This article explores the growing federalism tensions in efforts to expand the nation’s energy transportation infrastructure — the electric transmission lines, natural gas pipelines, natural gas import and export terminals and related infrastructure that power the U.S. electricity and transportation systems. It uses two illustrations — one involving an interstate electric transmission line (subject to state jurisdiction) and one involving and an interstate natural gas pipeline (subject to federal jurisdiction) — to highlight how the clear jurisdictional lines between federal and state authority over these projects created decades ago is no longer adequate for today’s energy needs. We believe that many of the recent efforts by states and federal agencies to re-draw these jurisdictional battle lines in the context of particular projects have been counterproductive. They have they encouraged interest groups to entrench their respective positions in favor of state or federal regulatory power. They also have thwarted comprehensive and efficient energy planning, and have stood in the way of greater integration of new technologies and more diverse energy resources. Ultimately, we conclude that federal regulators — which have historically been much more attuned to federal and national energy needs in making project siting decisions — must be more proactive in addressing state interests and concerns associated with multi-state energy transport projects in cases where federal siting authority trumps that of the states. Likewise, for projects where the states possess primary regulatory authority that acts as a potential veto point over projects that promote federal and regional energy needs, a more significant federal role in evaluating those federal and regional needs is warranted.
{"title":"Reconstituting the Federalism Battle in Energy Transportation","authors":"Alexandra B. Klass, Jim Rossi","doi":"10.2139/SSRN.2836078","DOIUrl":"https://doi.org/10.2139/SSRN.2836078","url":null,"abstract":"This article explores the growing federalism tensions in efforts to expand the nation’s energy transportation infrastructure — the electric transmission lines, natural gas pipelines, natural gas import and export terminals and related infrastructure that power the U.S. electricity and transportation systems. It uses two illustrations — one involving an interstate electric transmission line (subject to state jurisdiction) and one involving and an interstate natural gas pipeline (subject to federal jurisdiction) — to highlight how the clear jurisdictional lines between federal and state authority over these projects created decades ago is no longer adequate for today’s energy needs. We believe that many of the recent efforts by states and federal agencies to re-draw these jurisdictional battle lines in the context of particular projects have been counterproductive. They have they encouraged interest groups to entrench their respective positions in favor of state or federal regulatory power. They also have thwarted comprehensive and efficient energy planning, and have stood in the way of greater integration of new technologies and more diverse energy resources. Ultimately, we conclude that federal regulators — which have historically been much more attuned to federal and national energy needs in making project siting decisions — must be more proactive in addressing state interests and concerns associated with multi-state energy transport projects in cases where federal siting authority trumps that of the states. Likewise, for projects where the states possess primary regulatory authority that acts as a potential veto point over projects that promote federal and regional energy needs, a more significant federal role in evaluating those federal and regional needs is warranted.","PeriodicalId":45668,"journal":{"name":"Harvard Environmental Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2016-09-07","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"75319780","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
When companies face adverse proposed rules, they may want to convince regulators that the proposed rules are unworkable and should be changed while, at the same time, reassuring investors that the rules will be manageable. These conflicting incentives may lead to inconsistent messages in regulatory comments and securities disclosures, fueling a perception that corporate submissions to regulators are "cheap talk." Despite this perception, there has been no empirical study comparing statements to these two audiences. This project performs such a study, taking the example of comments submitted on the Environmental Protection Agency's Renewable Fuel Standard. This standard provides an ideal case study because controversial annual rulemakings have created a rich dataset of company comments that can be compared to contemporaneous security disclosures from the same companies. The empirical study demonstrates that oil companies do send inconsistent messages to their two audiences — warning regulators and reassuring investors. The article suggests that regulators use this methodology to assess the sincerity of industry warnings about the cost of regulation. Private and public enforcers of security disclosure laws should also use this method to identify companies that are hiding regulatory risks. Finally, now that a company's comments can be compared with its securities disclosures, corporate counsel should align company statements to avoid securities litigation and enhance the company's credibility in each forum.
