This Essay examines the move by environmental and natural resources agencies to devolve decision making influence to local, multi-stakeholder, collaborative groups. The emerging use of such decision making mechanisms - such as forestry and watershed partnerships and community advisory committees - reflects the need for more creative solutions to the current generation of environmental problems and for improved decision making processes for identifying and equitably distributing the costs and benefits of environmental decisions. In seeking more participatory, local and holistic decision making mechanisms, the move toward devolved collaboration intersects and converges with another prominent movement, environmental justice, in ways that are crucial for the future of environmental decision making. This Essay examines the points of convergence and divergence between these two important currents in modern environmental decision making. On the one hand, the interest-convergence of these two powerful currents in modern environmentalism has been a crucial element shaping the direction of environmentalism from the 1990s into the new century. There are now more voices than ever calling for the creation of democratic, sustainable communities and for a more comprehensive approach to environmental problems that address the connections between environmental, economic and civic health. Yet, despite the interest-convergence of these two powerful currents in modern environmentalism, there are dangers lurking at their intersection. This Essay argues that while devolved collaboration can theoretically ameliorate some regulatory inequities, it may also add renewed legitimacy to racial and class distributional inequities, further entrenching them in the landscape of environmental decision-making. Perhaps as importantly, devolved collaboration will introduce new equity problems in environmental decision-making by modifying current patterns of participation and representation in unforeseen ways. Like its predecessor decision making approaches, this evolving model, thus far, is indifferent to (or innocent about) the social structural and institutional conditions necessary to realize its own promises, including its aspiration of more equitable decisions. This Essay concludes that the movement toward devolved collaboration should best be regarded as the collective expression of a core set of normative principles that can guide the shaping of environmental decision making processes in a context-specific fashion. These normative principles can be used to tailor a mix of decision making mechanisms to specific environmental problems in particular ecological, social, economic, and political contexts. This contextualized approach brings with it the additional virtue of preserving the accountability of centralized authorities for ensuring fidelity to these principles in specific contexts instead of leaving this task to unaccountable, fragmented local groups.
{"title":"Environmental Justice in an Era of Devolved Collaboration","authors":"Sheila Rose Foster","doi":"10.2139/SSRN.291510","DOIUrl":"https://doi.org/10.2139/SSRN.291510","url":null,"abstract":"This Essay examines the move by environmental and natural resources agencies to devolve decision making influence to local, multi-stakeholder, collaborative groups. The emerging use of such decision making mechanisms - such as forestry and watershed partnerships and community advisory committees - reflects the need for more creative solutions to the current generation of environmental problems and for improved decision making processes for identifying and equitably distributing the costs and benefits of environmental decisions. In seeking more participatory, local and holistic decision making mechanisms, the move toward devolved collaboration intersects and converges with another prominent movement, environmental justice, in ways that are crucial for the future of environmental decision making. This Essay examines the points of convergence and divergence between these two important currents in modern environmental decision making. On the one hand, the interest-convergence of these two powerful currents in modern environmentalism has been a crucial element shaping the direction of environmentalism from the 1990s into the new century. There are now more voices than ever calling for the creation of democratic, sustainable communities and for a more comprehensive approach to environmental problems that address the connections between environmental, economic and civic health. Yet, despite the interest-convergence of these two powerful currents in modern environmentalism, there are dangers lurking at their intersection. This Essay argues that while devolved collaboration can theoretically ameliorate some regulatory inequities, it may also add renewed legitimacy to racial and class distributional inequities, further entrenching them in the landscape of environmental decision-making. Perhaps as importantly, devolved collaboration will introduce new equity problems in environmental decision-making by modifying current patterns of participation and representation in unforeseen ways. Like its predecessor decision making approaches, this evolving model, thus far, is indifferent to (or innocent about) the social structural and institutional conditions necessary to realize its own promises, including its aspiration of more equitable decisions. This Essay concludes that the movement toward devolved collaboration should best be regarded as the collective expression of a core set of normative principles that can guide the shaping of environmental decision making processes in a context-specific fashion. These normative principles can be used to tailor a mix of decision making mechanisms to specific environmental problems in particular ecological, social, economic, and political contexts. This contextualized approach brings with it the additional virtue of preserving the accountability of centralized authorities for ensuring fidelity to these principles in specific contexts instead of leaving this task to unaccountable, fragmented local groups.","PeriodicalId":45668,"journal":{"name":"Harvard Environmental Law Review","volume":"1 1","pages":"459"},"PeriodicalIF":1.3,"publicationDate":"2001-11-20","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"89970173","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}
