trade exist at particular geographic scales, and set appropriate spatial limits on the redistribution of environmental quality. The size of geographic trading areas has significant implications for the economic viability of markets and the ecological quality of their offsets.
U.S. wetland and stream mitigation markets, which emerged in the 1980s, provide perhaps the most established empirical example of how environmental markets function. This Article presents the first systematic assessment of the federal and state laws, regulations, guidance, and operating practices that shape the geographic size of U.S. wetland and stream markets. This Article first addresses the history of these geographic restrictions under the Clean Water Act, the importance of spatial context for ecosystem functions and services, and the economic-ecological tradeoffs implicated by geographic trading limits. Then, based on the results of the assessment, this Article argues that regulators should increase their transparency and consistency in setting geographic trading limits. It also presents a framework for using more specific geographic limits for different types of wetland and stream offsets to enhance a market’s ecological and economic stability. Lessons from setting geographic limits for wetland and stream markets can be applied to other, nascent environmental markets.
Cite as: Philip Womble & Martin Doyle, The Geography of Trading Ecosystem Services: A Case Study of Wetland and Stream Compensatory Mitigation Markets, 36 Harv. Envtl. L. Rev. 229 (2012).
Wilderness, the Courts, and the Effect of Politics on Judicial Decisionmaking
By Peter A. Appel
Empirical analyses of cases from federal courts have attempted to determine the effect of judges’ political ideology on their decisions. This question holds interest for scholars from many disciplines. Investigating judicial review of the actions of administrative agencies should provide strong evidence on the question of political influence because applicable rules of judicial deference to administrative decisions ought to lead judges to reach politically neutral results. Yet several studies have found a strong correlation between results in these cases and proxies for political ideology. Cases involving the interpretation of environmental law have been of particular interest as a subset of this research because political ideology is also thought to predict views on environmental regulation. Nevertheless, an earlier work offered initial evidence that this phenomenon may not hold in cases involving review of agency decisions administering the Wilderness Act of 1964. Indeed, the cases showed a pro-wilderness tilt in the outcomes, rather than a pro-agency tilt. This Article builds on that earlier evidence. It first provides an overview of empirical studies of environmental decisions in federal courts and then reviews the Wilderness Act and current problems arising in the administrative application of it. The Article then analyzes whether ideological proxies employed in earlier studies strongly correlate with the outcome of the Wilderness Act cases using standard statistical analysis. The analysis shows a lack of correlation between politics and the aggregate outcome of wilderness decisions, namely a tilt in a pro-wilderness direction.
Cite as: Peter A. Appel, Wilderness, the Courts, and the Effect of Politics on Judicial Decisionmaking, 35 Harv. Envtl. L. Rev. 275 (2011).
Two Cheers for Feasible Regulation: A Modest Response to Masur and Posner
By David M. Driesen
This Article compares the relative merits of feasibility and cost-benefit based regulation, responding to a recent article by Jonathan Masur and Eric Posner on this topic. Normatively, it shows that the lack of correlation between non-subsistence consumption and welfare supports the argument that regulation should be strict, unless widespread plant shutdowns, which would seriously impact well-being, are involved. It demonstrates that a host of practical defects Masur and Posner find in feasibility analysis would infect cost-benefit analysis as well in light of the importance of cost’s distribution, the feasibility principle respresents a reasonable effort to politically resolve difficult normative issues.
Cite as: David M. Driesen, Two Cheers for Feasible Regulation: A Modest Response to Masur and Posner, 35 Harv. Envtl. L. Rev. 313 (2011).