{"title":"How Cheap is Corporate Talk? Comparing Companies' Comments on Regulations With Their Securities Disclosures","authors":"J. Coleman","doi":"10.2139/SSRN.2586798","DOIUrl":"https://doi.org/10.2139/SSRN.2586798","url":null,"abstract":"When companies face adverse proposed rules, they may want to convince regulators that the proposed rules are unworkable and should be changed while, at the same time, reassuring investors that the rules will be manageable. These conflicting incentives may lead to inconsistent messages in regulatory comments and securities disclosures, fueling a perception that corporate submissions to regulators are \"cheap talk.\" Despite this perception, there has been no empirical study comparing statements to these two audiences. This project performs such a study, taking the example of comments submitted on the Environmental Protection Agency's Renewable Fuel Standard. This standard provides an ideal case study because controversial annual rulemakings have created a rich dataset of company comments that can be compared to contemporaneous security disclosures from the same companies. The empirical study demonstrates that oil companies do send inconsistent messages to their two audiences — warning regulators and reassuring investors. The article suggests that regulators use this methodology to assess the sincerity of industry warnings about the cost of regulation. Private and public enforcers of security disclosure laws should also use this method to identify companies that are hiding regulatory risks. Finally, now that a company's comments can be compared with its securities disclosures, corporate counsel should align company statements to avoid securities litigation and enhance the company's credibility in each forum.","PeriodicalId":45668,"journal":{"name":"Harvard Environmental Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2015-03-29","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"81642155","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
The United States is in the midst of a natural gas boom, made possible by advances in drilling and extraction technologies. There is considerable disagreement about the relative benefits and costs of the boom, but one thing is certain: it has caught governments flat-footed. The federal government has done little more than commission a study of some associated public health and environmental risks. States have moved faster to address natural gas risks, but with little consistency or transparency. Numerous private organizations are beginning to fill the resulting governance gaps with information-gathering and standards-setting efforts. This Paper documents these efforts and then uses a concrete policy proposal — the development of sustainable shale gas credits — to argue that these private entities are well positioned to facilitate the development and horizontal and vertical diffusion of innovative public governance strategies. In other words, these entities are fulfilling the experimentation function once assigned to states in so-called “laboratory federalism.” The Paper ends on a cautionary note, however. Private governance efforts often suffer from a lack of openness, balance, and accountability. Worse, there is reason to fear that familiar procedural reforms aimed at fixing those problems for public agencies may work far less well in the private context.
{"title":"Fracking, Federalism, and Private Governance","authors":"A. Leiter","doi":"10.2139/SSRN.2407102","DOIUrl":"https://doi.org/10.2139/SSRN.2407102","url":null,"abstract":"The United States is in the midst of a natural gas boom, made possible by advances in drilling and extraction technologies. There is considerable disagreement about the relative benefits and costs of the boom, but one thing is certain: it has caught governments flat-footed. The federal government has done little more than commission a study of some associated public health and environmental risks. States have moved faster to address natural gas risks, but with little consistency or transparency. Numerous private organizations are beginning to fill the resulting governance gaps with information-gathering and standards-setting efforts. This Paper documents these efforts and then uses a concrete policy proposal — the development of sustainable shale gas credits — to argue that these private entities are well positioned to facilitate the development and horizontal and vertical diffusion of innovative public governance strategies. In other words, these entities are fulfilling the experimentation function once assigned to states in so-called “laboratory federalism.” The Paper ends on a cautionary note, however. Private governance efforts often suffer from a lack of openness, balance, and accountability. Worse, there is reason to fear that familiar procedural reforms aimed at fixing those problems for public agencies may work far less well in the private context.","PeriodicalId":45668,"journal":{"name":"Harvard Environmental Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2014-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90331137","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Casswell F. Holloway, Carter H. Strickland, M. Gerrard, Daniel M. Firger
