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Volume 42, Issue 3 — March 2012


A Holistic Policy Agenda to Promote Green Business: Reflexive Law Fills the Gap

by Dennis D. Hirsch

How can environmental law and policy best promote green business? This is an important question. Yet, the mechanisms that scholars have suggested thus far—the market, technology-based rules, and outcomebased regulations—do not provide a satisfactory answer. None of them can successfully foster green business as companies practice it today. Reflexive law can fill this gap. Reflexive law refers to those laws and policies that push firms to engage in self-regulation. It can foster green business in ways that the other methods cannot. The best strategy will be one that incorporates the three suggested approaches and reflexive law.

A Right to a Clean Environment in the Middle East: Opportunities to Embrace or Reject

by Yaser Khalaileh

Following the Stockholm Declaration in 1972 emphasizing an essential need for a clean environment, a number of international proclamations were issued that contributed to international recognition of a substantive right to a clean environment as embodied 20 years later in the Rio Declaration. Since that time, there has been a movement for recognition of procedural rights to provide information to the public as it attempts to participate in the decisionmaking process with respect to environmental matters.  Development and exercise of these procedural rights not only provide opportunities to protect environmental rights, but can also further the development of a substantive right  to a clean environment.

China’s Energy Conservation and Carbon Emissions Reduction System: Development and Status Quo of the Regulatory and Institutional Framework

by Hao Zhang

Recent literature describing climate change governance at the international level emphasizes the need for more comprehensive domestic action to reduce carbon emissions. To date, China’s voluntary carbon reduction schemes indicate a more centralized approach in collaboration at the ministerial level, but also suggest a piecemeal voluntary model at the local level. Fragmented climate change governance at the local level opens the door to develop laws and regulations to explore relevant theoretical positions and implementation in the field of carbon reduction. The development also generates more complex issues around linkage and compatibility among the schemes at the regional level to achieve the overall national target of carbon reduction in China.

When the Law Is Silent, Trespassers W . . . : Law and Power in Implied Property Rights

by Ann Brower and John Page

In the magical world of Winnie the Pooh, Piglet lives in a house signposted “TRESPASSERS W.” The golden silence that follows the W allows Pooh and his friends to wonder about the sign’s meaning, which Piglet insists honors his grandfather, Trespassers William. Piglet’s grandfather aside, silence in the law allows competing interpretations to arise and flourish in the realms of rhetoric, narrative, power, and politics. Implied property would seem unpredictable, because it is an amalgam of volatile elements: norms, not law; narratives, not principles; and the raw power of winners and losers, not the settled restraint of authority. Yet, the doctrinal instability of implied property is easily manipulated, bringing theories of interest-group politics and political ecology to bear. The case study of The New Zealand Fish and Game Council v. Attorney General and Others (2009) illustrates the proposition that power, narratives, assertion, strategy, and property itself work together to allow implied property to prevail over explicit law, and private desires over public interests. The story of access to the South Island high country also illustrates a broader pattern in implied property—that an assertion of exclusion establishes power that often becomes a private right recognized at law.

Business Environmentalism: Good Works and Greenwash

by Kurt Strasser

Products, processes, and whole companies are voluntarily going green today, leading the way to a whole new approach to protecting the environment. Company claims of green products, processes, and philosophy are merely so much greenwash, with little or no real substance. Both of these sharply contrasting views of business  environmentalism command passionate support today. Three questions about business environmentalism become apparent: Why is business environmentalism  important? Second, what are companies doing today and are they getting better environmental performance? Finally, what policies make sense: specifically, should we   require accurate information about business environmentalism for green consumers, green investors, and green civil society?


Regulating Greenhouse Gas Emissions From Existing Sources: Section 111(d) and State Equivalency

by Jonas Monast, Tim Profeta, Brooks Rainey Pearson, and John Doyle

On December 9, 2011, the Nicholas Institute for Environmental Policy Solutions convened a broad range of stakeholders representing numerous viewpoints to explore  issues surrounding CAA §111(d), including options for states to demonstrate that existing GHG policies are equivalent to the §111(d) requirements. This Article builds upon the discussion during the December 9 workshop and considers some of the major challenges associated with categories of potentially “equivalent” state programs. Although setting the standard and deciding what level of detail to include in the guidance to the states is an important part of the §111(d) rulemaking, the goal of this Article is not to predict how the Agency will act or to offer an opinion as to how the Agency should act. Rather, the goal is to examine the options available for states to demonstrate
that existing GHG policies are equivalent to the §111(d) requirements, and the challenges that may face the states and the Agency regarding equivalency.


EPA and the Economy: Seeing Green?

by John C. Cruden, Kenneth Green, Isaac Shapiro, Mary Neumayr, and Dick Morgenstern

Supporters of EPA note that the Agency is responsible for only 0.06% of the U.S. national debt and 0.26% of the federal government’s budget, and argue that cutting environmental spending could make our economy worse by increasing medical costs if the Agency lacks the resources to enforce laws that protect public health.  Opponents argue that the EPA regulatory process has exploded, creating so much red tape for businesses that they are unable to hire workers and stimulate our economy. On December 9, 2011, ELI convened a seminar to examine the effect of EPA on the economy and jobs. Expert panelists discussed the economic ramifications of EPA’s regulations, whether regulations create or kill jobs, and recent legislative attempts to increase congressional oversight and restrain EPA action.