The Obama Administration’s National Auto Policy: Lessons from the “Car Deal”
By Jody Freeman
This Article is the first comprehensive analysis of the Obama Administration’s national auto policy, which set the first federal greenhouse gas standards and strictest fuel efficiency standards for new cars and trucks in U.S. history. It describes the complicated legal, administrative and political background that led to a harmonized federal program, including the history of litigation and conflict among the auto industry, environmental groups, California and federal regulators. It explains how a confluence of events — a new administration, a domestic auto industry in crisis, a landmark Supreme Court decision, and collective exhaustion with a thirty-year struggle over fuel efficiency standards — primed all of the parties to support a solution, one that would require significant legal and administrative dexterity to devise and implement. The Article describes in detail the joint rulemaking by the U.S. Environmental Protection Agency and the National Highway Traffic Safety Administration, through which the agencies established a new uniform program. It explores how the joint rulemaking process afforded the agencies an opportunity to pool information and expertise, harmonize potentially inconsistent regulatory approaches and bridge cultural differences. It also chronicles the innovative use of commitment letters to formalize industry and state support for the joint rule, and to settle pending preemption litigation. The Article discusses the implications of the “car deal” for the Obama Administration, which at the time was bailing out the auto industry, pressing Congress for comprehensive energy and climate legislation, and anticipating the U.N sponsored climate negotiations in Copenhagen. It also discusses the importance of the car deal to environmental law. As the first binding federal regulation of greenhouse gas emissions under the Clean Air Act, this mobile source rule exerted a legal domino effect, leading, inexorably, to EPA regulation of stationary sources as well. The national auto policy thus unleashed the most powerful existing tool the administration had at its disposal for tackling the problem of global climate change. The Article concludes with a discussion of the implications for administrative law, arguing that one of the most important legacies of the car deal is the new prominence it brought to joint rulemaking, which has significant potential to improve the clarity and quality of regulation in situations where agencies share overlapping or closely related regulatory authority.
Cite as: Jody Freeman, The Obama Administration’s National Auto Policy: Lessons from the “Car Deal”, 35 Harv. Envtl. L. Rev. 343 (2011).
Commerce in the Commons: A Unified Theory of Natural Capital Regulation Under the Commerce Clause
By Blake Hudson
Scholars continue to debate the scope of Congress’s Commerce Clause authority and whether fluctuations in the U.S. Supreme Court’s Commerce Clause jurisprudence place federal environmental regulatory authority at risk. Yet when one analyzes major Commerce Clause cases involving resource regulation since the beginning of the modern regulatory state, a consistent theme emerges: both the Supreme Court and Circuit Courts of Appeals have consistently upheld federal authority to regulate depletable natural resources, the appropriation of which is non-excludable — key characteristics of a commons. Commerce Clause jurisprudence can be interpreted as treating appropriation of this natural capital, here described as “privatized commons resources,” as fundamentally meeting the third test for determining the validity of federal legislation under the Commerce Clause — the “substantial effects” test. Using commons analysis to meet the substantial effects test has the potential to provide a unified theory of federal environmental regulatory authority under the Commerce Clause, a clearer statement of the jurisprudential approach in environmental cases, and more certainty and effectiveness in environmental and natural resources legislation. Commons analysis also assists in answering persistent questions arising in Commerce Clause cases, including when the “aggregation principle” may be invoked to find substantial effects on interstate commerce, what the “object of regulation” is in environmental Commerce Clause cases, and what the proper scope of federal Commerce Clause authority is given constitutional federalism limitations.
Cite as: Blake Hudson, Commerce in the Commons: A Unified Theory of Natural Capital Regulation Under the Commerce Clause, 35 Harv. Envtl. L. Rev. 375 (2011).
Can the ESA Address the Threats of Atmospheric Nitrogen Deposition? Insights from the Case of the Bay Checkerspot Butterfly
By Zdravka Tzankova, Dena Vallano, & Erika Zavaleta
The Bay Checkerspot Butterfly reached its threatened status largely as a result of habitat loss through development. The species now benefits from the habitat protection powers of the Endangered Species Act, yet the biggest new hazard to the survival of remaining Bay Checkerspot Butterfly populations may come from atmospheric nitrogen deposition. Driven by combustion and agricultural emissions, such deposition is an important cause of change in ecosystem structure and function, including potentially critical changes in the remaining Bay Checkerspot Butterfly habitat. We use the Bay Checkerspot Butterfly case to examine whether the Endangered Species Act, as it currently stands, is capable of protecting endangered species from the newly appreciated, remote-origin threat of nitrogen deposition. We employ legal analysis that builds on relevant case law to determine whether the limitations
on harmful activities as set by sections 7 and 9 of the Endangered Species Act can be applied to the emissions that cause nitrogen deposition. As part of the analysis, we juxtapose our case with a similar case that has become quite salient in recent discussions of conservation law: the case for using the Endangered Species Act to help control greenhouse gas emissions.
