Secretary of the Interior Ryan Zinke has described “compensatory mitigation” as “un-American” and “extortion.” In keeping with that view, on July 26, 2018, the Bureau of Land Management (“BLM”) adopted a radical new policy that disclaims statutory authority to impose compensatory mitigation measures. Notwithstanding the aspersions the Secretary has cast, compensatory mitigation is a common-sense policy instrument that has been a mainstay of environmental and public lands policy for decades. It is a tool through which an agency authorizing private activities — drilling oil wells, filling wetlands — conditions its approval upon the implementation of measures to offset attendant environmental harms. Compensatory mitigation thereby permits economic activity to proceed while maintaining the health of public lands and the environment more generally. This Essay examines the sparse legal analysis included in the BLM’s new policy and contends that it is illogical and unsupported by precedent. While policymakers may disagree about when and to what extent compensatory mitigation is appropriate, the BLM has entirely failed to justify its new and novel legal interpretation.
{"title":"The Bureau of Land Management's Infirm Compensatory Mitigation Policy","authors":"J. Pidot","doi":"10.2139/ssrn.3307224","DOIUrl":"https://doi.org/10.2139/ssrn.3307224","url":null,"abstract":"Secretary of the Interior Ryan Zinke has described “compensatory mitigation” as “un-American” and “extortion.” In keeping with that view, on July 26, 2018, the Bureau of Land Management (“BLM”) adopted a radical new policy that disclaims statutory authority to impose compensatory mitigation measures. \u0000 \u0000Notwithstanding the aspersions the Secretary has cast, compensatory mitigation is a common-sense policy instrument that has been a mainstay of environmental and public lands policy for decades. It is a tool through which an agency authorizing private activities — drilling oil wells, filling wetlands — conditions its approval upon the implementation of measures to offset attendant environmental harms. Compensatory mitigation thereby permits economic activity to proceed while maintaining the health of public lands and the environment more generally. \u0000 \u0000This Essay examines the sparse legal analysis included in the BLM’s new policy and contends that it is illogical and unsupported by precedent. While policymakers may disagree about when and to what extent compensatory mitigation is appropriate, the BLM has entirely failed to justify its new and novel legal interpretation.","PeriodicalId":425791,"journal":{"name":"Fordham Environmental Law Review","volume":"180 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2018-12-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122085787","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Laws regulating financial preparedness for catastrophe reveal the actuarial suppositions underlying disaster law and policy. This article explores three facets of catastrophic risk transfer. First, it explores how risk transfer emerges as the preeminent tool for managing risk. Measures sufficient for managing risks break down as the probability of loss plummets, but the magnitude of potential loss increases. Second, this article explores one alternative risk transfer mechanism by which insurance companies have sought to deepen their financial reserves in anticipation of correlated risks. Correlation among risks, the primary obstacle to functional insurance markets for catastrophic coverage, emerges in new form as the motivation for catastrophe bonds — and as these instruments’ leading pitfall. Finally, this article explores constraints on public intervention into disaster insurance. Along the dimensions of space, time, and human behavior, policies compensating individuals for disaster-related losses elude economic justification. The political economy of public intervention in disaster finance virtually guarantees catastrophic legal responses to catastrophic risks.
