The D.C. Circuit denied trade associations' petition for review of a nationwide permit issued by EPA for the discharge of pollutants incidental to the normal operation of vessels. The associations, which represent commercial ship owners and operators, raised a number of procedural challenges, al...
A Washington appellate court affirmed a lower court decision holding the state transportation agency liable to two utilities for contribution costs incurred at the Thea Foss Waterway, a Superfund site, under the state's Model Toxics Control Act (MTCA). The agency argued that the lower court erred in...
The Ninth Circuit held that environmental groups may intervene in a citizen suit against the U.S. Forest Service concerning restricted motorized and mechanized vehicle use in a section of the Gallatin National Forest. In the underlying action, the citizens group argued that the Forest Service's plan...
The D.C. Circuit held that a single sighting of a protected species is insufficient to render a property "occupied" for purposes of designating critical habitat under the ESA. In 2007, the FWS designated 143 acres of plaintiffs' property as critical habitat for the San Diego fairy shrimp under the E...
This Article proposes an “environmental practices money security interest” (EPMSI) that lawmakers could add to Uniform Commercial Code (UCC) Article 9.1 The EPMSI would grant priority over earlier investors to financers whose extensions of credit enable debtors to invest in improving environmental impact.
Professor Wagner presents a strong and provocative set of arguments on how information overload is creating barriers to public participation, obfuscating the most important information for decisionmaking, and capturing and clogging the administrative rulemaking process. The forest can, indeed, become obscured by the trees when it comes to effective, efficient, and fair administrative agency decisionmaking.
There are no provisions in administrative law for regulating the flow of information entering or leaving the system, or for ensuring that regulatory participants can keep up with a rising tide of issues, details, and technicalities. Indeed, a number of doctrinal refinements, originally intended to ensure that executive branch decisions are made in the sunlight, inadvertently create incentives for participants to overwhelm the administrative system with complex information, causing many of the decisionmaking processes to remain, for all practical purposes, in the dark.
We wish to begin with a note of thanks to Richard Morgenstern, Jeffrey Hopkins, Laurie Johnson, Daniel Lashof, and Kristen Sheeran for their comments on our article, Climate Change and U.S. Interests. The comments have helped our own thinking on the subject, and it is gratifying to know that our paper stimulated such thoughtful responses. In the few pages we have for our reply, we focus on the claims that are most important and in the greatest tension with our article.
Jody Freeman’s and Andrew Guzman’s article, Climate Change and U.S. Interests, was engaging and convincing in many aspects, though I am not sure that the parts that engaged and convinced me were the parts that Freeman and Guzman intended. While I find their introductory premise flawed, these flaws are not fatal. Still, the material that follows must necessarily be updated and enhanced.
Developing a rational, globally efficient time path for pricing or controlling greenhouse gas (GHG) emissions presents daunting challenges to policy makers, with large scientific uncertainties, and the absence of consensus over the long term goals of climate policies. In their article Climate Change and U.S.