Taking Slippage Seriously: Noncompliance and Creative Compliance in Environmental Law

Legal scholars have focused their attention on regulatory standards. Less attention has been given to the inevitable "slippage" between the standards and the ensuing implementation. This essay presents an alternate view that highlights the slippage. Part I discusses two forms of slippage. "Negative" slippage is a ubiquitous feature of environmental law: something that is legally mandated simply fails to happen. "Affirmative" slippage is more interesting: the required standards are renegotiated rather than ignored, resulting in a regulatory regime that may bear little resemblance to the "law on the books." Part II explores how the concept of slippage might inform discussions of legal doctrine, environmental policy, and environmental pedagogy. It turns out that the Supreme Court has had a certain degree of complicity in the creation of slippage. Slippage also has implications for policy debates over environmental standards. If standards are not automatically translated into compliance, our understanding of their costs and benefits may shift. Finally, in terms of teaching, we need to devote more attention to compliance-related issues.