Our findings leave us cautiously optimistic that the take and jeopardy prohibitions of the Endangered Species Act could be fruitfully leveraged against existing federal and state air quality and emission control programs to help improve the protection of nitrogen-sensitive species and ecosystems.
Cite as: Zdravka Tzankova et al., Can the ESA Address the Threats of Atmospheric Nitrogen Deposition? Insights from the Case of the Bay Checkerspot Butterfly, 35 Harv. Envtl. L. Rev. 433 (2011).
Expanding Regional Renewable Governance
By Hannah Wiseman
Energy drives economies and quality of life, yet accessible traditional fuels are increasingly scarce. Federal, state, and local governments have thus determined that renewable energy development is essential and have passed substantial requirements for its use. These lofty goals will fail, however, if policymakers rely upon existing institutions to govern renewable development. Renewable fuels are fugitive resources, and ideal property for renewable technology is defined by the strength of the sunlight or wind that flows over it. When a potential site for a utility-scale development is identified, a new piece of property, which I call a “renewable parcel,” is superimposed upon existing boundaries and jurisdictional lines. The entities within the parcel all possess rights to exclude, and this creates a tragedy with anticommons and regulatory commons elements, which hinder renewable development.
In a renewable parcel, numerous rights of exclusion in the form of fee simple ownership, leasing rights, use rights, and regulation make use of a renewable parcel difficult and create anticommons-type problems. The multiple jurisdictions that may underlie the parcel also lead to a regulatory commons, wherein no one government is sufficiently incentivized to create a workable governance regime.
This Article argues that the many exclusion rights within renewable parcels must be consolidated and governed by a regional agency to address these barriers to renewable development, and it analyzes elements of existing regional institutions to begin to suggest the ideal structure of this agency. Once formed, the regional framework
should be applied to other areas of energy planning. States and municipalities share oil and gas reservoirs, electricity transmission constraints, and energy generation needs, and collaborative governance in these areas is necessary for a secure future.
Cite as: Hannah Wiseman, Expanding Regional Renewable Governance, 35 Harv. Envtl. L. Rev. 477 (2011).
Remarks: New Directions in Environmental Law: A Climate of Possibility
By Lisa Heinzerling
On April 2nd, 2011, the Yale Environmental Law Association, together with a diverse group of students, academics, and practitioners, gathered for the first conference of the New Directions in Environmental Law series. Attendees critically examined environmental law as a field and imagined new directions for bringing law to bear on the changing scope and nature of environmental challenges. Reflected in the conference theme, A Climate of Possibility, such student-driven efforts embody an aspiration to look beyond logjams and political divides and to open up new value-driven possibilities in environmental law. Lisa Heinzerling, the recipient of the conference’s inaugural award, embodies the spirit of this endeavor. In her keynote address, reproduced below, Heinzerling urges the lawyers of today and tomorrow to look beyond traditional narratives to address the underlying laws and institutions that produce the infrastructure of the polluting state. Heinzerling began her speech with a quote from “Goose Music,” a passage from Aldo Leopold’s A Sand County Almanac, after the conference organizers presented to her a commemorative edition of the book in recognition of her inspiring work.
Cite as: Lisa Heinzerling, Remarks: New Directions in Environmental Law: A Climate of Possibility, 35 Harv. Envtl. L. Rev. 263 (2011).
Comment: American Electric Power Co. v. Connecticut
By David R. Brody
On June 20, 2011, the Supreme Court issued a unanimous and straightforward decision that the Clean Air Act displaces federal common law public nuisance claims against greenhouse gas emitters. The decision solidifies
the Environmental Protection Agency (“EPA”)’s primacy, established in Massachusetts v. EPA, as the climate change regulator. In American Electric Power Co. v. Connecticut (“AEP”), the Court ruled that displacement occurs when a statute “speaks directly to the question at issue.” This Comment dissects the Court’s decision, analyzes its impact on environmental actions under federal common law, and discusses how it builds on Massachusetts.
Cite as: David R. Brody, Comment, American Electric Power Co. v. Connecticut, 36 Harv. Envtl. L. Rev. 297 (2012).
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