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Articles 31 - 60 of 63
Full-Text Articles in Law
The Effect Of Allowing Pollution Offsets With Imperfect Enforcement, Hilary A. Sigman, Howard F. Chang
The Effect Of Allowing Pollution Offsets With Imperfect Enforcement, Hilary A. Sigman, Howard F. Chang
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Several pollution control regimes, including climate change policies, allow polluters in one sector subject to an emissions cap to offset excessive emissions in that sector with pollution abatement in another sector. The government may often find it more costly to verify offset claims than to verify compliance with emissions caps, and concerns about difficulties in enforcement may lead regulators to restrict the use of offsets. In this paper, we demonstrate that allowing offsets may increase pollution abatement and reduce illegal pollution, even if the government has a fixed enforcement budget. We explore the circumstances that may make it preferable to …
Global Warming Advocacy Science: A Cross Examination, Jason S. Johnston
Global Warming Advocacy Science: A Cross Examination, Jason S. Johnston
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Legal scholarship has come to accept as true the various pronouncements of the Intergovernmental Panel on Climate Change (IPCC) and other scientists who have been active in the movement for greenhouse gas (ghg) emission reductions to combat global warming. The only criticism that legal scholars have had of the story told by this group of activist scientists – what may be called the climate establishment – is that it is too conservative in not paying enough attention to possible catastrophic harm from potentially very high temperature increases. This paper departs from such faith in the climate establishment by comparing the …
Presidential Control Of Administrative Agencies: A Debate Over Law Or Politics?, Cary Coglianese
Presidential Control Of Administrative Agencies: A Debate Over Law Or Politics?, Cary Coglianese
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Recent controversy over the unitary executive may be part of what Steven Calabresi and Christopher Yoo have called the “oldest debate in constitutional law.” Yet in this essay, I ask whether this debate is as much legal as it is political. Focusing on the Environmental Protection Agency’s decision to grant California a waiver from national automobile emissions standards, I contrast the divergent reactions to presidential influence under President Bush and President Obama. In both administrations the EPA faced clear presidential pressure, but critics of President Bush’s involvement generally applauded the actions taken by President Obama. The main difference appears to …
The Environment And Climate Change: Is International Migration Part Of The Problem Or Part Of The Solution?, Howard F. Chang
The Environment And Climate Change: Is International Migration Part Of The Problem Or Part Of The Solution?, Howard F. Chang
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No abstract provided.
Problems Of Equity And Efficiency In The Design Of International Greenhouse Gas Cap-And-Trade Schemes, Jason S. Johnston
Problems Of Equity And Efficiency In The Design Of International Greenhouse Gas Cap-And-Trade Schemes, Jason S. Johnston
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This article argues that international greenhouse gas (GHG) cap-and-trade schemes suffer from inherent problems of enforceability and verifiability that both cause significant inefficiencies and create inevitable tradeoffs between equity and efficiency. A standard result in the economic analysis of international GHG cap and trade schemes is that an allocation of initial permits that favors poor, developing countries (making such countries net sellers in equilibrium) may be necessary not only to further redistributive goals but also the efficiency of the GHG cap and trade scheme. This coincidence of equity and efficiency is, however, unlikely to be realized under more realistic assumptions …
The Law And Economics Of Environmental Federalism: Europe And The United States Compared, Michael G. Faure, Jason S. Johnston
The Law And Economics Of Environmental Federalism: Europe And The United States Compared, Michael G. Faure, Jason S. Johnston
