Copyright (c) 2010 All rights reserved. http://works.bepress.com/robert_glicksman Recent documents in Robert L. Glicksman en-us Mon, 30 Aug 2010 01:30:29 PDT 3600 http://works.bepress.com/robert_glicksman/13 http://works.bepress.com/robert_glicksman/13 Sat, 28 Aug 2010 10:29:09 PDT The buildup of greenhouse gases in the atmosphere and the likely growth in future emissions due to increased energy consumption in developing nations have convinced many scientists and policymakers of the need to develop policies that will allow adaptation to minimize the adverse effects of climate change. Climate change adaptation is designed to increase the resilience of natural and human ecosystems to the threats posed by a changing environment. Although an extensive literature concerning the federalism implications of climate change mitigation policy has developed, less has been written about the federalism issues arising from climate change adaptation policy. This article provides a framework for determining how to structure a policy to facilitate adaptation to climate change that assigns appropriate roles to all levels of government.In particular, the article addresses three questions. First, when is participation by the federal government in directing climate change adaptation policy appropriate? Second, should the federal government set a floor that requires participation by, or at least conformance with federal requirements, by states and localities? Third, should the federal government ever displace state and local adaptation responses based on the threats they pose to federal interests? Collective action principles can assist in answering these questions and determining the proper institutional arrangements for dealing with climate change adaptation.It is inevitable that clashes of interest will develop between jurisdictions when desired resources are scarce or efforts by one jurisdiction to avoid the undesirable aspects of climate change shift the burden of those changes to other jurisdictions. These conflicts are likely to arise both when states and localities fail to do enough to anticipate and react to climate change and when they do “too much.” In these instances, federal intervention is desirable. The presence of transboundary externalities and race-to-the-bottom considerations are the most likely justifications for establishment of a federal floor, and conditional funding or cooperative federalism arrangements may be useful in avoiding excessive intrusion on state and local discretion. While most of the collective action rationales for a federal presence in environmental law are not likely to justify preemption of state and local adaptation measures, transboundary externalities, the need for uniformity, and the proclivity of state and localities to foist problems arising from climate change on other jurisdictions may do so in limited instances. Robert L. Glicksman Environmental Law http://works.bepress.com/robert_glicksman/12 http://works.bepress.com/robert_glicksman/12 Tue, 06 Jul 2010 09:27:34 PDT As a field of legal study and practice, administrative law rests on the premise that legal principles concerning agency structure, administrative process, and judicial review cut across multiple agencies. In practice, however, judicial precedents addressing the application of administrative law doctrines to a given agency tend to rely most heavily on other cases involving the same agency, and use verbal formulations or doctrinal approaches reflected in those cases. Over time, the doctrine often begins to develop its own unique characteristics when applied to that particular agency. These “agency-specific precedents” deviate from the conventional understanding of the relevant principles as a matter of administrative law and raise fundamental questions for administrative law scholars and practitioners.Our central thesis is that agency-specific precedents are a manifestation of the “silo effect,” a phrase commonly used in the literature concerning the operation of large organizations to describe the tendency of subdivisions to develop their own bureaucratic imperatives that create obstacles to information sharing and other forms of cooperation. After describing the emergence of administrative law as a body of generally applicable legal doctrine and introducing the silo effect and the related concept of information silos, the article presents five case studies of agency-specific precedents: (1) the treatment of “interpretive regulations” promulgated by the IRS; (2) the “reasoned decisionmaking” concept in judicial review of the FCC (and a few other agencies); (3) the requirement that EPA must docket ex parte communications of “central relevance” in rulemaking; (4) the treating physician rule in judicial review of SSA disability determinations; and (5) cases limiting the NLRB’s ability to overturn an administrative law judge’s credibility determinations based on demeanor. These agency-specific precedents cannot be fully explained by agency-specific statutes, programs, or practices that prompt specific judicial responses.We postulate that agency-specific precedents are a manifestation of the silo effect and discuss how the dynamics of information costs, the specialized bar, and the process of judicial review tend to produce them. Precedents are a type of information that is costly to gather and apply and whose value in litigation depends on its precedential weight or authority. Because attorneys who practice in most administrative law fields tend to be specialized, the