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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.

This Article explores possible insights from the \"procedural justice\" literature about features of government decision making processes that citizens are likely to consider to be particularly valuable or important. Numerous commentators have urged that the government take steps to increase citizen participation in its decision making processes as a way to offset concerns about government legitimacy. The premise of the Article is that incorporating into government decision making processes features that are important to citizens is a potentially helpful step in fostering meaningful citizen participation. Processes that citizens value are more likely to be processes that citizens use and that enhance citizen confidence in government, while processes with features that citizens find unsatisfactory are more likely to be processes that do not engender meaningful citizen input; they may even operate to undermine citizen confidence. This Article reviews a framework that the procedural justice literature proposes for assessing citizen satisfaction with decision making processes, and it applies this framework to an international decision making process that relies heavily on citizen participation, the Commission for Environmental Cooperation's (CEC) citizen submissions process. This process, which empowers citizens to file complaints in which they claim that any of the North American countries is failing to effectively enforce one or more of its environmental laws, was created with the hope that it would increase government accountability and transparency, and inform and thereby improve the exercise of agency discretion. This Article considers the track record of the process in light of the procedural justice literature in an effort to advance thinking about the design of government decision making processes that are intended to promote meaningful public participation.

The articles in this volume represent the work of a range of scholars with a diverse set of perspectives about the challenges posed by climate change and the roles that land use and energy law can play in addressing these challenges. super(1) These challenges are daunting and have spawned an enormous literature, indeed many literatures. super(2) 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 super(3).

The NAFTA Environmental Commission's citizen petition process is an important experiment in \"new governance\" because of its emphasis on citizen participation, accountability, and transparency as strategies to enhance government legitimacy and improve government performance. Its focus on promoting compliance and enforcement adds to its importance for those interested in those central aspects of the regulatory process. The procedure has had a rocky start in many respects, although there are signs that in some cases it has had a positive impact. This Article sets forth what we perceive to be the promise of the process, the pitfalls that have undermined its effectiveness to date, and adjustments that would equip it to make a meaningful contribution to North American environmental governance. More generally, the Article provides a framework for evaluating such citizen petition processes and explains how lessons from an analysis of the North American procedure may contribute to assessments of the design and implementation of similar mechanisms in other international and domestic legal regimes. [PUBLICATION ABSTRACT]

This article explores the potential value of environmental enforcement for protecting ecosystems and the services they provide. The article focuses primarily on the remedial (rather than the liability) side of enforcement, in particular on three specific types of relief available through the enforcement process: penalties, injunctive relief, and Supplemental Environmental Projects (SEPs). I suggest that, theoretically, there are at least five ways in which enforcement has the potential to protect ecosystems and their services. First, enforcement has the potential to prevent harm to ecosystems by deterring violations that would cause such harm. Second, enforcement has the capacity to require violators to cease violations that are causing or threatening harm. Third, in some cases enforcement includes authority to require violators to fix ecosystems they have harmed (to restore or remediate harmed ecosystems). Fourth, EPA can use enforcement to negotiate settlements that commit violators to take action to benefit ecosystems in circumstances in which EPA otherwise lacks the legal authority to compel performance of such projects or to undertake them itself (to achieve ecosystem protection \"beyond compliance\"). Finally, through each of these four strategies enforcement has the capacity to protect ecosystems and their services by advancing learning about such ecosystems and their services—by advancing knowledge, for example, about the state of ecosystems, threats to them, and how best to protect them from such threats and to restore them if they have been degraded. The article explores the promise of each of the three above-referenced enforcement tools for protecting ecosystems and their services in one or more of these five ways.

The plaintiffs in Alec L. v. Jackson asked the U.S. District Court for the District of Columbia to hold that the atmosphere is a public trust resource; that the United States government, as a trustee, has a fiduciary duty to protect that resource; and that the defendants have violated their fiduciary duties by \"contributing to and allowing unsafe amounts of greenhouse gas emissions in to the atmosphere.\"The U.S. Court of Appeals for the D.C. Circuit affirmed the district court's decision to dismiss plaintiffs' claims that the doctrine imposes duties on the federal government and that \"the defendants ha[d] abdicated their trust duty to protect the atmosphere from irreparable harm\" by failing to reduce global atmospheric carbon dioxide levels to less than 350 parts per million during the century.[...]the fate of the litigation remains uncertain.

Professor Markell analyzes how the proposed Superfund Reform Act fails to implement the Administration's \"Reinventing Government\" principles and offers constructive modifications to minimize redundancy, empower personnel, and encourage creativity.

This article reviews key features of a November 2012 US Environmental Protection Agency (EPA) Memorandum entitled securing Mitigation as Injunctive Relief in Certain Civil Enforcement settlements. The agency issued the Memorandum for the purpose of \"strongly encouraging EPA enforcement personnel to seek mitigation, where appropriate, as a component of the injunctive relief they seek in civil judicial enforcement cases\". Implementation of the Mitigation Memorandum coincides with an agency effort to more fundamentally reconsider its approach to compliance promotion, which EPA calls its Next Generation Compliance Initiative and characterizes as a \"new paradigm\" for promoting compliance. As EPA revisits its approach to improving compliance more generally, the Mitigation Memorandum offers insights into EPA's strategies for pursuing formal enforcement, including civil judicial cases.