While regulatory agencies have been engaging in negotiation with regulated parties and other stakeholders for decades now, careful study of the implications of such negotiations have lagged. In particular, while several commentators have now staked out intellectual ground on the theoretical ramifications of regulatory negotiation, empirical analyses of regulatory negotiations have been lacking. This article analyzes the implications of regulatory "reinvention" as the latest in a series of administrative initiatives aimed at achieving better rulemaking and adjudication through negotiations. Reinvention is commonly understood to mean those programs that utilize negotiated agreements to implement regulatory requirements imposed by various environmental statutes. Controversy has visited reinvention, as several specific reinvention projects have raised questions regarding the legality of this administrative practice. Using an economic game-theoretic model, this article argues for a continuation of this practice, but under new statutory authorizations. Reinvention accomplishes much-needed flexibility in environmental statutes that have suffered from partisan Congressional gridlock, and by and large effectuate minor common sense amendments. Several instances of administrative failures, however, have jeopardized the legitimacy of this practice. Statutory authorizations, coupled with funding for enforcement and specific guidelines limiting agency discretion can bring legitimacy to regulatory negotiation. In addition, objective means of monitoring and evaluating the effectiveness of agencies in conducting negotiations are necessary. Towards this end, this article argues for empowerment of citizen groups and presents an empirical means of evaluating the fairness of regulatory negotiations.
{"title":"A Game Theoretic Approach to Regulatory Negotiation: A Framework for Empirical Analysis","authors":"Shi-Ling Hsu","doi":"10.2139/SSRN.282962","DOIUrl":"https://doi.org/10.2139/SSRN.282962","url":null,"abstract":"While regulatory agencies have been engaging in negotiation with regulated parties and other stakeholders for decades now, careful study of the implications of such negotiations have lagged. In particular, while several commentators have now staked out intellectual ground on the theoretical ramifications of regulatory negotiation, empirical analyses of regulatory negotiations have been lacking. This article analyzes the implications of regulatory \"reinvention\" as the latest in a series of administrative initiatives aimed at achieving better rulemaking and adjudication through negotiations. Reinvention is commonly understood to mean those programs that utilize negotiated agreements to implement regulatory requirements imposed by various environmental statutes. Controversy has visited reinvention, as several specific reinvention projects have raised questions regarding the legality of this administrative practice. Using an economic game-theoretic model, this article argues for a continuation of this practice, but under new statutory authorizations. Reinvention accomplishes much-needed flexibility in environmental statutes that have suffered from partisan Congressional gridlock, and by and large effectuate minor common sense amendments. Several instances of administrative failures, however, have jeopardized the legitimacy of this practice. Statutory authorizations, coupled with funding for enforcement and specific guidelines limiting agency discretion can bring legitimacy to regulatory negotiation. In addition, objective means of monitoring and evaluating the effectiveness of agencies in conducting negotiations are necessary. Towards this end, this article argues for empowerment of citizen groups and presents an empirical means of evaluating the fairness of regulatory negotiations.","PeriodicalId":45668,"journal":{"name":"Harvard Environmental Law Review","volume":"93 1","pages":"33"},"PeriodicalIF":1.3,"publicationDate":"2001-09-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"79432111","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}
As one of the defining issues in environmental regulation over the past decade, the environmental justice movement has sought to bring civil rights and broader social justice issues to the forefront of environmental protection. The movement's challenge to traditional environmental regulation has distinguished itself because it has come from another group of political liberals rather than conservatives. Its goals remain largely unrealized, however, even though concerns about race and distributional equity in environmental protection are unlikely to go away. As explanations for this lack of success, scholars have pointed to specific legal doctrines as well as larger issues of lack of political power. Unfortunately, such accounts ignore the genuine concern and sincere efforts of many environmentalists and regulators in regard to these issues and the structural obstacles impeding attempts to change the environmental regulatory system. This essay seeks to provide a better understanding of these difficulties by examining the paradigms that civil rights law and environmental law have been based upon. A close analysis of Brown v. Board of Education, the foundational model for modern civil rights law, and the conceptions of environmental degradation put forth by Garrett Hardin's Tragedy of the Commons and Rachel Carson's Silent Spring illustrates the contrasting structures, methodologies, and value premises of civil rights and environmental law. They provide important insights into the debate about the environmental justice movement and the difficulties that environmental regulators have encountered in addressing distributional equity and fairness concerns much more broadly. Efforts by environmental regulators to address the concerns of the environmental justice movement are unlikely to succeed without measures addressing these deeper-lying tensions.