information costs of finding and citing cases involving the agency are much lower than the costs of doing so for cases involving other agencies, while the precedential weight of decisions involving the agency will be higher than that of cases involving other agencies. Courts rely heavily on the attorneys litigating a case to gather and present information concerning precedent, so the information costs of finding and analyzing precedents outside the agency in question will be passed along to the courts. In addition to considering the dynamic that contributes to the formation of agency-specific precedents, we discuss their normative implications in terms of consistency with statutory provisions (particularly the APA), promoting legal certainty, and the development of optimal administrative law doctrines. Although the balance of costs and benefits from agency-specific precedents varies according to the circumstances, some agency-specific precedents would appear to be unjustified. We suggest that greater attention to the phenomenon by attorneys, courts, and scholars would help to break down such undesirable agency-specific precedential silos. Robert L. Glicksman http://works.bepress.com/robert_glicksman/11 http://works.bepress.com/robert_glicksman/11 Fri, 29 Jan 2010 09:17:39 PST The industries that generate environmental risks in the United States have long been hostile to regulatory programs that increase their costs of operation and reduce their profits. While industry may have been unprepared for, and thus poorly organized to resist, the first wave of federal environmental legislation enacted during the “environmental decade” of the 1970s, it quickly marshaled its forces. Regulated or potentially regulated entities, their trade associations, and their lobbyists began a concerted effort to defeat, delay, and weaken environmental regulation.This book chapter describes the process by which regulatory opponents successfully relied on free market ideology to couch their opposition to health, safety, and environmental regulation in terms that would resonate with the American public in ways it never had before. They portrayed regulation as the product of overreaching, meddlesome, wrong-headed, and power hungry bureaucrats that would almost inevitably detract from rather than enhance social welfare. In doing so, regulatory opponents enabled politicians to justify their efforts to derail and weaken protective regulation in terms consistent with pursuit of the public interest, rather than as a quid pro quo for the support of narrow, self-interested elements of the regulatory community. The chapter also analyzes how industry and its political supporters have relied on a familiar litany of anti-regulatory arguments generated by conservative ideologues to throttle the efforts of those who support government initiatives to tackle climate change. Although the litany has been used most recently to combat climate change legislation and regulation, it consists or arguments that regulatory opponents have used repeatedly throughout the history of U.S. environmentakl protection efforts. Robert L. Glicksman http://works.bepress.com/robert_glicksman/10 http://works.bepress.com/robert_glicksman/10 Mon, 28 Dec 2009 10:09:25 PST This article examines the assumptions upon which Congress relied in enacting the 1972 Clean Water Act and the extent to which they have been borne out or belied as the federal and state governments have implemented their statutory responsibilities in the quest to achieve acceptably clean water. It traces the development of federal water pollution control legislation before 1972, highlighting the deficiencies that contributed to the need for a new approach in 1972. It then examines the scientific and technical, political, and legal assumptions that helped shape the 1972 Clean Water Act in an effort to determine whether the failure to achieve fully the statute’s goals is inherent in the statute’s design or is more likely the result of the law’s incomplete implementation. The article concludes that a surprisingly large share of the assumptions upon which Congress built the Clean Water Act were valid and have helped to make the statute an environmental success story. The statute’s failure to perform even more admirably than it has is due largely to a lack of legislative clarity in addressing the role of wetlands in preserving the integrity of aquatic ecosystems and to Congress’ unwillingness to adopt, or force the states to adopt, measures to control nonpoint source pollution. Robert L. Glicksman http://works.bepress.com/robert_glicksman/9 http://works.bepress.com/robert_glicksman/9 Mon, 28 Dec 2009 10:04:38 PST Preemption of common law remedies for individual injuries such as harm to health raises fundamental questions about the proper allocation of authority between the federal and state governments and about the role of courts in interpreting statutes and providing remedies for those who suffer injuries. Developing a workable framework for analyzing what we call “remedial preemption” issues can help to ensure an appropriate accommodation of the federal and state interests at stake and promote consistent application of preemption doctrine to state judicial remedies.This article applies a “collective action” framework for preemption analysis to the issue of remedial preemption. Our analysis suggests that while remedial preemption may be justified in some cases, courts should not lightly infer remedial preemption unless: (1) a primary purpose of the federal