By Emily Hammond and David L. Markell
Judicial review is considered an indispensible legitimizer of the administrative state. Not only is it a hallmark feature of the Administrative Procedure Act (“APA”), but the various standards of review reinforce democratic norms, promote accountability, and act as a check against arbitrariness. Unreviewable agency actions, therefore, must find their legitimacy elsewhere. This article evaluates the promise of “inside-out” legitimacy as an alternative or complement to judicial review. We theorize, based on insights from the administrative law and procedural justice literatures, that administrative process design can do much to advance legitimacy without the need to rely on judicial review to check administrative decisionmaking. Next, we connect the theoretical conceptions of legitimacy to administrative behavior by offering metrics for testing intrinsic legitimacy. To demonstrate how these metrics might be applied, we present an empirical study of an innovative administrative fire-alarm process that enables interested parties to petition the Environmental Protection Agency (“EPA”) to withdraw states’ authorization to administer the major environmental statutes. While this process may trigger a variety of responses by EPA, there is generally little recourse to the courts for citizens dissatisfied with the process or its outcomes. Our findings suggest that, even without external checks, EPA engages in numerous behaviors indicative of intrinsic legitimacy. In addition, the process itself produces real substantive outcomes. Armed with these findings, we conclude with an assessment of institutional design features that may contribute to inside-out legitimacy.
Cite as: Emily Hammond and David L. Markell, Administrative Proxies for Judicial Review: Building Legitimacy from the Inside-Out, 37 Harv. Envtl. L. Rev. 313 (2013).
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By Alex L. Wang
During China’s 11th five-year plan (2006–10), bureaucrats began to take substantial actions on environmental protection, making major investments in pollution control infrastructure and forcing the shutdown of thousands of outdated facilities and production lines. This was not accomplished through meaningful reform of a notoriously weak environmental law regime. Rather, Chinese authorities turned to cadre evaluation — the system for top-down bureaucratic personnel assessments — to set high-priority, quantitative environmental targets designed to mobilize governors, mayors, and state-owned enterprise leaders in every corner of China’s massive bureaucracy.
While conventional analysis has primarily viewed this effort through the lens of environmental protection, this Article argues that “environmental cadre evaluation” is better understood as something more fundamental. Chinese authorities have embraced environmental cadre evaluation as a tool for limiting risks to the party-state’s hold on power, using environmental protection in an unexpected way to deliver economic growth and social stability. Environmental objectives have been elevated, but primarily to the extent they support these other values as well.
But implementation problems inherent to this top-down approach abound. Local agents falsify information and shut down pollution control equipment. Closed factories are secretly reopened. These problems create an imperative for reform. Of the initiatives already under way, governance reforms that strengthen public supervision have particular advantages for resolving institutional pathologies that limit the effectiveness of China’s environmental efforts.
By examining why and how Chinese leaders have elevated environmental priorities through the cadre evaluation system, this Article seeks to offer insight into a number of broader ongoing debates — about environmental regulation in developing countries, accountability and regime survival in authoritarian states, and legal development in China.
Cite as: Alex L. Wang, The Search for Sustainable Legitimacy: Environmental Law and Bureaucracy in China, 37 Harv. Envtl. L. Rev. 365 (2013).
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By Margot J. Pollans
Throughout the history of federal statutory environmental law, citizen suits have played a key role in enforcement. Through statutory interpretation, however, courts have narrowed the circumstances under which citizens can sue. This Article explores one such restraint: Courts have severely limited citizen suits under the Resource Conservation and Recovery Act (“RCRA”) by reading very broadly a jurisdiction-stripping provision of RCRA’s companion statute, the Comprehensive Environmental Response Compensation and Liability Act (“CERCLA”). This Article argues that courts have read that provision too broadly, not only violating traditional principles for resolving inter-statutory conflict but also undermining the purposes of both statutes by eliminating what could be an essential mechanism for combating delay during toxic site cleanups.
Cite as: Margot J. Pollans, A “Blunt Withdrawal”? Bars on Citizen Suits for Toxic Site Cleanup, 37 Harv. Envtl. L. Rev. 441 (2013).
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By Linda Breggin and D. Bruce Myers Jr.
The last century marked a sea change in the way agricultural operations are conducted. This “industrialization” of agriculture has significantly increased efficiency and yields, but it also has generated — as an unintended byproduct — pollution. The pollution resulting from commodity crop operations can have harmful effects locally and downstream. Typically, when the production of a good generates adverse environmental effects, the firm that profits from the activity is required to minimize the impacts. This is rarely the case in the agriculture sector, which is exempt from key provisions of the federal environmental laws. As a result, the harms are externalized and the public bears the pollution costs. The federal taxpayer also supports the agricultural sector through myriad farm subsidy programs. Large-scale farms — those with annual sales of $500,000 or more — represented six percent of U.S. farms in 2009 but received more than half of government commodity payments. These subsidy recipients typically are not required as a condition of receiving payments to implement measures that will protect the environment from pollution generated by on-farm activities. The authors present two recommendations for reform, neither of which would require additional federal subsidy payments. First, large-scale commodity crop operations that opt to receive any form of federal farm subsidy should assume responsibility for implementing a set of baseline stewardship measures to reduce nutrient pollution. Second, these same farms should report on the quantity, type, and timing of fertilizers they apply.
Cite as: Linda Breggin and D. Bruce Myers Jr., Subsidies with Responsibilities: Placing Stewardship and Disclosure Conditions on Government Payments to Large Scale Commodity Crop Operations, 37 Harv. Envtl. L. Rev. 487 (2013).
