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"Glicksman, Robert L"
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Protecting the Public Health with the Inflation Reduction Act — Provisions Affecting Climate Change and Its Health Effects
Public Health and the Inflation Reduction ActThe Inflation Reduction Act, the most significant measure adopted by Congress to combat climate change, is likely to play an important role in mitigating the adverse health effects of climate change.
Journal Article
THE ADMINISTRATIVE LAW OF REGULATORY SLOP AND STRATEGY
Judicial review of agency behavior is often criticized as either interfering too much with agencies’ domains or doing too little to ensure fidelity to statutory directives and the rule of law. But the Trump administration has produced an unprecedented volume of agency actions that blatantly flout settled administrative-law doctrine. This phenomenon, which we term “regulatory slop,” requires courts to reinforce the norms of administrative law by adhering to established doctrine and paying careful attention to remedial options. In this Article, we document numerous examples of regulatory slop and canvass how the Trump agencies have fared in court thus far. We contend that traditional critiques of judicial review carry little force in such circumstances. Further, regulatory slop should be of concern regardless of one’s political leanings because it threatens the rule of law. Rather than argue for a change to substantive administrative-law doctrine, therefore, we take a close look at courts’ remedial options in such circumstances. We conclude that a strong approach to remedies can send corrective signals to agencies that reinforce both administrative-law values and the rule of law.
Journal Article
Adverse Health Effects of Energy-Related Provisions in the “One Big Beautiful Bill”
The “One Big Beautiful Bill Act” will dramatically increase U.S. greenhouse-gas emissions, along with all their known adverse health consequences.
Journal Article
Pollution limits and polluters' efforts to comply : the role of government monitoring and enforcement
This book integrates economics and legal perspectives to examine the impact of government strategies for monitoring and enforcing environmental protection laws. It closely examines industrial facilities' compliance with regulatory obligations stemming from the implementation of the Clean Water Act (CWA) to explore the success of policies such as this.
eBook
In Praise of Dan Mandelker's NEPA Wisdom
\"8 NEPA is designed to ensure that federal agencies \"stop and think\" about the potential impacts of their decisions on the natural environment and publicly disclose the results of those deliberations.9 The statute's principal mandate is the obligation of every federal agency to prepare an environmental impact statement (EIS) to accompany a proposal for \"major Federal actions significantly affecting the quality of the human environment. The Council on Environmental Quality (CEQ), which NEPA created to oversee implementation of the statute by other federal agencies,12 has credited the Act with playing an important role in improving the environmental performance of the federal government. \"16 He interpreted two then-recent Supreme Court decisions,17 notwithstanding the defeats they handed to environmental public interest litigants, as \"a clear endorsement of [NEPA's] objectives and purposes,\" and as a caution to courts \"to take their judicial review powers seriously. \"22 The next year, as part of a symposium held at the Washington University School of Law on New Directions in Environmental Law, Mandelker offered a somewhat more sobering assessment of NEPA.23 He pointed out that the recognition that environmental systems are \"complex, dynamic, nonlinear, and mutually [interdependent]\" made the process of environmental prediction that is at NEPA's core more difficult than its framers had anticipated.24 He added that \"[a] statute and its regulations that assumed a more predictive and less complicated environment do not work well in an environment that has multiple ecological dimensions where change is not easily measured.
Journal Article
Strategies in and outcomes of climate change litigation in the United States
The courts have played a central role in climate policy, including the landmark Supreme Court case that led to the mandatory regulation of greenhouse gases by the United States. A wide variety of litigants have used the courts to affect policy outcomes at all scales. Therefore, to understand how the court addresses climate change is critical. Here we constructed and analysed a database of all the United State domestic climate lawsuits 1990–2016 (873), and collected qualitative data in the form of 78 in-depth interviews with litigants, involved scientists and advocates. We find proregulation litigants tend to win renewable energy and energy efficiency cases, and more frequently lose coal-fired power plant cases. Strategies such as the use of climate science and other science as well as collaboration in specific types of coalitions affect the outcomes of cases. Efforts to affect climate policy should consider these trends and outcomes.
Journal Article
Science in litigation, the third branch of U.S. climate policy
The context and role of climate science in court are changing Whereas the executive and legislative branches are the principal repositories of policy-making authority in the United States, decisions in the judicial branch have and promise to continue having an influence on activities responsible for greenhouse gas (GHG) emissions, energy development, and a wide range of other government policy. The courts are a central avenue for development of climate-related policy in the United States. Yet we know few details about whether and how climate science plays a role in such judicial responses. We suggest that the role of science is changing, that novel legal theories are emerging, and that litigation is likely to continue to increase.
Journal Article
Technological Innovation, Data Analytics, and Environmental Enforcement
Technical innovation is ubiquitous in contemporary society and contributes to its extraordinarily dynamic character. Sometimes these innovations have significant effects on the environment or on human health. They may also stimulate efforts to develop second-order technologies to ameliorate those effects. The development of the automobile and its impact on life in the United States and throughout the world is an example. The story of modern environmental regulation more generally includes chapters filled with examples of similar efforts to respond to an enormous array of technological advances. This Article uses a different lens to consider the role of technological innovation. In particular, it considers how technological advances have the potential to shape governance efforts in the compliance realm. The Article demonstrates that such technological advances—especially new and improved monitoring capacity, advances in information dissemination through e- reporting and other techniques, and improved capacity to analyze information—have significant potential to transform governance efforts to promote compliance. Such transformation is likely to affect not only the \"how\" of compliance promotion, but also the \"who\"—who is involved in promoting compliance. Technological innovation is likely to contribute to new thinking about the roles key actors can and should play in promoting compliance with legal norms. The Article discusses some of the potential benefits of these types of technological innovation in the context of the Environmental Protection Agency's ongoing efforts to improve its compliance efforts by taking advantage of emerging technologies. We also identify some of the pitfalls or challenges that agencies such as the Environmental Protection Agency need to be aware of in opening this emerging bundle of new tools and making use of them to address real-world environmental needs.
Journal Article
Agency-Specific Precedents
In their recent work on an administrative law casebook, the authors observed a phenomenon that they refer to in this article as \"agency-specific precedents.\" Their central thesis is that agency-specific precedents are a manifestation of the \"silo effect.\" The discussion proceeds in four parts. Part I provides general background on the emergence of administrative law as a body of general law applicable to agencies and introduces the concept of the silo effect. Part II presents five case studies of agency-specific precedents involving different agencies and different administrative law doctrines. Part III argues that agency-specific precedents are a manifestation of the silo effect and discusses how the dynamics of information costs, the specialized bar, and the process of judicial review tend to produce that effect. Finally, Part IV considers the normative aspects of agency-specific precedents, concluding that greater attention to the phenomenon by practitioners, courts, and scholars would help to break down undesirable agency-specific precedential silos.
Journal Article