Harvard Environmental Law Review最新文献

{"title":"Reconstituting the Federalism Battle in Energy Transportation","authors":"Alexandra B. Klass, Jim Rossi","doi":"10.2139/SSRN.2836078","DOIUrl":"https://doi.org/10.2139/SSRN.2836078","url":null,"abstract":"This article explores the growing federalism tensions in efforts to expand the nation’s energy transportation infrastructure — the electric transmission lines, natural gas pipelines, natural gas import and export terminals and related infrastructure that power the U.S. electricity and transportation systems. It uses two illustrations — one involving an interstate electric transmission line (subject to state jurisdiction) and one involving and an interstate natural gas pipeline (subject to federal jurisdiction) — to highlight how the clear jurisdictional lines between federal and state authority over these projects created decades ago is no longer adequate for today’s energy needs. We believe that many of the recent efforts by states and federal agencies to re-draw these jurisdictional battle lines in the context of particular projects have been counterproductive. They have they encouraged interest groups to entrench their respective positions in favor of state or federal regulatory power. They also have thwarted comprehensive and efficient energy planning, and have stood in the way of greater integration of new technologies and more diverse energy resources. Ultimately, we conclude that federal regulators — which have historically been much more attuned to federal and national energy needs in making project siting decisions — must be more proactive in addressing state interests and concerns associated with multi-state energy transport projects in cases where federal siting authority trumps that of the states. Likewise, for projects where the states possess primary regulatory authority that acts as a potential veto point over projects that promote federal and regional energy needs, a more significant federal role in evaluating those federal and regional needs is warranted.","PeriodicalId":45668,"journal":{"name":"Harvard Environmental Law Review","volume":"10 1","pages":"423-492"},"PeriodicalIF":1.3,"publicationDate":"2016-09-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75319780","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Fracking, Federalism, and Private Governance","authors":"A. Leiter","doi":"10.2139/SSRN.2407102","DOIUrl":"https://doi.org/10.2139/SSRN.2407102","url":null,"abstract":"The United States is in the midst of a natural gas boom, made possible by advances in drilling and extraction technologies. There is considerable disagreement about the relative benefits and costs of the boom, but one thing is certain: it has caught governments flat-footed. The federal government has done little more than commission a study of some associated public health and environmental risks. States have moved faster to address natural gas risks, but with little consistency or transparency. Numerous private organizations are beginning to fill the resulting governance gaps with information-gathering and standards-setting efforts. This Paper documents these efforts and then uses a concrete policy proposal — the development of sustainable shale gas credits — to argue that these private entities are well positioned to facilitate the development and horizontal and vertical diffusion of innovative public governance strategies. In other words, these entities are fulfilling the experimentation function once assigned to states in so-called “laboratory federalism.” The Paper ends on a cautionary note, however. Private governance efforts often suffer from a lack of openness, balance, and accountability. Worse, there is reason to fear that familiar procedural reforms aimed at fixing those problems for public agencies may work far less well in the private context.","PeriodicalId":45668,"journal":{"name":"Harvard Environmental Law Review","volume":"09 1","pages":""},"PeriodicalIF":1.3,"publicationDate":"2014-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90331137","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Ten Ways States Can Combat Ocean Acidification (and Why They Should)","authors":"R. Kelly, M. Caldwell","doi":"10.2139/SSRN.2020520","DOIUrl":"https://doi.org/10.2139/SSRN.2020520","url":null,"abstract":"37 HARV. ENVTL. L. REV. 57 (2013). Republished with permission from the Harvard Environmental Law Review, 37 Harv. Envtl. L. Rev. 57 (2013) (the Washington Journal of Environmental Law & Policy made no edits to this article). Please note that the copyright in the Harvard Environmental Law Review is held by the President and Fellows of Harvard College, and that the copyright in the article is held by the author.","PeriodicalId":45668,"journal":{"name":"Harvard Environmental Law Review","volume":"10 1","pages":""},"PeriodicalIF":1.3,"publicationDate":"2013-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85002429","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Administrative Proxies for Judicial Review: Building Legitimacy from the Inside-Out","authors":"E. Hammond, David L. Markell","doi":"10.2139/SSRN.2127838","DOIUrl":"https://doi.org/10.2139/SSRN.2127838","url":null,"abstract":"Judicial review is considered an indispensible legitimizer of the administrative state. Not only is it a hallmark feature of the Administrative Procedure Act, but the various standards of review reinforce democratic norms, promote accountability, and act as a check against arbitrariness. Unreviewable agency actions, therefore, must find their legitimacy elsewhere. This article evaluates the promise of “inside-out” legitimacy as an alternative or complement to judicial review. We theorize, based on insights from the administrative law and procedural justice literatures, that administrative process design can do much to advance legitimacy without the need to rely on judicial review to check administrative decisionmaking. Next, we connect the theoretical conceptions of legitimacy to administrative behavior by offering metrics for testing intrinsic