The Negotiable Implementation of Environmental Law
In theoretical accounts of environmental law, traditional environmental-law education, and much of the discourse of environmental-law implementation, negotiation is absent, except in a few celebrated and seemingly exceptional settings. When scholars and policy advocates do address the roles of negotiation, they tend to default to two competing conceptions. In one—the “command-and-control” view—environmental law is problematically centralized and rigid, and negotiation exists only in exceptional circumstances. In the alternative conception—call it the “slippage” view—the rigid protections exist on paper but not in practice, and environmental-law implementation involves government regulators allowing regulated industries to get away with varying degrees of noncompliance. In this latter view, negotiation is common, but it serves only to decide how far real-world practices can deviate from the law. However, negotiation is a defining feature of environmental law. This Article, which is adapted from Dave Owen, The Negotiable Implementation of Environmental Law, 75 Stan. L. Rev. 137 (2023), uncovers ample anecdotal evidence that negotiation-based systems do not serve the underlying values of environmental law nearly as well as they could or should. It asserts a massive buildout of new infrastructure will probably require navigating many of the negotiation points described in the Article, and argues that if these negotiation points can be navigated efficiently and in ways that produce both better economic outcomes for regulated industries and stronger environmental protections, the nation and the world will benefit.