law is to ensure uniform standards to promote free movement of goods, prevent the export of regulatory burdens by “downstream” states, or solve a not-in-my-backyard problem; and (2) there is strong evidence that state judicial remedies (as opposed to direct state regulation through legislation or the actions of administrative agencies) would interfere with the achievement of those goals. In addition, we conclude that preemption of one common law cause of action does not necessarily warrant preemption of different causes of action for remediation of the same injury. Finally, we argue that courts should be especially reluctant to read the preemptive effect of federal law so as to leave injured persons without any remedy whatsoever. In doing so we pay particular attention to the ways in which state judicial remedies differ from state regulation by means of statutes or administrative rules, including the differences between legislatures and courts, between legislative rules and judicial decisions, and among possible preemptive effects on judicial remedies. We conclude by analyzing how the Supreme Court’s 2009 holding in Wyeth v. Levine that state tort remedies based on failure-to-warn claims were not preempted by federal regulation of the content of warning labels for drugs comports with our analysis. Robert L. Glicksman http://works.bepress.com/robert_glicksman/8 http://works.bepress.com/robert_glicksman/8 Mon, 28 Dec 2009 09:58:04 PST Global climate change presents daunting challenges to the federal government’s ability to manage its lands and resources in ways that ensure that the priceless natural heritage that these land and resources comprise remains available in substantially unimpaired condition to both present and future generations of Americans. One of the challenges results from the fact that the laws governing the activities of federal land management agencies have outlasted the scientific assumptions on which those laws were based. In particular, Congress adopted many of those laws on the assumption that ecological systems tend toward a natural equilibrium. Subsequently, the science of ecology experienced a paradigm shift which recognizes that disturbances are a natural and necessary part of ecosystems. Natural resource management efforts that fail to consider the consequences of these disturbances are not likely to succeed at preserving the affected resources in the long term.This Article assesses the capability of the federal land management agencies under current law to deal with climate change and the threats it poses to federal lands and resources. It assesses whether the agencies’ organic statutes delegate to them sufficient authority to promote resilience in the natural resources they control, highlighting deficiencies in the nature, scope, and implementation of existing legislation. It makes a series of recommendations for changing either the statutes or the manner in which they are implemented to strengthen the capacity of the federal land management agencies to mitigate the impacts of climate change and avoid disruption or collapse of ecosystems in the face of it. The recommendations are designed to ensure that the land management agencies have ample authority to protect the resources for which they are responsible by managing them in an adaptive fashion, to promote ecosystem resilience and enhance their capacity to mitigate and adapt to climate change. Robert L. Glicksman http://works.bepress.com/robert_glicksman/7 http://works.bepress.com/robert_glicksman/7 Mon, 28 Dec 2009 09:53:06 PST This article explores the application of the principles of sustainability to management of lands and resources under the jurisdiction of the U.S. Forest Service and the Bureau of Land Management. These two agencies operate a mandate to manage the resources under their control to achieve sustained yield. In this context, sustainability hasoperated to date primarily in an aspirational fashion, as a broad objective of public landmanagement, rather than as a useful management tool or an enforceable constraint on agency management discretion.The article urges the adoption of amendments to the laws under which the Forest Service and the BLM operate to make them more consistent with the core function of sustainability—to ensure that the valuable environmental services provided by the lands and resources these agencies manage remain unimpaired for both present and future generations in the face of both natural disturbances and human use. In particular, it recommends that Congress recognize that federal lands and resources are held by the multiple use agencies in trust for the benefit of present and future generations and that it create a mechanism by which private citizens or public interest groups may sue the agencies if they waste trust assets or otherwise breach their fiduciary obligations to the American people. The article explores what the agencies’ core trust responsibilities should entail and provides examples of management standards that either Congress or the agencies might adopt to codify those obligations to assist judicial review of alleged breaches of fiduciary duty. In particular, it points to the certification processes created by the Forest Stewardship Council and the Fisheries Stewardship Council, coalitions of non-governmental organizations that promote sustainable forest and fisheries management, as possible models for transforming sustainability from an aspirational objective to an enforceable mandate to which the Forest Service and the