Faced with mounting infrastructure construction costs and more frequent and severe weather events due to climate change, cities across the country are managing the water pollution challenges of stormwater runoff and combined sewer overflows through new and innovative “green infrastructure” mechanisms that mimic, maintain, or restore natural hydrological features in the urban landscape. When utilized properly, such mechanisms can obviate the need for more expensive pipes, storage facilities, and other traditional “grey infrastructure” features, so named to acknowledge the vast amounts of concrete and other materials with high embedded energy necessary in their construction. Green infrastructure can also provide substantial co-benefits to city dwellers, such as cleaner air, reduced urban temperatures, and quality of life improvements associated with recreation areas and wildlife habitats. This Article examines the opportunities and challenges presented by municipal green infrastructure programs in the context of Clean Water Act (“CWA”) enforcement by the U.S. Environmental Protection Agency (“EPA”). First, it explores new thinking in urban sustainability and identifies opportunities for greater federal-municipal cooperation in the management of environmental problems, including stormwater runoff. Second, it unpacks the challenges presented by the relative inflexibility of federal environmental enforcement in the context of urban stormwater management under the CWA, and compares the differences between traditional federal approaches and newer local initiatives in terms of adaptability, responsiveness to community needs, preferences and trade-offs, cost effectiveness, and innovation. Third, it describes a recent consent agreement between New York State and New York City, identifying key features and best practices that can be readily replicated in other jurisdictions. In recent years, EPA has taken big steps forward to encourage and support municipal green infrastructure initiatives, including the release of its Integrated Municipal Stormwater and Wastewater Planning Approach Framework. The Article concludes with a specific proposal for further regulatory and policy reform that would build upon this framework to develop truly comprehensive, municipally-led plans to prioritize infrastructure investments that improve public health and the environment.
{"title":"Solving the CSO Conundrum: Green Infrastructure and the UnfulfilledPromise of Federal-Municipal Cooperation","authors":"Casswell F. Holloway, Carter H. Strickland, M. Gerrard, Daniel M. Firger","doi":"10.7916/D8ZK5FMX","DOIUrl":"https://doi.org/10.7916/D8ZK5FMX","url":null,"abstract":"Faced with mounting infrastructure construction costs and more frequent and severe weather events due to climate change, cities across the country are managing the water pollution challenges of stormwater runoff and combined sewer overflows through new and innovative “green infrastructure” mechanisms that mimic, maintain, or restore natural hydrological features in the urban landscape. When utilized properly, such mechanisms can obviate the need for more expensive pipes, storage facilities, and other traditional “grey infrastructure” features, so named to acknowledge the vast amounts of concrete and other materials with high embedded energy necessary in their construction. Green infrastructure can also provide substantial co-benefits to city dwellers, such as cleaner air, reduced urban temperatures, and quality of life improvements associated with recreation areas and wildlife habitats. This Article examines the opportunities and challenges presented by municipal green infrastructure programs in the context of Clean Water Act (“CWA”) enforcement by the U.S. Environmental Protection Agency (“EPA”). First, it explores new thinking in urban sustainability and identifies opportunities for greater federal-municipal cooperation in the management of environmental problems, including stormwater runoff. Second, it unpacks the challenges presented by the relative inflexibility of federal environmental enforcement in the context of urban stormwater management under the CWA, and compares the differences between traditional federal approaches and newer local initiatives in terms of adaptability, responsiveness to community needs, preferences and trade-offs, cost effectiveness, and innovation. Third, it describes a recent consent agreement between New York State and New York City, identifying key features and best practices that can be readily replicated in other jurisdictions. In recent years, EPA has taken big steps forward to encourage and support municipal green infrastructure initiatives, including the release of its Integrated Municipal Stormwater and Wastewater Planning Approach Framework. The Article concludes with a specific proposal for further regulatory and policy reform that would build upon this framework to develop truly comprehensive, municipally-led plans to prioritize infrastructure investments that improve public health and the environment.","PeriodicalId":45668,"journal":{"name":"Harvard Environmental Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2014-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"78033292","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
37 HARV. ENVTL. L. REV. 57 (2013). Republished with permission from the Harvard Environmental Law Review, 37 Harv. Envtl. L. Rev. 57 (2013) (the Washington Journal of Environmental Law & Policy made no edits to this article). Please note that the copyright in the Harvard Environmental Law Review is held by the President and Fellows of Harvard College, and that the copyright in the article is held by the author.
