This Friday and Saturday, the New York University School of Law is hosting a symposium, "Breaking the Logjam: Environmental Law for the 21st Century." Co-sponsored with New York Law School and the NYU Environmental Law Journal, the symposium seeks to "diagnose the roots of current failures and present specific changes in US law" to address existing environmental challenges. Speakers were tasked with analyzing specific environmental issues and devising concrete reform proposals based upon four broad principles:
Cross-cutting regulatory approaches that address underlying causes. Since many environmental problems cut across the boundaries established by existing regulatory programs, existing statutes must be restructured to match the true character of environmental problems and their underlying causes.Organized by Richard Stewart and Katrina Wyman of NYU, and David Schoenbrod of NYLS, the symposium will feature remarks and presentations by a variety of environmental law specialists, including Richard Lazarus (Georgetown), Jonathan Cannon (Virginia), Andrew Morriss (Illinois), Cary Coglianese (UPenn), Daniel Esty (Yale), J.B. Ruhl (FSU), John Leshy (Hastings), among many others. The full schedule is here.Openness about trade-offs. New statutes must acknowledge that trade-offs are inevitable and ensure that they are made in public view based on reliable information.
Scaling regulatory authority to the problem. Statutes should empower states and trim the federal government’s role to what it can effectively do. Correspondingly, the federal government should work with other countries and international organizations to address global problems.
Expanding the use of market incentives and information. The new statutes and regulatory programs need to harness the power of markets and information disclosure to increase environmental protection.
My own contribution to the symposium is a paper urging dramatic devolution of federal hazardous waste laws. A draft, which is still a work in progress, is available here. I will post more on my specific recommendations later in the week.
Related Posts (on one page):
- Breaking the Logjam in Hazardous Waste Policy:
- Breaking the Logjam - Conference and Blog:
- Breaking the Logjam in Environmental Law:
New incentives to buy Hummers and taxes on hybrids and low watt bulbs outlawed, etc., etc.
What makes this time different?
'...and therefore never send to know for whom the Spotted Owl Hoots; it hoots for thee.'
I noticed this line in your abstract. On what basis do you make this statement? Complete ignorance or are you intentionally making a false hypothesis so you can support the conclusion of your paper?
standards for hazardous waste storage, management and disposal. Targeted interstate remedies
would be preferable.
And why is this?
I make this statement on the grounds that there are relatively few instances of soil or groundwater contamination that crosses state lines. Further, if you read the paper, you will see that I propose federal involvement to address interstate contamination where it, in fact, occurs. So even if my statement were incorrect, my proposal addresses whatever interstate concerns persist.
JHA
Soil contamination maybe. but groundwater often moves accross hundreds of miles and into surface waters (look at the plume of tritium headed towards the Columbia river at the Hanford site). Also the source of the contamination almost always comes from multiple states. I can safely say I have never worked on a former landfill site (and I worked for EPA Region IV Superfund for five years) that did not have waste from multiple states. To claim that contamination caused by hazardous waste is a local problem is disingenuous.
It's pretty funny when someone will dismiss scientific evidence of one thing (humans causing climate change) then accept without debate scientific evidence for another thing (sun spots causing climate change) just because.
and the very next thing that happens is a race to the bottom among poor states looking for heavy industry to relocate to their states.
thirty years or so later, cancer alley Nah, couldn't possibly happen.
sometimes there are REALLY good reasons for national standards. Preventing state legislatures from selling out future generations seems to me to be pretty good policy.
Where, exactly, in the process would the tradeoffs be acknowledged?
The National Academy of Sciences recommended more use of RCRA sites for less radioactive wastes in 2006 (2006 Press Release). They also called for a realignment of both hazardous and radioactive waste classification based on risk previously (but I couldn't find the cite).
Basically though, improvements in the waste management area for hazardous waste, if we are going there, should consider revisiting all three major legislative acts - CERCLA, RCRA, and the Atomic Energy Act; and not only the two managed by EPA.
This is my opinion and not necessarily a statement or position by my employer.
Whether this is true or not, it should also be noted that the contamination is almost always caused by the production of products in interstate commerce.
Any evidence that a race to the bottom would actually occur? Considering that substantial state regulation exists that is well above federal minimums, it doesn't seem very realistic.
I find it amusing that the source you linked to states that there isn't actually any evidence that cancer alley exists.
Randy -- I'm willing to consider "scientific evidence" of AGW when convincing scientific evidence is, in fact, presented. Whether, in fact, global warming is occurring is far from established. See, e.g., the following from The Austrialian, www.theaustralian.news.com.au/ "Climate facts to warm to" March 22, 2008. The person being interviewed is Dr. Jennifer Marohasy, Ph.D. (Bio.).
AGW is only a hypothesis based on computer models which fail to provide reliable predictions (even when historic data is used, and the results are compared against actual measurements).
You obviously have never been to Mississippi, Alabama, Arkansas, Louisiana, Georgia, or a number of other states in the south and west. Look at the poorest, least educated states and I guarantee you that absent federal regulation, they will race to the bottom. They don't have regulations "well above the federal minimums" now, and they are so corrupt, and their environmental agencies so underfunded, that the Federal standards often go unenforced.
the trade-off between environmental protection and economic progress will differ from those wealther states.
First, many of the questions raised are answered in the paper itself, so I commend it to those who are interested in this subject.
For those who already read the paper, and offered substantive recommendations, thanks! I'll blog more about it later in the week, and I hope you'll continue to give feedback. So you know, our papers for the conference are page limited, so I felt constrained in my ability to flesh out certain aspects of the paper, but I will try and address your suggestions.
