Law Commons^™

Delegated Agency Authority To Address Chemicals Of Emerging Concern: Epa’S Strategic Use Of Emergency Powers To Address Pfas Air Pollution, Robert L. Glicksman, Johanna Adashek

GW Law Faculty Publications & Other Works

PFAS are a class of chemicals that pose some of the most serious and multifaceted health and environmental threats of the past century. Manufactured since the 1940s, used in everyday products from non-stick cookware, to fire-fighting foams, to makeup and shaving cream, and found in even the most remote parts of the world, PFAS are ubiquitous. The most thoroughly-studied PFAS have demonstrable serious health effects that include reproductive and developmental dysfunctions, interference with the body’s hormonal and immune systems, suppression of vaccine responsiveness, and links to various types of cancers. In response to scientists’ identification of the multitude of health …

Judicial Review Of Scientific Uncertainty In Climate Change Lawsuits: Deferential And Nondeferential Evaluation Of Agency Factual And Policy Determinations, Robert L. Glicksman, Daniel Kim, Keziah Groth-Tuft

GW Law Faculty Publications & Other Works

Scientific determinations are often at the heart of environmental disputes. When those disputes take the form of litigation, the courts may be called on to determine whether an administrative agency’s treatment of the science warrants deference. For several reasons, judges are inclined to apply deferential review to agency factual and policy science-based determinations. Most judges are not trained in the language and methods of science. They may be reluctant to intervene on matters on which their lack of expertise risks producing uninformed judgments. If a statute delegates to an agency the responsibility of making those determinations, courts may be loath …

Extent Of Cooperative Enforcement: Effect Of The Regulator-Regulated Facility Relationship On Audit Frequency, Dietrich Earnhart, Robert L. Glicksman

GW Law Faculty Publications & Other Works

A spirited debate explores the comparative merits of two different approaches to the enforcement of environmental law: the noncooperative approach, which emphasizes the deterrence of noncompliance through inflexibly imposed sanctions, and the cooperative approach, which emphasizes the inducement of compliance through flexibility and assistance. Both scholarly and policymaking communities are interested in this topic of enforcement approach within the realms of finance, tax compliance, occupational safety, food and drug safety, consumer product safety, and environmental protection, among others. To inform this debate, our study explores enforcement of environmental protection laws where the debate has been especially spirited yet lacking in …

Debunking Revisionist Understandings Of Environmental Cooperative Federalism: Collective Action Responses To Air Pollution, Jessica Wentz

GW Law Faculty Publications & Other Works

The federal Clean Air Act initiated Congress's venture into cooperative environmental federalism in 1970. Forty-five years later, misconceptions about the nature of that venture (and similar examples of cooperative federalism under other federal environmental statutes) persist. In particular, some recent judicial decisions characterize environmental cooperative federalism as an equal partnership between the federal Environmental Protection Agency and the states. They also take umbrage at efforts by EPA to override state policies and initiatives that fail to conform to the minimum responsibilities that the statutes impose on the states, characterizing them as unlawful affronts to state sovereignty.

This chapter argues that …

Using Law And Equity For Poor And The Environment, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This chapter discusses ways of overcoming “adaptation apartheid,” a term used to describe the differences in reactions to environmental disasters between poor and wealthy people and countries. The chapter focuses on “environmental protection and poverty alleviation.” The first section describes the connections between poverty and environmental damage, and the second section discusses distributive justice, defined as “an ethical imperative based on the notion of moral reciprocity.” Third, the chapter lists the sources of law pertaining to environmental justice, including private law, regulation, market mechanisms, and rights-based approaches. The chapter concludes by noting the advantages and challenges to a rights-based approach …

Human Rights And The Environment: Substantive Rights, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This chapter focuses on the relationship between human rights and the environment. The chapter describes multiple sources of human rights and environmental obligations, including international treaties, national law, and the judicial decisions of international courts. Human rights that indirectly call for environmental conservatism include the rights to life, health, privacy, and standard of living. This chapter concludes by noting that governments must balance human rights related to the environment with other concerns such as economic advancement.