{"title":"Ten Ways States Can Combat Ocean Acidification (and Why They Should)","authors":"R. Kelly, M. Caldwell","doi":"10.2139/SSRN.2020520","DOIUrl":"https://doi.org/10.2139/SSRN.2020520","url":null,"abstract":"37 HARV. ENVTL. L. REV. 57 (2013). Republished with permission from the Harvard Environmental Law Review, 37 Harv. Envtl. L. Rev. 57 (2013) (the Washington Journal of Environmental Law & Policy made no edits to this article). Please note that the copyright in the Harvard Environmental Law Review is held by the President and Fellows of Harvard College, and that the copyright in the article is held by the author.","PeriodicalId":45668,"journal":{"name":"Harvard Environmental Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2013-04-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"85002429","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Judicial review is considered an indispensible legitimizer of the administrative state. Not only is it a hallmark feature of the Administrative Procedure Act, but the various standards of review reinforce democratic norms, promote accountability, and act as a check against arbitrariness. Unreviewable agency actions, therefore, must find their legitimacy elsewhere. This article evaluates the promise of “inside-out” legitimacy as an alternative or complement to judicial review. We theorize, based on insights from the administrative law and procedural justice literatures, that administrative process design can do much to advance legitimacy without the need to rely on judicial review to check administrative decisionmaking. Next, we connect the theoretical conceptions of legitimacy to administrative behavior by offering metrics for testing intrinsic legitimacy. To demonstrate how these metrics might be applied, we present an empirical study of an innovative administrative fire-alarm process that enables interested parties to petition EPA to withdraw states’ authorization to administer the major environmental statutes. While this process may trigger a variety of responses by EPA, there is generally little recourse to the courts for citizens dissatisfied with the process or its outcomes. Our findings suggest that, even without external checks, EPA engages in numerous behaviors indicative of intrinsic legitimacy. In addition, the process itself produces real substantive outcomes. Armed with these findings, we conclude with an assessment of institutional design features that may contribute to inside-out legitimacy.
{"title":"Administrative Proxies for Judicial Review: Building Legitimacy from the Inside-Out","authors":"E. Hammond, David L. Markell","doi":"10.2139/SSRN.2127838","DOIUrl":"https://doi.org/10.2139/SSRN.2127838","url":null,"abstract":"Judicial review is considered an indispensible legitimizer of the administrative state. Not only is it a hallmark feature of the Administrative Procedure Act, but the various standards of review reinforce democratic norms, promote accountability, and act as a check against arbitrariness. Unreviewable agency actions, therefore, must find their legitimacy elsewhere. This article evaluates the promise of “inside-out” legitimacy as an alternative or complement to judicial review. We theorize, based on insights from the administrative law and procedural justice literatures, that administrative process design can do much to advance legitimacy without the need to rely on judicial review to check administrative decisionmaking. Next, we connect the theoretical conceptions of legitimacy to administrative behavior by offering metrics for testing intrinsic legitimacy. To demonstrate how these metrics might be applied, we present an empirical study of an innovative administrative fire-alarm process that enables interested parties to petition EPA to withdraw states’ authorization to administer the major environmental statutes. While this process may trigger a variety of responses by EPA, there is generally little recourse to the courts for citizens dissatisfied with the process or its outcomes. Our findings suggest that, even without external checks, EPA engages in numerous behaviors indicative of intrinsic legitimacy. In addition, the process itself produces real substantive outcomes. Armed with these findings, we conclude with an assessment of institutional design features that may contribute to inside-out legitimacy.","PeriodicalId":45668,"journal":{"name":"Harvard Environmental Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2013-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"90398844","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Thirty-five years ago, the Endangered Species Act (ESA) had as auspicious a debut in the United States Supreme Court as any statute could hope for. In Tennessee Valley Authority v. Hill, a majority of the Court proclaimed that the ESA was intended “to halt and reverse the trend toward species extinction, whatever the cost” and backed up those and other bold words by preventing a nearly completed federal dam from impounding its reservoir because doing so would eliminate the only known (at the time) habitat of a small fish, the now infamous snail darter. To this day, Hill remains actively discussed in judicial opinions, on environmental lawyers’ short list of important cases, a mainstay of law school casebooks, and a lively focus of legal