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By Brendan C. Selby
Cite as: Brendan C. Selby, Internal Agency Review, Authoritativeness, and Mead, 37 Harv. Envtl. L. Rev. 539 (2013).
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By Hillary H. Harnett
The Nuclear Regulatory Commission (“NRC” or “the Commission”) licenses and regulates the nation’s commercial nuclear power plants. Over a span of several decades, it has grappled with its environmental obligations and faced recurrent litigation regarding its responsibilities under the National Environmental Policy Act (“NEPA”). In 2012, the D.C. Circuit heard another NEPA challenge, New York v. U.S. Nuclear Regulatory Commission, just after a series of political events left the future of nuclear waste disposal less certain than ever before. In its decision, the court vacated a recent NRC rulemaking, holding that the Commission had violated NEPA through its failure to adequately assess the environmental impacts of long-term nuclear waste storage. This decision will lead to the NRC’s first Environmental Impact Statement analyzing the effects of continued nuclear power generation in the event that the nation fails to eventually establish a permanent geologic repository for nuclear waste.
This Comment argues that the decision was an appropriate NEPA holding and a welcome departure from earlier decisions that displayed more extreme deference to the Nuclear Regulatory Commission despite similarly lackluster environmental analyses. The decision also highlights a larger issue: the active role that the judiciary must take in response to legislative inaction in the environmental arena.
Cite as: Hillary H. Harnett, New York v. U.S. Nuclear Regulatory Commission, 37 Harv. Envtl. L. Rev. 589 (2013).
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By David Baake
The Fifth Amendment’s Takings Clause provides that private property shall not be “taken for public use, without just compensation.” For most of American history, the Supreme Court construed this clause narrowly, requiring the government to pay compensation only where it permanently appropriated or destroyed property. During the twentieth century, however, the Court began to embrace a significantly broader interpretation of the Takings Clause. In 1922, the Court introduced the concept of regulatory takings, holding in Pennsylvania Coal Company v. Mahon that the government was required to pay compensation if its laws or regulations went “too far” in redefining the range of interests included in the ownership of property. A series of cases during the World War II era established that the government was required to retroactively compensate a property owner for a temporary physical taking. And in 1987, the Court combined these two innovations, holding in First English Evangelical Lutheran Church of Glendale v. County of Los Angeles that the government was required to retroactively compensate a property owner for a temporary regulatory taking.
Last Term, in Arkansas Game and Fish Commission v. United States, the Supreme Court was required to consider the continuing validity of this last development. The Court was confronted with two conflicting precedents: First English, which established the general availability of retroactive compensation for temporary regulatory takings, and Sanguinetti v. United States, a 1924 case holding that the Takings Clause did not require compensation for government-induced flooding unless the flooding constituted a “permanent invasion of the land.” The Court reaffirmed First English while rejecting Sanguinetti, holding by a vote of 8-0 that the federal government was required to retroactively compensate a landowner whose property it temporarily took by flooding.
In this Comment, I argue that the Arkansas Game and Fish Court erred in applying First English without first addressing its continuing validity. Even assuming that First English was correct when it was decided in 1987 — something that is far from clear — it is doubtful that it remains so today. Since First English was decided, the Court has radically reduced the availability of implied damages relief for other constitutional violations. I argue that there is no principled basis for treating temporary regulatory takings differently from other constitutional violations; hence, limiting the availability of implied damages relief under First English is necessary to achieve doctrinal consistency. Further, limiting First English is desirable from a policy perspective, as this would return the question of compensation for temporary regulatory takings to the political process, allowing federal, state, and local governments to balance the public’s interest in regulation with the interests of individual property owners on a case-by-case basis.
Cite as: David Baake, Arkansas Game and Fish Commission v. United States, 37 Harv. Envtl. L. Rev. 577 (2013).
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By Joel B. Eisen
This Article examines the “Smart Grid,” a set of concepts, technologies, and operating practices that may transform America’s electric grid as much as the Internet has done, redefining every aspect of electricity generation, distribution, and use. While the Smart Grid’s promise is great, this Article examines numerous key barriers to its development, including early stage resistance, a lack of incentives for consumers, and the adverse impacts of the federal-state tension in energy regulation. Overcoming these barriers requires both new technologies and transformative regulatory change, beginning with the development of a foundation of interoperability standards (rules of the road governing interactions on the Smart Grid) that will influence development for many years. This Article describes the federally coordinated standard-setting process started in the 2007 Energy Independence and Security Act, leading to a collaborative dialogue among hundreds of participants, with leadership from the National Institute of Standards and Technology (“NIST”). After setting forth the need for interoperability standards and elaborating on the standard-setting process, the Article focuses on a 2011 order by the Federal Energy Regulatory Commission (“FERC”) that declined to adopt an initial group of standards. While this may appear a step backward, the Article argues to the contrary, finding that FERC’s order supports the flexibility of the Smart Grid Interoperability Panel, the NIST-led process that will produce interoperability standards critical to a wide range of energy saving technologies. FERC’s order allows this process, not a regulator’s imprimatur, to give standards credibility. By holding off on forcing adoption of the standards, but preserving the potential for more significant federal intervention later, it may lead to state adoption of the resulting standards. In this adaptive approach to energy law federalism, neither top-down federal regulation nor private sector standard setting is the exclusive means of overseeing Smart Grid development. FERC’s approach may promote a more positive federal-state relationship in the development of the Smart Grid, and may even portend a more collaborative relationship in energy law federalism generally, avoiding the disruptive jurisdictional clashes that have marked recent attempts to innovate in the electric grid.
Cite as: Joel B. Eisen, Smart Regulation and Federalism for the Smart Grid, 37 Harv. Envtl. L. Rev. 1 (2013).
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