by Linda K. Breggin, David L. Staab, Emma T. Doineau, and Michael P. Vandenbergh
In this Article, we draw on the results of the ELPAR article selection process to report on trends in environmental legal scholarship for academic years 2008-2013. Specifically, this Article reports on the number of environmental law articles published in general law reviews and environmental law journals. We find that although the total varied somewhat from year to year, more than 400 environmental law articles were published each year during the 2008-2013 period.
Prof. Cary Coglianese’s article—A Truly “Top Task”: Rulemaking and Its Accessibility on Agency Websites—explains the importance of the agency rulemaking process and describes obstacles encountered by members of the public who wish to participate in that process. During the almost 40 years I have been practicing administrative law, I have participated in hundreds of agency proceedings. Over the years, agencies have improved the procedures for obtaining such information, but there is still room for improvement.
In answer to the question “What kind of participation should we value?” our response would be: “All of it.” While nudging public participation that provides substantive feedback is certainly a worthwhile effort, agencies should also continue to facilitate the “cheap and easy” participation that Farina et al. characterize as to-be-resisted and of little value. We do not have to choose: public participation is not a zero-sum game.
Farina et al. mostly concentrate on the value of mass comments to the agency rule writer, and seem resigned to the fact that mass comments will continue. They suggest an intriguing, multitiered system called Regulation Room that can help rule writers distinguish between comments that express preferences and comments that provide expertise. But that isn’t the whole story. In this response, I argue that public participation should both facilitate meaningful input into a rule and help shape public dialogue around the rule.
Cynthia Farina and her colleagues provide a sensible analysis of the problems attendant increased public participation in rulemaking. The “magical thinking” they address—more public engagement in rulemaking equals better policies and regulatory outcomes—strikes at the very heart of democratic access to decisions and decision-makers. Their analysis provides a strong basis for concluding that there is some public input that is, or perhaps should be, more highly valued than other public input. While the conclusion that more public participation is not a good thing in rulemaking may be jarring, the conditions Professor Farina outlines for participation that counts are a sound basis for principles that should be addressed in designing public outreach in rulemaking. The three basic principles they argue will ensure that additional public participation benefits the rulemaking process make a great deal of sense, particularly on when and how additional information and communication technologies should be deployed.
Prof. Jed Purdy makes a valuable contribution bypointing out that environmental law shapes public values, with votes in Congress and decisions by courts merely chapters in a longer story. His is a valid, interesting and important point, although not as original as his subtitle (“A New Relationship for Environmental Ethics and Law”) lets on.
Professor Purdy’s interesting article, Our Place in the World: A New Relationship for Environmental Ethics and Law, provides a nice springboard to examine his points in more depth in the context of climate change. Professor Purdy argues that ethics and law is a two-way street, and they feed each other and interact with each other. In my experience, this is very true.
In Our Place in the World, Purdy laments the resort to cost-benefit analysis (CBA) as the primary functional tool in policy and decisionmaking and encourages the creation of a new way of thinking about environmental ethics. The issue with Purdy’s argument is that he characterizes CBA as the inadequate alternative left over when environmental lawyers and policymakers turned away from the questions the ethicists were pursuing early in the modern environmental movement. By characterizing CBA as such, however, Purdy both recreates and illustrates the very dilemma that he seeks to resolve.
Government websites provide an important location for public access and participation in the governmental process. However, despite a growing body of research on agency websites, researchers have so far ignored agency websites as a method of public contact over rulemaking. In this article, I report results from two systematic surveys conducted on regulatory agencies’ websites which reveal how much more agencies could do to improve public access to rulemaking. Agencies commonly succumb to pressures to organize their websites around their “top tasks”—but, regrettably, they too often define these key tasks in terms of the volume of user demand for information and functionality. Although such an emphasis on user demand makes sense in other settings and for other purposes, rulemaking is entirely different.
by Cynthia R. Farina, Mary Newhart, and Josiah Heidt
An underlying assumption of many open government enthusiasts is that more public participation will necessarily lead to better government policymaking: If we use technology to give people easier opportunities to participate in public policymaking, they will use these opportunities to participate effectively. Yet, experience thus far with technology-enabled rulemaking (e-rulemaking) has not confirmed this “if-then” causal link. This Article considers how this flawed causal reasoning around technology has permeated efforts to increase public participation in rulemaking.
The values that orient a political community are the products of that community’s struggles and efforts at persuasion and discernment. The history of environmental law and politics and a structured sense of the vocabulary of ethical change can guide us in this terrain. Environmental law will inevitably shape the experiences and inflect the interpretations that will give these issues their shape in the next generation of what John Rawls would have called our metaphysics—a common yet contested view of the world, which we cannot do without but should not expect ever to resolve into just one form. Shaping the law to play this role actively would mean embracing both our creative ethical capacity and our sense of responsibility to make sense of and do justice, in every sense of that word, to the natural world.
by John Bronsteen, Christopher Buccafusco, and Jonathan S. Masur
Every proposed law raises the question: Would its benefits outweigh its costs? To answer that question, lawmakers need a way of comparing seemingly incommensurable things like health and buying power. The most common method is to ask how much people are willing to pay for goods. This approach is called cost-benefit analysis (CBA), and it has long been the dominant method of systematic analysis for evaluating government policy. Despite CBA’s prominence, it has been criticized harshly from the moment it was first required by executive order to the present day, and countless times in between. In this Article, we propose an alternative method for comparing consequences of a law. This method, which we label “well-being analysis," directly analyzes effects of proposed laws on people’s quality of life.
It is impossible to talk about developing renewable energy resources in the United States, especially wind power, without also talking about developing electric transmission infrastructure. New transmission lines are needed to link dispersed renewable energy resources with electric load centers, but the traditional approach to transmission planning and siting is ineffective—and, in some cases, obsolete. A new approach to integrate sources of renewable energy into the transmission grid is necessary. This Article addresses the regional- and state-level challenges of planning, siting, and paying for large-scale transmission lines to support renewable energy development. We favor a shift away from single state authority for interstate transmission siting, which would recognize the regional and national nature of today’s transmission grid.