{"title":"Correlation, Coverage, and Catastrophe: The Contours of Financial Preparedness for Disaster","authors":"J. Chen","doi":"10.2139/SSRN.2468361","DOIUrl":"https://doi.org/10.2139/SSRN.2468361","url":null,"abstract":"Laws regulating financial preparedness for catastrophe reveal the actuarial suppositions underlying disaster law and policy. This article explores three facets of catastrophic risk transfer. First, it explores how risk transfer emerges as the preeminent tool for managing risk. Measures sufficient for managing risks break down as the probability of loss plummets, but the magnitude of potential loss increases. Second, this article explores one alternative risk transfer mechanism by which insurance companies have sought to deepen their financial reserves in anticipation of correlated risks. Correlation among risks, the primary obstacle to functional insurance markets for catastrophic coverage, emerges in new form as the motivation for catastrophe bonds — and as these instruments’ leading pitfall. Finally, this article explores constraints on public intervention into disaster insurance. Along the dimensions of space, time, and human behavior, policies compensating individuals for disaster-related losses elude economic justification. The political economy of public intervention in disaster finance virtually guarantees catastrophic legal responses to catastrophic risks.","PeriodicalId":425791,"journal":{"name":"Fordham Environmental Law Review","volume":"427 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-07-18","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123404748","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The Sixth Circuit Court of Appeals’ recent decision in International Dairy Foods Association v. Boggs, while ultimately resulting in regulation pertaining to milk labeling that is similar to regulations in other states, provides a useful framework for challenging the Food and Drug Administration (FDA)’s contention that it lacks the authority to mandate labeling of milk from cattle that have been treated with the hormone rBST. The court in Boggs found that a compositional difference exists between milk from cows treated with the hormone and those that were not, which could be considered a material fact mandating labeling under the Food, Drug, and Cosmetic Act. This Article discusses the history of the FDA’s statutory authority to regulate food products, as well as considers the Act’s purposes with respect to labeling, and the agency’s interpretation of that grant of authority. The Article then discusses the FDA’s controversial approval of rBST and the resulting challenge to that decision. The article concludes by discussing how the decision in Boggs can be instrumental in requiring FDA to mandate labeling of milk from cows treated with rBST due to the court’s acknowledgment of the compositional difference between conventional and rBST free milk.
{"title":"Milking It: Reconsidering the FDA’s Refusal to Require Labeling of Dairy Products Produced from rBST Treated Cows in Light of International Dairy Foods Association v. Boggs","authors":"Laurie J. Beyranevand","doi":"10.2139/SSRN.1925151","DOIUrl":"https://doi.org/10.2139/SSRN.1925151","url":null,"abstract":"The Sixth Circuit Court of Appeals’ recent decision in International Dairy Foods Association v. Boggs, while ultimately resulting in regulation pertaining to milk labeling that is similar to regulations in other states, provides a useful framework for challenging the Food and Drug Administration (FDA)’s contention that it lacks the authority to mandate labeling of milk from cattle that have been treated with the hormone rBST. The court in Boggs found that a compositional difference exists between milk from cows treated with the hormone and those that were not, which could be considered a material fact mandating labeling under the Food, Drug, and Cosmetic Act. This Article discusses the history of the FDA’s statutory authority to regulate food products, as well as considers the Act’s purposes with respect to labeling, and the agency’s interpretation of that grant of authority. The Article then discusses the FDA’s controversial approval of rBST and the resulting challenge to that decision. The article concludes by discussing how the decision in Boggs can be instrumental in requiring FDA to mandate labeling of milk from cows treated with rBST due to the court’s acknowledgment of the compositional difference between conventional and rBST free milk.","PeriodicalId":425791,"journal":{"name":"Fordham Environmental Law Review","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2011-09-09","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130442678","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Like many government regulations, municipal minimum parking requirements exist to prevent externalities - most notably the congestion, pollution and greenhouse gas emissions that occur when motorists drive around a city searching for scarce parking. But because such regulations make parking (and thus driving) cheaper, such regulations may in fact increase congestion and pollution, thus creating, rather than reducing, externalities.
{"title":"What Would Coase Do? (About Parking Regulation)","authors":"Michael E Lewyn","doi":"10.2139/SSRN.1632935","DOIUrl":"https://doi.org/10.2139/SSRN.1632935","url":null,"abstract":"Like many government regulations, municipal minimum parking requirements exist to prevent externalities - most notably the congestion, pollution and greenhouse gas emissions that occur when motorists drive around a city searching for scarce parking. But because such regulations make parking (and thus driving) cheaper, such regulations may in fact increase congestion and pollution, thus creating, rather than reducing, externalities.","PeriodicalId":425791,"journal":{"name":"Fordham Environmental Law Review","volume":"114 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2010-06-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"117282210","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
{"title":"Climate Change, Human Rights, and the Right to Be Cold","authors":"J. Harrington","doi":"10.7939/R3251G068","DOIUrl":"https://doi.org/10.7939/R3251G068","url":null,"abstract":"","PeriodicalId":425791,"journal":{"name":"Fordham Environmental Law Review","volume":"64 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116843478","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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