scholarship. As it turns out, however, Hill has become the extreme outlier in the Court’s ESA jurisprudence. In a series of four decisions spaced out from 1992 to 2007, two focused on standing doctrine and two on statutory substance, the Court has silently but unmistakably eviscerated Hill, thereby knocking the ESA off its pedestal. This Article is the first to examine the ESA’s remarkable fall from grace in the Court as a measure of where environmental values and environmental law fit in the Court’s jurisprudence and what that suggests for the design of environmental law. Part I of the Article provides brief overviews of the ESA, the cases, and the Justices’ voting patterns to situate the Court’s four post-Hill decisions in their jurisprudential contexts. The body of the Article then moves through three lessons Hill’s unruly successors have to offer. First, Part II uses the ESA’s slow demise as a window into the Court’s environmental values perspective, using what has happened to the ESA to illuminate and evaluate various legal scholars’ theories of how the Court views the environment as a context for decisions. Part III argues that the driving causal agent behind the ESA’s decline has been the evolution of the statute’s implementation from a novelty in environmental law to a robust regulatory program. The evidence from the ESA’s fall from grace, therefore, is that while it suggests the Court has at times been apathetic to, confused about, or hostile to the environment, the better explanation for what has happened to the ESA is that the Court is skeptical about environmental law. Part IV thus closes by extracting what can be learned from the history of the ESA in the Court about the design of environmental law, particularly those aimed at ecosystem protection and biodiversity conservation.
{"title":"The Endangered Species Act's Fall from Grace in the Supreme Court","authors":"J. Ruhl","doi":"10.2139/SSRN.1953339","DOIUrl":"https://doi.org/10.2139/SSRN.1953339","url":null,"abstract":"Thirty-five years ago, the Endangered Species Act (ESA) had as auspicious a debut in the United States Supreme Court as any statute could hope for. In Tennessee Valley Authority v. Hill, a majority of the Court proclaimed that the ESA was intended “to halt and reverse the trend toward species extinction, whatever the cost” and backed up those and other bold words by preventing a nearly completed federal dam from impounding its reservoir because doing so would eliminate the only known (at the time) habitat of a small fish, the now infamous snail darter. To this day, Hill remains actively discussed in judicial opinions, on environmental lawyers’ short list of important cases, a mainstay of law school casebooks, and a lively focus of legal scholarship. As it turns out, however, Hill has become the extreme outlier in the Court’s ESA jurisprudence. In a series of four decisions spaced out from 1992 to 2007, two focused on standing doctrine and two on statutory substance, the Court has silently but unmistakably eviscerated Hill, thereby knocking the ESA off its pedestal. This Article is the first to examine the ESA’s remarkable fall from grace in the Court as a measure of where environmental values and environmental law fit in the Court’s jurisprudence and what that suggests for the design of environmental law. Part I of the Article provides brief overviews of the ESA, the cases, and the Justices’ voting patterns to situate the Court’s four post-Hill decisions in their jurisprudential contexts. The body of the Article then moves through three lessons Hill’s unruly successors have to offer. First, Part II uses the ESA’s slow demise as a window into the Court’s environmental values perspective, using what has happened to the ESA to illuminate and evaluate various legal scholars’ theories of how the Court views the environment as a context for decisions. Part III argues that the driving causal agent behind the ESA’s decline has been the evolution of the statute’s implementation from a novelty in environmental law to a robust regulatory program. The evidence from the ESA’s fall from grace, therefore, is that while it suggests the Court has at times been apathetic to, confused about, or hostile to the environment, the better explanation for what has happened to the ESA is that the Court is skeptical about environmental law. Part IV thus closes by extracting what can be learned from the history of the ESA in the Court about the design of environmental law, particularly those aimed at ecosystem protection and biodiversity conservation.","PeriodicalId":45668,"journal":{"name":"Harvard Environmental Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2011-11-03","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"82243625","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