{"title":"Melding Civil Rights and Environmentalism: Finding Environmental Justice's Place in Environmental Regulation","authors":"Tseming Yang","doi":"10.2139/SSRN.285000","DOIUrl":"https://doi.org/10.2139/SSRN.285000","url":null,"abstract":"As one of the defining issues in environmental regulation over the past decade, the environmental justice movement has sought to bring civil rights and broader social justice issues to the forefront of environmental protection. The movement's challenge to traditional environmental regulation has distinguished itself because it has come from another group of political liberals rather than conservatives. Its goals remain largely unrealized, however, even though concerns about race and distributional equity in environmental protection are unlikely to go away. As explanations for this lack of success, scholars have pointed to specific legal doctrines as well as larger issues of lack of political power. Unfortunately, such accounts ignore the genuine concern and sincere efforts of many environmentalists and regulators in regard to these issues and the structural obstacles impeding attempts to change the environmental regulatory system. This essay seeks to provide a better understanding of these difficulties by examining the paradigms that civil rights law and environmental law have been based upon. A close analysis of Brown v. Board of Education, the foundational model for modern civil rights law, and the conceptions of environmental degradation put forth by Garrett Hardin's Tragedy of the Commons and Rachel Carson's Silent Spring illustrates the contrasting structures, methodologies, and value premises of civil rights and environmental law. They provide important insights into the debate about the environmental justice movement and the difficulties that environmental regulators have encountered in addressing distributional equity and fairness concerns much more broadly. Efforts by environmental regulators to address the concerns of the environmental justice movement are unlikely to succeed without measures addressing these deeper-lying tensions.","PeriodicalId":45668,"journal":{"name":"Harvard Environmental Law Review","volume":"30 1","pages":"1"},"PeriodicalIF":1.3,"publicationDate":"2001-08-22","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"84131564","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}
Legal scholars have focused their attention on regulatory standards. Less attention has been given to the inevitable "slippage" between the standards and the ensuing implementation. This essay presents an alternate view that highlights the slippage. Part I discusses two forms of slippage. "Negative" slippage is a ubiquitous feature of environmental law: something that is legally mandated simply fails to happen. "Affirmative" slippage is more interesting: the required standards are renegotiated rather than ignored, resulting in a regulatory regime that may bear little resemblance to the "law on the books." Part II explores how the concept of slippage might inform discussions of legal doctrine, environmental policy, and environmental pedagogy. It turns out that the Supreme Court has had a certain degree of complicity in the creation of slippage. Slippage also has implications for policy debates over environmental standards. If standards are not automatically translated into compliance, our understanding of their costs and benefits may shift. Finally, in terms of teaching, we need to devote more attention to compliance-related issues.
{"title":"Taking Slippage Seriously: Noncompliance and Creative Compliance in Environmental Law","authors":"D. Farber","doi":"10.2139/SSRN.163972","DOIUrl":"https://doi.org/10.2139/SSRN.163972","url":null,"abstract":"Legal scholars have focused their attention on regulatory standards. Less attention has been given to the inevitable \"slippage\" between the standards and the ensuing implementation. This essay presents an alternate view that highlights the slippage. Part I discusses two forms of slippage. \"Negative\" slippage is a ubiquitous feature of environmental law: something that is legally mandated simply fails to happen. \"Affirmative\" slippage is more interesting: the required standards are renegotiated rather than ignored, resulting in a regulatory regime that may bear little resemblance to the \"law on the books.\" Part II explores how the concept of slippage might inform discussions of legal doctrine, environmental policy, and environmental pedagogy. It turns out that the Supreme Court has had a certain degree of complicity in the creation of slippage. Slippage also has implications for policy debates over environmental standards. If standards are not automatically translated into compliance, our understanding of their costs and benefits may shift. Finally, in terms of teaching, we need to devote more attention to compliance-related issues.","PeriodicalId":45668,"journal":{"name":"Harvard Environmental Law Review","volume":"13 10","pages":"297"},"PeriodicalIF":1.3,"publicationDate":"1999-06-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"72371772","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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