Comments On The Normative Challenge Of Environmental “Soft Law”, Dinah L. Shelton

GW Law Faculty Publications & Other Works

This paper describes the increased presence of non-binding soft law in international environmental law and begins by listing the possible uses of a “non-binding normative instrument.” Next, the paper describes the relationship between soft law and customary international law and notes that soft law may result in subsequent codification of those principles or interpret existing treaty obligations. The paper then contemplates why states are utilizing soft law in international environmental law and discusses issues regarding compliance with non-binding soft law. The paper concludes that the complicated nature of the international system prevents a prediction of the extent to which states …

Environmental Protection And Human Rights, Dinah L. Shelton, Donald K. Anton

GW Law Faculty Publications & Other Works

This book concentrates on the relationship between human rights and the environment. The first chapter provides the framework for the book’s analysis and begins by defining “environment” and noting recent changes to environmental conditions and their causes, such as reduced biodiversity and increased population and resource consumption. The first portion of the chapter concludes by suggesting actions such as removing financial incentives for over-consumption of limited economic resources, that could improve the current environmental trends.

Reviewing Carbon Changes And Free Allowances Under Environmental Law, Steve Charnovitz

GW Law Faculty Publications & Other Works

This article analyzes the American Clean Energy and Security Act under international environmental law and standards. The Act requires that importers pay a fee if certain requirements regarding the country and sector are satisfied. The article presents general difficulties with enforcing international environmental law, namely, the absence of a unitary government. Next, the article describes the following sources of international law: custom, treaties, soft law, and non-binding declarations. I conclude that the carbon tariffs from the American Clean Energy and Security Act are inconsistent with both hard and soft international environmental law.

Coal-Fired Power Plants, Greenhouse Gases, And State Statutory Substantial Endangerment Provisions: Climate Change Comes To Kansas, Robert L. Glicksman

GW Law Faculty Publications & Other Works

State legislatures and environmental agencies have taken the lead in combating climate change, in the absence of leadership by the federal government. The most widely publicized efforts have involved the imposition of emission controls and fuel economy standards on motor vehicles by states such as California. But the states have also targeted stationary sources of greenhouse gases. In particular, they have sought to minimize carbon dioxide emissions from coal-fired power plants. States have used different approaches to reducing greenhouse gas emissions from electric utilities, including the adoption of renewable portfolio standards and cap-and-trade emission control programs. Increasingly, states are also …

Bridging Data Gaps Through Modeling And Evaluation Of Surrogates: Use Of The Best Available Science To Protect Biological Diversity Under The National Forest Management Act, Robert L. Glicksman

GW Law Faculty Publications & Other Works

The implementation of environmental law and policy typically proceeds in the face of scientific uncertainty. Despite this pervasive uncertainty, Congress has directed environmental and resource management agencies to ground their policy decisions in science. Agencies sometimes cope with the paradox of making science-based decisions in the face of uncertainty by using scientific models or other surrogacy techniques to simulate reality. Such simulation enables agencies to conform to their statutory responsibilities to base decisions on scientific considerations, even though a complete understanding of the relationships between their actions and the resulting environmental effects may be beyond their current capabilities.

This article …

Effectiveness Of Government Interventions At Inducing Better Environmental Performance: Does Effectiveness Depend On Facility Or Firm Features?, Robert L. Glicksman, Dietrich Earnhart

GW Law Faculty Publications & Other Works

Environmental agencies have several options for dealing with alleged noncompliance with environmental regulations. These options include pursuit of administrative or judicial civil penalties and injunctions to prevent future violations. Scholars have begun exploring whether these options induce better performance by regulated entities. This Article addresses a largely neglected question: whether a regulated facility's characteristics affect the efficacy of the different enforcement options. The Article stems from a study of compliance by the chemical industry with federal Clean Water Act permits. It assesses whether facility characteristics, including effluent limit level and type, permit modifications, facility size, capacity utilization, discharge volatility, and …

A Jurisprudence Of Ideology, Robert L. Glicksman, James May

GW Law Faculty Publications & Other Works

Chief Justice Rehnquist figures prominently in recent historic environmental case law addressed by the Supreme Court. Although generally critical of federal environmental laws, the skepticism stemmed from an interest in the protection of state rights and protection of private property rights rather than a general challenge to federal regulation. His jurisprudence reflects three “guideposts” to consider environmental concerns: limiting the scope of federal power, protecting state sovereignty from encroachment by the federal government, and protecting the rights of private property owners against intrusions resulting from regulation by government. In limiting the scope of federal power, Rehnquist specifically supported limitations on …

The Comparative Effectiveness Of Government Interventions On Environmental Performance In The Chemical Industry, Robert L. Glicksman, Dietrich Earnhart