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This article describes the evolution and key features of the centralized environmental regulatory systems that emerged in the United States and Europe during the latter half of the twentieth century. It applies insights from the positive economic analysis of regulatory centralization in an attempt to explain a striking paradox found in both the European and American centralized environmental regulatory regimes: the fact that in both systems, centralized environmental regulation has been adopted not as a solution for transboundary pollution (interjursidictional externalities), but rather for pollution that is primarily local. The paper develops a positive account that explains the tendency of …
Climate Change Confusion And The Supreme Court: The Misguided Regulation Of Greenhouse Gas Emissions Under The Clean Air Act, Jason S. Johnston
Climate Change Confusion And The Supreme Court: The Misguided Regulation Of Greenhouse Gas Emissions Under The Clean Air Act, Jason S. Johnston
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In the spring of 2007, the U.S. Supreme Court ruled in Massachusetts v. EPA that the U.S. Environmental Protection Agency (EPA) must promulgate automobile tailpipe greenhouse gas emission standards under Section 202 of the Clean Air Act (CAA). American environmentalists hailed the Supreme Court's decision as an important victory in the battle to curb global warming. This article argues to the contrary that: 1) a large body of economic work demonstrates that the likely geographic and temporal pattern of costs and benefits to the U.S. from climate change bears no resemblance to the pollution problems that Congress intended to deal …
Policymaking Under Pressure: The Perils Of Incremental Responses To Climate Change, Cary Coglianese, Jocelyn D’Ambrosio
Policymaking Under Pressure: The Perils Of Incremental Responses To Climate Change, Cary Coglianese, Jocelyn D’Ambrosio
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Federal policymakers’ reluctance to enact a comprehensive climate change policy during the past decade has coincided with increased awareness of the inevitability and severity of the problems from global climate change. Thus, it is no surprise that piecemeal, sub-federal policies have garnered considerable support. Bolstered by the political science literature on the promise of incrementalism and democratic experimentalism, many proponents of climate change action favor incremental steps in the hope that they will improve the environment or at least serve as a basis for more comprehensive policies. Against this hopeful view, we explain why ad hoc responses to climate change …
Risk Equity: A New Proposal, Matthew D. Adler
Risk Equity: A New Proposal, Matthew D. Adler
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What does distributive justice require of risk regulators? Various executive orders enjoin health and safety regulators to take account of “distributive impacts,” “equity,” or “environmental justice,” and many scholars endorse these requirements. But concrete methodologies for evaluating the equity effects of risk regulation policies remain undeveloped. The contrast with cost-benefit analysis--now a very well developed set of techniques --is stark. Equity analysis by governmental agencies that regulate health and safety risks, at least in the United States, lacks rigor and structure. This Article proposes a rigorous framework for risk-equity analysis, which I term “probabilistic population profile analysis” (PPPA). PPPA is …
Reconfiguring Property In Three Dimensions, Abraham Bell, Gideon Parchomovsky
Reconfiguring Property In Three Dimensions, Abraham Bell, Gideon Parchomovsky
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In this Article, we demonstrate that every property question invariably involves three distinct dimensions: (1) the number of owners, (2) the scope of owner’s dominion and (3) asset configuration. Furthermore, we claim that the interplay among the three dimensions shapes the field of property and holds the key to understanding the deep structure of property law. On this view, property law is a balancing act that requires policymakers and private actors to constantly juggle the often-conflicting demands lying along these three dimensions. The three-dimensional account of property we develop in this Article has important descriptive and normative implications. Descriptively, we …
The Managerial Turn In Environmental Policy, Cary Coglianese
The Managerial Turn In Environmental Policy, Cary Coglianese
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No abstract provided.