BLM can be held accountable when they make specific resource management decisions Robert L. Glicksman http://works.bepress.com/robert_glicksman/6 http://works.bepress.com/robert_glicksman/6 Mon, 23 Jun 2008 14:08:36 PDT 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 simply refusing to allow the construction and operation of coal-fired electric plants. This article analyzes the Kansas Department of Health and Environment’s decision in 2007 to deny a permit for two large coal-fired units. It assesses the merits of the utility’s claims, advanced in ongoing litigation, that the state agency lacked the statutory authority to deny a permit based on the proposed units’ impact on climate change. More broadly, it addresses the utility of statutory substantial endangerment provisions, modeled on provisions in the federal pollution control statutes, in restricting greenhouse gas emissions from stationary sources such as electric power plants. The article concludes that substantial endangerment provisions provide a useful mechanism for blocking the construction and operation of stationary sources that may contribute to climate change. Robert L. Glicksman http://works.bepress.com/robert_glicksman/5 http://works.bepress.com/robert_glicksman/5 Fri, 13 Jun 2008 10:20:45 PDT 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 ownership structure, theoretically should make a difference and actually appeared to do so at the facilities covered by the study. The findings should be of interest to both facilities regulated under the Clean Water Act and federal and state regulators seeking to maximize the impact of their enforcement actions. Robert L. Glicksman http://works.bepress.com/robert_glicksman/4 http://works.bepress.com/robert_glicksman/4 Wed, 04 Jun 2008 13:15:22 PDT 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 considers the lessons that may be drawn from one federal agency's shifting approach to the use of models and surrogates. It explores the efforts by the United States Forest Service to comply with its obligation under the National Forest Management Act (NFMA) to provide for diversity of plant and animal communities in its planning processes. To minimize the uncertainty it faces in predicting what impact a particular action, such as a timber sale, will have on the biological diversity, the Forest Service has used models and surrogates. Initially, the agency used the impact of planned activities on management indicator species (MIS) as a surrogate for the impact on biodiversity in the affected area. More recently, it has considered impact on MIS habitat as a surrogate for the effects on biodiversity. This article explores the Forest Service's shifting approach to implementation of the NFMA's diversity mandate to illustrate the benefits and disadvantages of using scientific models and surrogacy techniques to make science-based decisions in the face of uncertainty. It provides a list of criteria (including recognition of the limits of scientific knowledge, collaboration, transparency, flexibility, and accountability) for judging modeling and similar simulation techniques and assesses how the Forest Service's efforts to implement the diversity requirement fare under those criteria. Robert L. Glicksman http://works.bepress.com/robert_glicksman/3 http://works.bepress.com/robert_glicksman/3 Thu, 06 Dec 2007 08:50:02 PST In the wake of Hurricane Katrina, attention has focused on a pair of threats to low-lying coastal areas. Scientists have begun a debate over the possible impact of global climate change on hurricane intensity. Some scientists take the position that recent increases in hurricane intensity in the North Atlantic are due, at least in part, to increases in sea surface temperatures caused by human-induced global climate change. Others believe that those increases are largely due to natural fluctuations in weather patterns such as the Atlantic Multidecadal Oscillation. There is little debate over a second threat to coastal areas. The broad consensus of scientific opinion supports the conclusion that global climate change poses a significant risk of accelerated melting of polar ice sheets and glaciers, which in turn increases the risk of coastal flooding.This article surveys the scientific literature on the links between global climate change and the risks of increased hurricane intensity and coastal flooding. It concludes that the scientific evidence of such links is compelling and that environmental and energy policymakers should respond by taking steps to abate the activities - primarily the emission of greenhouse gases - that are known to contribute to global climate change. The article describes a series of policy initiatives that the federal government could take but has not yet taken to contribute to global efforts to abate climate change. It also describes longstanding national environmental and energy policies that exacerbate, rather than alleviate the adverse effects of global climate change on coastal areas. Recent economic studies demonstrate that a comparison of the costs and benefits of tackling global climate change and failing to do so strongly supports taking immediate steps to address climate change, rather than further deferring such a response. Finally, the article assesses the possible impact of Katrina on the public policy debate over global climate change, and in particular, it focuses on the effects of Katrina on public opinion in the U.S. on government policies relating to global climate change. Robert L. Glicksman