Third, for JFT, you initially charged me with either "complete ignorance" or intentionally making a false statement for suggesting that hazardous waste contamination of soil and groundwater "rarely" cross state lines. I offered a basis for my statement, and all you could offer was one example of an extreme site. This hardly disproves my initial claim. That waste sites often have waste that originate in other states is irrelevant. What matters are the characteristics of the waste and how it is managed and disposed of, not where it came from. And, if once at a waste site, the waste rarely causes contamination across state lines, there is less cause for federal intervention, for reasons I explain in the paper.
Fourth, I think some of the commenters misunderstand what "race to the bottom" means. The claim that there is a "race to the bottom" is not simply that some states have adopted suboptimally lax regulatory standards. Rather, it is that interjurisdictional competition between the states induces states, collectively, to adopt suboptimally lax regulations systematically. In other words, it is not enough for states A and B to adopt weak protections. In order to have an RTB, A and B's decisions to adopt weak regulations must put downward pressure on other states to follow suit.
At this point there is a wealth of theoretical and empirical work on whether RTB exists in environmental poicy. As I've summarized in other papers (e.g. here and here), the preponderance of evidence suggests no such race exists today, if it ever did.
It is certainly possible, in deed likely, that the relaxation of a federal regulatory floor would allow some states to adopt less stringent regulatory measures. Yet so long as that policy decision is the result of a suitably responsive and open political process, and the decision does not impose spillovers onto other jurisdictions, I am willing to let individual jurisdictions make such choices -- just as I am willing to allow individual jurisdictions to adopt more stringent measures. It's not really an answer to say one wants a federal "floor, without a ceiling," as the mere existence of a federal regulatory floor alters the incentives faced by state regulators, potentially reducing the aggregate level of protection over time (a point I demonstrate here).
More to come in a subsequent post.
JHA
Do any of the papers address the unintended consequences of environmental regulations, or risk-risk trade-offs? If so, are there drafts available online?
Thanks.
I offered one example of an extreme site because it is the most egregious and alarming, similar problems exist at Oak Ridge, Savannah River, and any site that is located near a river. You really should take a course in groundwater (I am sure you could audit one in your geology or engineering department) before you opine on such things.
I am willing to let individual jurisdictions make such choices -- just as I am willing to allow individual jurisdictions to adopt more stringent measures.
That's easy for you to say. You live in Ohio. One of the states that most certainly will end up on the top of the heap. I live in Louisiana. We will be on the bottom and jettison even the meager restrictions we already have. In fact, if you want to see what happens when a state with stringent regulations like Ohio is just a short drive away from one, Kentucky, with lax enforcement, have a look at this.
You may have papers and "theoretical and empirical work", I have acres and acres of abandoned drums, toxic chemicals leaking onto the ground, waste illegally dumped on beaches and in ditches, con artists with another "proprietary" method for detoxifying hazardous wastes.
This really defies common sense. The Cheasapeake drainage covers hundreds of square miles, from the heart of NYS, Delaware, PA, WV, NJ, VA and MD. If the soil and groundwater are contaminated anywhere in these states, it eventually leaches into the cheasepeake bay area, and that's drinking water for millions of people.
Perhaps you are saying that soil contamination never moves from its initial deposit, but that really isn't true. Or am I missing something here?
I did not see that your elaborate hypotheticals took into consideration the time lag of environmental degradation. Different contaminants may have dramatically different lag times before the costs of cleanup are incurred. Groundwater contamination can have an especially long lag between date of discharge and date in which the costs of the adverse effects of discharge are incurred.
And a rational (Louisiana, frex) legislator may be perfectly willing to trade expenses to be borne by future taxpayers against current tax revenues, even if the net present value of the expenses is greater than the NPV of the revenue. After all, he's in office when the revenues come in, and may well be dead by the time the expenses are incurred.
You want to encourage this?
Identifying a handful of instances in which contamination from hazrdous waste has polluted rivers -- a point I do not and did not contest -- still does not establish your initial claim. Nor does citing the Valley of the Drums (an example of the consequences of illegal dumping) demonstrate the harm of allowing states to set their own standards. Con men and illgeal dumpers are just that -- folks that don't follow the law. Nor does it demonstrate the inherent superiority of federal standards. Indeed, I find it curious that you view the federal government as the savior when you are so quick to point to heavily contaminated federally owned sites as examples of particularly bad contamination.
Randy R. --
Of course soil and groundwater contamination can migrate, but it also diffuses and (in many cases) disintegrates such that it is not a particularly serious problem far from the locus of the actual contamination. The fact is that such contamination from hazardous waste sites is infinitesimal in comparison to other sources of water pollution -- so much so that controlling and remediating hazardous waste sites hardly registers in the priorities of those who actually want to do something about the Chesapeake Bay and other watersheds. Whether one surveys regional EPA officials (as has been done) or looks at the pollution sources identified by the major environmental groups focused on protectingt the Chesapeake and other important watersheds, hazardous waste is way, way, way, way down on the list of priorities-- and for good reason. It is simply not much of a problem. Again, a handful of sites are exceptions, and do contribute meaningfully to interstate water pollution problems, but they are the exception, not the rule.
Francis --
The primary point of the "When Is Two a Crowd?" paper was to demonstrate the possibility of an outcome that the relevant literature systematically excludes. Further, as the paper notes, the prevalence and frequency of the "crowding out" effect I discuss should be the subject of future empirical study.
As for your rational legislator, assuming your premises, why do we assume federal legislators are any more immune to these failings? Given state innovation on groundwater, an area where we actually have decent empirical work showing more of a "race to the top" than a "race to the bottom," what is the actual evidence of a problem?
JHA