Environmental Law SSRN Reading List: March 2016

SSRN Top Papers

We’re back again with the Harvard Environmental Law Review‘s last monthly Environmental Law SSRN Reading List of the school year. Check out this month’s selections below:

  1. Cost-Benefit Analysis and Arbitrariness Review by Cass Sunstein (Harvard Environmental Law Review, Forthcoming) (arguing that whenever a statute authorizes an agency to consider costs and benefits, its failure to quantify them—and to weigh them against each other—requires a non-arbitrary justification, such as the technical difficulty of quantifying costs and benefits; the relevance of values such as equity, dignity, and fair distribution; or the existence of welfare effects that are not captured by monetized costs and benefits)
  2. The Supreme Court’s Clean-Power Power Grab by Lisa Heinzerling (Georgetown Environmental Law Review, Forthcoming) (detailing ten ways in which the Supreme Court’s unprecedented decision and process on the applications to stay the Clean Power Plan reflected bad choices)
  3. Unjust, Unreasonable, and Unduly Discriminatory: Utility Rates and the Campaign Against Rooftop Solar by Ari Peskoe (Texas Journal of Oil, Gas, and Energy Law, 2016, Forthcoming) (examining the history of electricity distribution regulation, and concluding that opening up the monopoly-controlled distribution system to new technologies and services provided by non-IOU entities is consistent with the history and purpose of state regulation)
  4. Two Wrongs? Correcting Professor Lazarus’s Misunderstanding of the Public Trust Doctrine by Michael C. Blumm (Environmental Law, Vol. 46, No. 3, 2016) (responding to Professor Richard Lazarus’s recent article Judicial Missteps, Legislative Dysfunction, and the Public Trust Doctrine: Can Two Wrongs Make It Right?, which questioned the efficacy of relying on atmospheric trust doctrine theories in litigation to address global climate change, by arguing that Professor Lazarus misunderstands the non-absolutist nature of the public trust doctrine and that the doctrine requires legislative and administrative decisionmakers to exercise their discretion in protecting trust resources from destruction or monopolization)
  5. The Failure to Understand Expertise in Administrative Law: The Problem and the Consequences by Sidney A. Shapiro (explaining how the limited understanding of expertise in administrative law has led to a “rational-instrumental” (RI) accountability paradigm, which distrusts agency expertise and seeks to narrow the policy space in which agency expertise can operate, when a more accurate and complete understanding of expertise supports “deliberative-constitutive” (DC) accountability, which has the potential to increase agency effectiveness and still reconcile the administrative state with our constitutional democracy)
  6. Strategic Rulemaking Disclosure by Jennifer Nou and Edward Stiglitz (finding that agencies substantially under-report their rulemaking activities and appear to disclose strategically to Congress, so the Unified Agenda is not a successful tool for Congress to monitor and influence regulatory development)
  7. The Originalist Myth of the Unitary Executive by Peter M. Shane (arguing that close study of the state constitutions written in the first decades after 1789 and state administrative practice under them belie any “unitary executive” reading of Article II that purports to be based on “original public meaning,” corroborating a common understanding that Article II’s vesting of executive power permitted substantial legislative control over the allocation of decisional authority within the executive branch)
  8. The Brave New Path of Energy Federalism by Jim Rossi (Texas Law Review, Forthcoming) (defending concurrent federal-state jurisdiction as consistent with the history, structure, and language of energy statutes, as well as their primary purposes of closing regulatory gaps, and calling on courts and regulators to be attentive to promoting democratically accountably agency preemption as they address the challenges of new forms of energy federalism)
  9. The Legal Character of the Paris Agreement by Daniel Bodansky (Review of European, Comparative, and International Environmental Law, Forthcoming) (finding that the Paris agreement is a treaty within the definition of the Vienna Convention on the Law of Treaties, but not every provision of the agreement creates a legal obligation)
  10. Oil & Gas Drilling in National Parks Elizabeth by Glass Geltman (arguing that the National Park Service’s “9B Regulations,” which provide a national regulatory framework governing the exercise of nonfederal oil and gas rights in national parks, should be revised)