legitimacy. To demonstrate how these metrics might be applied, we present an empirical study of an innovative administrative fire-alarm process that enables interested parties to petition EPA to withdraw states’ authorization to administer the major environmental statutes. While this process may trigger a variety of responses by EPA, there is generally little recourse to the courts for citizens dissatisfied with the process or its outcomes. Our findings suggest that, even without external checks, EPA engages in numerous behaviors indicative of intrinsic legitimacy. In addition, the process itself produces real substantive outcomes. Armed with these findings, we conclude with an assessment of institutional design features that may contribute to inside-out legitimacy.","PeriodicalId":45668,"journal":{"name":"Harvard Environmental Law Review","volume":"4 1","pages":"313"},"PeriodicalIF":1.3,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90398844","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Choosing How to Regulate","authors":"Andrew P. Morriss, B. Yandle, Andy Dorchak","doi":"10.2139/SSRN.530163","DOIUrl":"https://doi.org/10.2139/SSRN.530163","url":null,"abstract":"In this Article, the authors survey how agencies create substantive regulations through traditional rulemaking, negotiated rulemaking and litigation. Using public choice analysis, the Article relates agency choice to the agency's incentive structure. The Article also shows how the different forms of regulatory activity influence the content of agency regulations. Using a case study of EPA's regulation of heavy duty diesel engines, the Article examines EPA's choices over 30 years as a means of testing the proposed theory. Finally, the Article concludes with a critique of allowing agencies to choose how they will regulate because it allows agencies to evade constraints imposed by Congress and the President and so diminishes political accountability.","PeriodicalId":45668,"journal":{"name":"Harvard Environmental Law Review","volume":"39 1","pages":"179"},"PeriodicalIF":1.3,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87117599","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Givings Recapture: Funding Public Acquisition of Private Property Interests on the Coasts","authors":"Daniel D. Barnhizer","doi":"10.2139/SSRN.436700","DOIUrl":"https://doi.org/10.2139/SSRN.436700","url":null,"abstract":"This Article explores the feasibility of using \"givings recapture mechanisms\" to promote effective land use management on coastal floodplains. Specifically, current government responses to floods and flood risks - typified by regulatory restrictions on floodplain land use, structural protections, and flood insurance or disaster relief - transfer substantial \"givings\" to private property owners. These givings have dramatically increased the value of coastal properties and continue to promote or maintain in place unwise and unsustainable coastal floodplain development. Ironically, increased coastal property values resulting from such givings have rendered prohibitively costly one land use management technique that has proven effective at reducing flood losses - public acquisition of high-risk or environmentally sensitive private property. While many scholars and commentators have approached this problem from the perspective of eliminating subsidization of floodplain development, my analysis is unique in that it recommends that government attempt to recapture past givings by offsetting those givings as a credit against the compensation the government must pay when it acquires private floodplain property. Such an approach would protect legitimate investment-backed expectations of landowners while effecting a long-term retreat from coastal floodplains threatened by rising sea levels and increasing hurricane risks.","PeriodicalId":45668,"journal":{"name":"Harvard Environmental Law Review","volume":"31 1","pages":"295"},"PeriodicalIF":1.3,"publicationDate":"2003-08-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79508412","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Environmental Justice in an Era of Devolved Collaboration","authors":"Sheila Rose Foster","doi":"10.2139/SSRN.291510","DOIUrl":"https://doi.org/10.2139/SSRN.291510","url":null,"abstract":"This Essay examines the move by environmental and natural resources agencies to devolve decision making influence to local, multi-stakeholder, collaborative groups. The emerging use of such decision making mechanisms - such as forestry and watershed partnerships and community advisory committees - reflects the need for more creative solutions to the current generation of environmental problems and for improved decision making processes for identifying and equitably distributing the costs and benefits of environmental decisions. In seeking more participatory, local and holistic decision making mechanisms, the move toward devolved collaboration intersects and converges with another prominent movement, environmental justice, in ways that are crucial for the future of environmental decision making. This Essay examines the points of convergence and divergence between these two important currents in modern environmental decision making. On the one hand, the interest-convergence of these two powerful currents in modern environmentalism has been a crucial element shaping the direction of environmentalism from the 1990s into the new century. There are now more voices than ever calling for the creation of democratic, sustainable communities and for a more comprehensive approach to environmental problems that address the connections between environmental, economic and civic health. Yet, despite the interest-convergence of these two powerful currents in modern environmentalism, there are dangers lurking at their intersection. This Essay argues that while devolved collaboration can theoretically ameliorate some regulatory inequities, it may also add renewed legitimacy to racial and class distributional inequities, further entrenching them in the landscape of environmental