All federal agencies must cope with the challenges of trying to achieve success on the multiple goals laid out for them by Congress, the President, or the public at large. Recent economics and political science literature provides a theoretical framework that helps explain why agencies might succeed in achieving some goals and fail in achieving others: Agencies will systematically underperform on goals that are hard to measure and that conflict with the achievement of other, more measurable goals. While agencies in theory might be able to improve their ability to measure performance through technological and organizational innovation, in many cases agency missions, historical inertia, and the professional orientation of agency staff will interfere with innovation. Principals (such as Congress) have various options to address this problem. Some options focus on changing the agency itself: (1) having the principal take back decision-making authority from the agency; (2) splitting agencies into components that pursue different goals; or (3) mandating that the agency innovate in developing information about undervalued goals. All of these intra-agency efforts have their limitations: Principals only have so much time and energy to make decisions themselves; splitting agencies is often not feasible; and agencies may be resistant to external cultural change. Another range of options involves having another agency monitor the decision-making agency to ensure minimal compliance with performance on one or more goals. This could include having one agency comment on the decision-making agency's performance on an undervalued goal (the agency as lobbyist model) or could extend to having another agency make legally binding determinations about whether the decision-making agency has met minimum standards for that undervalued goal (the agency as regulator model). The more stringent the inter-agency monitoring is, the more effective regulation might be at achieving minimum compliance with undervalued goals, but with the consequence of greatly increasing transaction costs such as litigation. Thus, principals will not only have to trade off agency performance among multiple goals, but will also have to trade off among the various solutions they might try to use to address the problems of multiple-goal agencies.
{"title":"Too Many Things to Do: How to Deal with the Dysfunctions of Multiple-Goal Agencies","authors":"Eric Biber","doi":"10.2139/SSRN.1090313","DOIUrl":"https://doi.org/10.2139/SSRN.1090313","url":null,"abstract":"All federal agencies must cope with the challenges of trying to achieve success on the multiple goals laid out for them by Congress, the President, or the public at large. Recent economics and political science literature provides a theoretical framework that helps explain why agencies might succeed in achieving some goals and fail in achieving others: Agencies will systematically underperform on goals that are hard to measure and that conflict with the achievement of other, more measurable goals. While agencies in theory might be able to improve their ability to measure performance through technological and organizational innovation, in many cases agency missions, historical inertia, and the professional orientation of agency staff will interfere with innovation. Principals (such as Congress) have various options to address this problem. Some options focus on changing the agency itself: (1) having the principal take back decision-making authority from the agency; (2) splitting agencies into components that pursue different goals; or (3) mandating that the agency innovate in developing information about undervalued goals. All of these intra-agency efforts have their limitations: Principals only have so much time and energy to make decisions themselves; splitting agencies is often not feasible; and agencies may be resistant to external cultural change. Another range of options involves having another agency monitor the decision-making agency to ensure minimal compliance with performance on one or more goals. This could include having one agency comment on the decision-making agency's performance on an undervalued goal (the agency as lobbyist model) or could extend to having another agency make legally binding determinations about whether the decision-making agency has met minimum standards for that undervalued goal (the agency as regulator model). The more stringent the inter-agency monitoring is, the more effective regulation might be at achieving minimum compliance with undervalued goals, but with the consequence of greatly increasing transaction costs such as litigation. Thus, principals will not only have to trade off agency performance among multiple goals, but will also have to trade off among the various solutions they might try to use to address the problems of multiple-goal agencies.","PeriodicalId":45668,"journal":{"name":"Harvard Environmental Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2009-04-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89789708","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
In this Article, the authors survey how agencies create substantive regulations through traditional rulemaking, negotiated rulemaking and litigation. Using public choice analysis, the Article relates agency choice to the agency's incentive structure. The Article also shows how the different forms of regulatory activity influence the content of agency regulations. Using a case study of EPA's regulation of heavy duty diesel engines, the Article examines EPA's choices over 30 years as a means of testing the proposed theory. Finally, the Article concludes with a critique of allowing agencies to choose how they will regulate because it allows agencies to evade constraints imposed by Congress and the President and so diminishes political accountability.