http://works.bepress.com/robert_glicksman/2 http://works.bepress.com/robert_glicksman/2 Thu, 06 Dec 2007 08:23:59 PST Shortly before the end of the Clinton Administration, the Forest Service issued its Roadless Area Conservation Rule (Roadless Rule) to govern the management of the 58.5 million acres of inventoried roadless areas located within the national forests. Described by the Chief of the Forest Service as “one of the most significant conservation efforts in United States history,” the Roadless Rule prohibited most road construction and timber harvesting activities in roadless areas as a means of sustaining the values of those areas “now and for future generations.” Within a day of the new President’s inauguration, however, the Bush Administration postponed the effective date of the Roadless Rule so that the new Administration would have the opportunity to review it. Six months later, the Forest Service published an advance notice of proposed rulemaking in which it asserted that long-term resource management decisions are more appropriately made through local forest planning decisions than through implementation of a uniform, nationally applicable rule. In mid-2004, the Forest Service followed up that notice by publishing a proposed rule that would replace the Clinton-era Roadless Rule with an approach that would allow development within roadless areas, to the extent permitted by current land-use plans, unless a state governor petitions the Secretary of Agriculture for protective regulations and the Secretary decides to approve such a petition.This Article compares the Clinton and Bush Administrations’ approaches to the management of roadless areas within the national forests as reflected in the Roadless Rule, its proposed replacement, and related initiatives. The Clinton Administration’s approach reflected a consistent effort to balance the desire to afford access for multiple uses of the national forests and the goal of ensuring long-term protection for valuable resources such as clean water and adequate wildlife habitat. That approach sought to shift the agency’s emphasis from building roads to facilitate timber harvesting and other resource extraction to providing environmentally sound access and improved stewardship. The Bush Administration’s developing approach, by contrast, emphasizes the protection of forest resources from natural disasters, but not from human activities such as road construction and timber harvesting. It also places a stronger emphasis on the protection of private property rights in and near the national forests than it does on the protection of ecologically valuable resources. This Article criticizes this shift in focus, along with the Bush Administration’s apparent willingness to sacrifice long-term ecological sustainability and to endorse a reduction in environmental evaluation under the National Environmental Policy Act (NEPA) of road-building and related activities in roadless areas, as an ill-advised and short-sighted weakening of the Roadless Rule’s resource protections for those areas. Finally, the Article reviews a series of lawsuits in which litigants have challenged the validity of the Roadless Rule, concluding that promulgation of the Rule violated neither NEPA nor the Wilderness Act of 1964. The Article concludes that the direction in which the Bush Administration is pushing roadless area management is aligned more with resource extraction and development and less with natural resource preservation, which will likely result in fewer roadless areas remaining roadless. Robert L. Glicksman http://works.bepress.com/robert_glicksman/1 http://works.bepress.com/robert_glicksman/1 Wed, 05 Dec 2007 11:59:20 PST 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 and state programs will yield more effective results than either level of government would have been capable of achieving by itselfAlthough this model of environmental statutory cooperative federalism is nominally still in place today, it operates today in a manner that is distinctly different from the way Congress initially envisioned. Federal power to prevent environmental harm is in some respects more limited today than it has been for most of the modern environmental era. This contraction of federal power has resulted from a combination of judicial, legislative, and administrative activity. Many state and local governments have reacted by pursuing innovative initiatives to fill the resulting gaps in federal environmental law. Instead of welcoming this development, however, the federal government, acting again through all three branches, has restricted state and local authority to continue with these endeavors. Recent congressional efforts to delegate to the states the authority to grant exemptions from federal environmental requirements provide yet another component of the inversion of the manner in which federalism operates in the context of environmental law.This article discusses the transformation of environmental law from a set of rules and doctrines that used to enable federal and state governments to cooperate in the quest for environmental protection to a revised system that, at least in some respects, restrains both levels of government from the vigorous pursuit of that goal. The upshot of these developments is a federal system that hinders the capacity of all levels of government to pursue environmental protection initiatives, thereby constraining the force of environmental law by pushing it toward the lowest common denominator. Robert L. Glicksman