Debate: Collaborative Environmental Law: Pro And Con, Eric W. Orts, Cary Coglianese
Debate: Collaborative Environmental Law: Pro And Con, Eric W. Orts, Cary Coglianese
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In this thoughtful and intricate cross-disciplinary debate, Professors Eric W. Orts, of Penn’s Wharton School, and Cary Coglianese, of Penn’s Law School, discuss the benefits and disadvantages of collaborative public policy decision making in the environmental context. It is no exaggeration to say that each year the world grows ever more aware of the nature of the environmental problems we face, and yet critical policy solutions continue to remain beyond the grasp of even the most interested parties. Professor Orts argues that it is time to embrace a different policymaking approach—that of collaborative environmental lawmaking. He argues that "the view …
The Effect Of Joint And Several Liability Under Superfund On Brownfields, Howard F. Chang, Hilary A. Sigman
The Effect Of Joint And Several Liability Under Superfund On Brownfields, Howard F. Chang, Hilary A. Sigman
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In response to claims that the threat of environmental liability under the Superfund law deters the acquisition of potentially contaminated sites (or "brownfields") for redevelopment, the federal government has adopted programs to protect purchasers from liability. This protection may be unwarranted, however, if sellers can simply adjust property prices downward to compensate buyers for this liability. We present a model of joint and several liability under Superfund that allows us to distinguish four different reasons that this liability may discourage the purchase of brownfields. The previous literature has overlooked the effects that we identify, which all arise because a sale …
Fashioning Entitlements: A Comparative Law And Economic Analysis Of The Judicial Role In Environmental Centralization In The U.S. And Europe, Jason S. Johnston, Michael G. Faure
Fashioning Entitlements: A Comparative Law And Economic Analysis Of The Judicial Role In Environmental Centralization In The U.S. And Europe, Jason S. Johnston, Michael G. Faure
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This paper identifies and evaluates, from an economic point of view, the role of the judiciary the steady shift of environmental regulatory authority to higher, more centralized levels of government in both the U.S. and Europe. We supply both a positive analysis of how the decisions made by judges have affected the incentives of both private and public actors to pollute the natural environment, and normative answers to the question of whether judges have acted so as to create incentives that move levels of pollution in an efficient direction, toward their optimal, cost-minimizing (or net-benefit-maximizing) levels. Highlights of the analysis …
Reasonable Emissions Of Greenhouse Gases: Efficient Abatement For A Stock Pollutant, Howard F. Chang
Reasonable Emissions Of Greenhouse Gases: Efficient Abatement For A Stock Pollutant, Howard F. Chang
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No abstract provided.
Policy Analysis For Natural Hazards: Some Cautionary Lessons From Environmental Policy Analysis, Matthew D. Adler
Policy Analysis For Natural Hazards: Some Cautionary Lessons From Environmental Policy Analysis, Matthew D. Adler
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How should agencies and legislatures evaluate possible policies to mitigate the impacts of earthquakes, floods, hurricanes and other natural hazards? In particular, should governmental bodies adopt the sorts of policy-analytic and risk assessment techniques that are widely used in the area of environmental hazards (chemical toxins and radiation)? Environmental hazards policy analysis regularly employs proxy tests, in particular tests of technological “feasibility,” rather than focusing on a policy’s impact on well-being. When human welfare does enter the analysis, particular aspects of well-being, such as health and safety, are often given priority over others. “Individual risk” tests and other features of …
Management-Based Strategies For Improving Private Sector Environmental Performance, Cary Coglianese, Jennifer Nash
Management-Based Strategies For Improving Private Sector Environmental Performance, Cary Coglianese, Jennifer Nash
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Improvements in environmental quality depend in large measure on changes in private sector management. In recognition of this fact, government and industry have begun in recent years to focus directly on shaping the internal management practices of private firms. New management-based strategies can take many forms, but unlike conventional regulatory approaches they are linked by their distinctive focus on management practices, rather than on environmental technologies or emissions targets. This article offers the first sustained analysis of both public and private sector initiatives designed specifically to improve firms' environmental management. Synthesizing the results of a conference of leading scholars and …
Tradable Pollution Permits And The Regulatory Game, Jason S. Johnston
Tradable Pollution Permits And The Regulatory Game, Jason S. Johnston