{"title":"Choosing How to Regulate","authors":"Andrew P. Morriss, B. Yandle, Andy Dorchak","doi":"10.2139/SSRN.530163","DOIUrl":"https://doi.org/10.2139/SSRN.530163","url":null,"abstract":"In this Article, the authors survey how agencies create substantive regulations through traditional rulemaking, negotiated rulemaking and litigation. Using public choice analysis, the Article relates agency choice to the agency's incentive structure. The Article also shows how the different forms of regulatory activity influence the content of agency regulations. Using a case study of EPA's regulation of heavy duty diesel engines, the Article examines EPA's choices over 30 years as a means of testing the proposed theory. Finally, the Article concludes with a critique of allowing agencies to choose how they will regulate because it allows agencies to evade constraints imposed by Congress and the President and so diminishes political accountability.","PeriodicalId":45668,"journal":{"name":"Harvard Environmental Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2004-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"87117599","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
This Article explores the feasibility of using "givings recapture mechanisms" to promote effective land use management on coastal floodplains. Specifically, current government responses to floods and flood risks - typified by regulatory restrictions on floodplain land use, structural protections, and flood insurance or disaster relief - transfer substantial "givings" to private property owners. These givings have dramatically increased the value of coastal properties and continue to promote or maintain in place unwise and unsustainable coastal floodplain development. Ironically, increased coastal property values resulting from such givings have rendered prohibitively costly one land use management technique that has proven effective at reducing flood losses - public acquisition of high-risk or environmentally sensitive private property. While many scholars and commentators have approached this problem from the perspective of eliminating subsidization of floodplain development, my analysis is unique in that it recommends that government attempt to recapture past givings by offsetting those givings as a credit against the compensation the government must pay when it acquires private floodplain property. Such an approach would protect legitimate investment-backed expectations of landowners while effecting a long-term retreat from coastal floodplains threatened by rising sea levels and increasing hurricane risks.
{"title":"Givings Recapture: Funding Public Acquisition of Private Property Interests on the Coasts","authors":"Daniel D. Barnhizer","doi":"10.2139/SSRN.436700","DOIUrl":"https://doi.org/10.2139/SSRN.436700","url":null,"abstract":"This Article explores the feasibility of using \"givings recapture mechanisms\" to promote effective land use management on coastal floodplains. Specifically, current government responses to floods and flood risks - typified by regulatory restrictions on floodplain land use, structural protections, and flood insurance or disaster relief - transfer substantial \"givings\" to private property owners. These givings have dramatically increased the value of coastal properties and continue to promote or maintain in place unwise and unsustainable coastal floodplain development. Ironically, increased coastal property values resulting from such givings have rendered prohibitively costly one land use management technique that has proven effective at reducing flood losses - public acquisition of high-risk or environmentally sensitive private property. While many scholars and commentators have approached this problem from the perspective of eliminating subsidization of floodplain development, my analysis is unique in that it recommends that government attempt to recapture past givings by offsetting those givings as a credit against the compensation the government must pay when it acquires private floodplain property. Such an approach would protect legitimate investment-backed expectations of landowners while effecting a long-term retreat from coastal floodplains threatened by rising sea levels and increasing hurricane risks.","PeriodicalId":45668,"journal":{"name":"Harvard Environmental Law Review","volume":null,"pages":null},"PeriodicalIF":1.3,"publicationDate":"2003-08-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79508412","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":4,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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