decision-making. Perhaps as importantly, devolved collaboration will introduce new equity problems in environmental decision-making by modifying current patterns of participation and representation in unforeseen ways. Like its predecessor decision making approaches, this evolving model, thus far, is indifferent to (or innocent about) the social structural and institutional conditions necessary to realize its own promises, including its aspiration of more equitable decisions. This Essay concludes that the movement toward devolved collaboration should best be regarded as the collective expression of a core set of normative principles that can guide the shaping of environmental decision making processes in a context-specific fashion. These normative principles can be used to tailor a mix of decision making mechanisms to specific environmental problems in particular ecological, social, economic, and political contexts. This contextualized approach brings with it the additional virtue of preserving the accountability of centralized authorities for ensuring fidelity to these principles in specific contexts instead of leaving this task to unaccountable, fragmented local groups.","PeriodicalId":45668,"journal":{"name":"Harvard Environmental Law Review","volume":"1 1","pages":"459"},"PeriodicalIF":1.3,"publicationDate":"2001-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89970173","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"A Game Theoretic Approach to Regulatory Negotiation: A Framework for Empirical Analysis","authors":"Shi-Ling Hsu","doi":"10.2139/SSRN.282962","DOIUrl":"https://doi.org/10.2139/SSRN.282962","url":null,"abstract":"While regulatory agencies have been engaging in negotiation with regulated parties and other stakeholders for decades now, careful study of the implications of such negotiations have lagged. In particular, while several commentators have now staked out intellectual ground on the theoretical ramifications of regulatory negotiation, empirical analyses of regulatory negotiations have been lacking. This article analyzes the implications of regulatory \"reinvention\" as the latest in a series of administrative initiatives aimed at achieving better rulemaking and adjudication through negotiations. Reinvention is commonly understood to mean those programs that utilize negotiated agreements to implement regulatory requirements imposed by various environmental statutes. Controversy has visited reinvention, as several specific reinvention projects have raised questions regarding the legality of this administrative practice. Using an economic game-theoretic model, this article argues for a continuation of this practice, but under new statutory authorizations. Reinvention accomplishes much-needed flexibility in environmental statutes that have suffered from partisan Congressional gridlock, and by and large effectuate minor common sense amendments. Several instances of administrative failures, however, have jeopardized the legitimacy of this practice. Statutory authorizations, coupled with funding for enforcement and specific guidelines limiting agency discretion can bring legitimacy to regulatory negotiation. In addition, objective means of monitoring and evaluating the effectiveness of agencies in conducting negotiations are necessary. Towards this end, this article argues for empowerment of citizen groups and presents an empirical means of evaluating the fairness of regulatory negotiations.","PeriodicalId":45668,"journal":{"name":"Harvard Environmental Law Review","volume":"93 1","pages":"33"},"PeriodicalIF":1.3,"publicationDate":"2001-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79432111","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Melding Civil Rights and Environmentalism: Finding Environmental Justice's Place in Environmental Regulation","authors":"Tseming Yang","doi":"10.2139/SSRN.285000","DOIUrl":"https://doi.org/10.2139/SSRN.285000","url":null,"abstract":"As one of the defining issues in environmental regulation over the past decade, the environmental justice movement has sought to bring civil rights and broader social justice issues to the forefront of environmental protection. The movement's challenge to traditional environmental regulation has distinguished itself because it has come from another group of political liberals rather than conservatives. Its goals remain largely unrealized, however, even though concerns about race and distributional equity in environmental protection are unlikely to go away. As explanations for this lack of success, scholars have pointed to specific legal doctrines as well as larger issues of lack of political power. Unfortunately, such accounts ignore the genuine concern and sincere efforts of many environmentalists and regulators in regard to these issues and the structural obstacles impeding attempts to change the environmental regulatory system. This essay seeks to provide a better understanding of these difficulties by examining the paradigms that civil rights law and environmental law have been based upon. A close analysis of Brown v. Board of Education, the foundational model for modern civil rights law, and the conceptions of environmental degradation put forth by Garrett Hardin's Tragedy of the Commons and Rachel Carson's Silent Spring illustrates the contrasting structures, methodologies, and value premises of civil rights and environmental law. They provide important insights into the debate about the environmental justice movement and the difficulties that environmental regulators have encountered in addressing distributional equity and fairness concerns much more broadly. Efforts by environmental regulators to address the concerns of the environmental justice movement are unlikely to succeed without measures addressing these deeper-lying tensions.","PeriodicalId":45668,"journal":{"name":"Harvard Environmental Law Review","volume":"30 1","pages":"1"},"PeriodicalIF":1.3,"publicationDate":"2001-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84131564","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}