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This paper analyzes polluters' incentives to move from a traditional command and control (CAC) environmental regulatory regime to a tradable permits (TPP) regime. Existing work in environmental economics does not model how firms contest and bargain over actual regulatory implementation in CAC regimes, and therefore fail to compare TPP regimes with any CAC regime that is actually observed. This paper models CAC environmental regulation as a bargaining game over pollution entitlements. Using a reduced form model of the regulatory contest, it shows that CAC regulatory bargaining likely generates a regulatory status quo under which firms with the highest compliance costs …
The Promise And Limits Of Voluntary Management - Based Regulatory Reform: An Analysis Of Epa's Strategic Goals Program, Jason S. Johnston
The Promise And Limits Of Voluntary Management - Based Regulatory Reform: An Analysis Of Epa's Strategic Goals Program, Jason S. Johnston
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This paper presents a case study of a voluntary environmental program initiated by the U.S. EPA in the late 1990's, the Strategic Goals Program (SGP). This program was intended to create incentives for job shop metal finishers, an industry of small and medium sized enterprises, to improve and even go beyond compliance with existing federal regulations by investing in pollution prevention. The SGP's incentives included direct technical assistance and limited financial assistance, but the primary carrot it offered participants was more flexible regulatory treatment by state and local regulators. Although SGP clearly helped some firms discover ways to both cut …
Signaling Social Responsibility: On The Law And Economics Of Market Incentives For Corporate Environmental Performance, Jason S. Johnston
Signaling Social Responsibility: On The Law And Economics Of Market Incentives For Corporate Environmental Performance, Jason S. Johnston
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This article analyzes the law and economics of market internalization: the capability of markets to both penalize and reward firms for their environmental, health and safety performance. As for market sticks, the article maintains that market transactions - both private and public sales of corporate assets as well as transactions in publicly traded securities - are an important avenue through which firms realize comparative advantages in regulatory compliance, and that such transactions have the potential to significantly enhance corporate environmental and social performance. Asset transactions tend to drive environmental cleanup and transfer assets to firms that are better able to …
The Rule Of Capture And The Economic Dynamics Of Natural Resource Use And Survival Under Open Access Management Regimes, Jason S. Johnston
The Rule Of Capture And The Economic Dynamics Of Natural Resource Use And Survival Under Open Access Management Regimes, Jason S. Johnston
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By reviewing the bioeconomic dynamics of natural resource harvest under open access/rule of capture management, this article demonstrates the falsity of the widely held contemporary view that market incentives lead to unsustainable natural resource use. The formal bioeconomic models teach that it is the relative speed of market versus natural dynamics that determines when and if open access harvest leads to resource collapse. If the rate at which harvesters exit from the harvest industry when harvests are low is rapid relative to the natural rate of growth in the harvested stock, the level of both the resource stock and harvest …
Environmental Trade Measures, The Shrimp-Turtle Rulings, And The Ordinary Meaning Of The Text Of The Gatt, Howard F. Chang
Environmental Trade Measures, The Shrimp-Turtle Rulings, And The Ordinary Meaning Of The Text Of The Gatt, Howard F. Chang
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No abstract provided.
Evaluating Environmental Policies, Lori Snyder Bennear, Cary Coglianese
Evaluating Environmental Policies, Lori Snyder Bennear, Cary Coglianese
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For too long, environmental policymaking has relied on trial and error, without adequate or systematic learning from either the trials or the errors. Systematic program evaluation research has been remarkably scarce relative to the overall number of environmental policies adopted in the United States, as well as relative to the amount of evaluation research found in other fields, such as medicine, education, or transportation safety. This paper examines the role that program evaluation should play in environmental policy making, distinguishing such research from other types of analysis, including risk assessment, cost-effectiveness analysis, and cost-benefit analysis. It explains the kinds of …
Shifting Sands: The Limits Of Science In Setting Risk Standards, Cary Coglianese, Gary E. Marchant
Shifting Sands: The Limits Of Science In Setting Risk Standards, Cary Coglianese, Gary E. Marchant