GW Law Faculty Publications & Other Works

Effective enforcement is crucial to achieving the objectives of the federal environmental statutes. The federal Environmental Protection Agency (EPA) has recognized the importance of effective enforcement, calling it a critical aspect of environmental governance and committing itself to the maintenance of a "credible deterrent" to regulatory violations. Despite the central role of enforcement to achievement of environmental statutory goals, relatively little is known about why regulated entities either do or do not comply. In particular, empirical studies of environmental enforcement are not plentiful, in part because comprehensive data on compliance and enforcement have been difficult to obtain. Although EPA and …

A Collective Action Perspective On Ceiling Preemption By Federal Environmental Regulation: The Case Of Global Climate Change, Robert L. Glicksman, Richard E. Levy

GW Law Faculty Publications & Other Works

In an era of regulatory skepticism, proponents of regulation in general and environmental regulation in particular face a number of new political and legal hurdles, particularly at the federal level. Frustrated with federal inaction or weak federal regulation, it is increasingly common for states and local governments to adopt environmental laws that seek to provide greater environmental protection. The critical question is when federal environmental law provides a ceiling, preempting such state regulatory programs. In this article, which is part of a forthcoming symposium on federal preemption in the Northwestern Law Review, Professors Glicksman and Levy develop a framework for …

Depiction Of The Regulator-Regulated Entity Relationship In The Chemical Industry: Deterrence-Based V. Cooperative Enforcement, Robert L. Glicksman, Dietrich Earnhart

GW Law Faculty Publications & Other Works

For years, scholars and environmental policymakers have conducted a spirited debate about the comparative merits of two different approaches to enforcement of the nation's environmental laws - the coercive (or deterrence-based) and cooperative approaches. Supporters of the coercive model regard the deterrence of violations as the fundamental purpose of environmental enforcement. These supporters also regard the imposition of sanctions, which make it less costly for regulated entities to comply with their regulatory responsibilities and avoid enforcement than to fail to comply and run the risk of enforcement, as the most effective way for inducing regulated entities to comply with their …

Nothing Is Real: Protecting The Regulatory Void Through Federal Preemption By Inaction, Robert L. Glicksman

GW Law Faculty Publications & Other Works

Whether a federal statute preempts state law has important implications for the allocation of power between the federal and state governments. One aspect of preemption doctrine that has received relatively little scholarly attention is whether the federal government's failure to act is capable of preempting state law and, if so, when. In the regulatory context, Congress must first decide whether as a normative matter it should preempt state law despite its decision not to regulate activities regulated by states. Once Congress has done so, the courts may need to interpret federal legislation to determine whether Congress has decided to preempt …

From Cooperative To Inoperative Federalism: The Perverse Mutation Of Environmental Law And Policy, Robert L. Glicksman

GW Law Faculty Publications & Other Works

Beginning in 1970, Congress adopted a series of statutes to protect public health and the environment that represented an experiment in cooperative federalism. The operative principle of cooperative federalism is that the federal government establishes a policy - such as protection of public health and the environment and sustainable natural resource use - and then enlists the aid of the states, through a combination of carrots and sticks, in pursuing that policy. The result is a system in which both levels of government work together to achieve a common goal. If the process works well, the synergism of related federal …

Improving Regulation Through Incremental Adjustment, Robert L. Glicksman, Sidney A. Shapiro

GW Law Faculty Publications & Other Works

Claiming that existing regulation is excessive and irrational, regulatory critics have successfully convinced Congress and the White House to implement a plethora of procedural requirements to analyze a proposed regulation before it is promulgated. In our book, Risk Regulation at Risk: Restoring A Pragmatic Approach (2003), we argued that the previous initiatives address the possibility of regulatory failure on the wrong end of the regulatory policy implementation process. We suggested that one way of improving regulation would be to rely on incremental adjustments in regulation on the back end of the regulatory process. This article addresses in more detail the …

The Impact Of Economic Globalization On Compliance, Dinah L. Shelton

GW Law Faculty Publications & Other Works

The introductory chapter of this book begins by defining globalization and the novel notion of the “common concern of humanity” and describes the ethical, cultural, and economic considerations underlying protection of the biosphere. The chapter describes the evolution of the common concern of humanity in depth and describes the increased presence of international organizations. Next, the chapter introduces the Marrakesh Charter and its corresponding economic principles. The chapter concludes that there exists the need to create an international liability system for both states and individuals for environmental degradation caused by international trade.