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Regulators need to rely on science to understand problems and predict the consequences of regulatory actions, but over reliance on science can actually contribute to, or at least deflect attention from, incoherent policymaking. In this article, we explore the problems with using science to justify policy decisions by analyzing the Environmental Protection Agency's recently revised air quality standards for ground-level ozone and particulate matter, some of the most significant regulations ever issued. In revising these standards, EPA mistakenly invoked science as the exclusive basis for its decisions and deflected attention from a remarkable series of inconsistencies. For example, even though …
The Epa's Risky Reasoning, Cary Coglianese, Gary E. Marchant
The Epa's Risky Reasoning, Cary Coglianese, Gary E. Marchant
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Regulators must rely on science to understand problems and predict the consequences of regulatory actions, but science by itself cannot justify public policy decisions. We review the Environmental Protection Agency's efforts to justify recent changes to its National Ambient Air Quality Standards (NAAQS) for ozone and particulate matter, showing how the agency was able to cloak its policy judgments under the guise of scientific objectivity. By doing so, the EPA evaded accountability for a shifting and incoherent set of policy positions that will have major implications for public health and the economy. For example, even though EPA claimed to base …
Selling Mayberry: Communities And Individuals In Law And Economics, Gideon Parchomovsky, Peter Siegelman
Selling Mayberry: Communities And Individuals In Law And Economics, Gideon Parchomovsky, Peter Siegelman
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The small village of Cheshire, Ohio was recently acquired in its entirety by the firm whose giant power plant, located at the edge of town, caused it serious pollution problems. Although the plant was worth substantially more than the town, this was not a simple Coasean bargain. This paper combines an ethnographic methodology with theoretical insights from law and economics to present an empirical and theoretic challenge to the standard account of nuisance disputes. We explore the transaction in detail and explain what prevented collective action and holdout problems that are usually thought to hinder bargaining with groups. Specifically, we …
Building Sector-Based Consensus: A Review Of The Epa's Common Sense Initiative, Cary Coglianese, Laurie K. Allen
Building Sector-Based Consensus: A Review Of The Epa's Common Sense Initiative, Cary Coglianese, Laurie K. Allen
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In the late 1990s, the U.S. Environmental Protection Agency (EPA) conducted what the agency considered to be a "bold experiment" in regulatory reinvention, bringing representatives from six industrial sectors together with government officials and NGO representatives to forge a consensus on innovations in public policy and business practices. This paper assesses the impact of the agency's "experiment" - called the Common Sense Initiative (CSI) - in terms of the agency's goals of improving regulatory performance and technological innovation. Based on a review of CSI projects across all six sectors, the paper shows how EPA achieved, at best, quite modest accomplishments. …
Performance-Based Regulation: Prospects And Limitations In Health, Safety And Environmental Protection, Cary Coglianese, Jennifer Nash
Performance-Based Regulation: Prospects And Limitations In Health, Safety And Environmental Protection, Cary Coglianese, Jennifer Nash
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Regulation aims to improve the performance of individual and organizational behavior in ways that reduce social harms, whether by improving industry's environmental performance, increasing the safety of transportation systems, or reducing workplace risk. With this in mind, the phrase "performance-based regulation" might seem a bit redundant, since all regulation should aim to improve performance in ways that advance social goals. Yet regulators can direct those they govern to improve their performance in at least two basic ways. They can prescribe exactly what actions regulated entities must take to improve their performance. Or they can incorporate the regulation's goal into the …
Incentives To Settle Under Joint And Several Liability: An Empirical Analysis Of Superfund Litigation, Howard F. Chang, Hilary Sigman
Incentives To Settle Under Joint And Several Liability: An Empirical Analysis Of Superfund Litigation, Howard F. Chang, Hilary Sigman
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Congress may soon restrict joint and several liability for cleanup of contaminated sites under Superfund. We explore whether this change would discourage settlements and is therefore likely to increase the program 's already high litigation costs per site. Recent theoretical research by Kornhauser and Revesz finds that joint and several liability may either encourage or discourage settlement, depending on the correlation of outcomes at trial across defendants. We extend their two-defendant model to a richer framework with N defendants. This extension allows us to test the theoretical model empirically using data on Superfund litigation. We find that joint and several …
Toward A Greener Gatt: Environmental Trade Measures And The Shrimp-Turtle Case, Howard F. Chang
Toward A Greener Gatt: Environmental Trade Measures And The Shrimp-Turtle Case, Howard F. Chang
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No abstract provided.