Daniel A. Farber

Telling Stories out of School: An Essay on Legal Narratives

Once upon a time, the law and literature movement taught us that stories have much to say to lawyers, and Robert Cover taught us that law is itself a story. Instead of living happily ever after with that knowledge, some feminists and critical race theorists have taken the next logical step: telling stories, often about personal experiences, on the pages of the law reviews. By 1989, legal storytelling had risen to such prominence that it warranted a symposium in a major law review.2 Thus far, however, little or no systematic appraisal of this movement has been offered.3 We agree with the storytellers that taking the movement seriously requires engaging its ideas,4 and

Basic Compensation for Victims of Climate Change

Even if the world implements an optimal program for reducing greenhouse emissions, significant effects of climate change will still occur. Examples include changes in sea level, precipitation patterns, geological features such as permafrost, and harm to sensitive ecosystems such as coral reefs. This paper considers how the costs of those effects might be redistributed from victims to large emitters. It provides a sketch of a possible compensation system, which could be implemented either internationally or within the U.S., and either through litigation or an administrative scheme. In order to avoid difficult valuation issues, problems of proving causation, and long time lags, damages would be based on the cost of climate change adaptation, such as the expenses of preventing damage to or restoring infrastructure and ecosystem services. While undercompensating victims, the scheme could provide a practical method of reallocating the costs created by climate change.

Environmental Federalism in a Global Economy

Once upon a time, several kingdoms decided to end their trade wars. They created a centralized rulemaker with the authority to legislate against interference with trade. Over time, however, this power greatly expanded, partly because of creative judicial interpretations. By the end of the 1900s, the rulemaker was heavily involved in environmental regulation. Environmentalists applauded this expansion, while economists worried about excessive centralization. In the meantime, the rulemakers judicial counterpart had become unexpectedly aggressive in striking down local regulations affecting trade. This development alarmed environmentalists, while economists applauded it as a triumph for free trade. To the dismay of legal formalists, constitutional text and original intent seemed forgotten. Whether they all lived happily ever after remains to be seen.

Research Handbook on Public Choice and Public Law

Public choice theory sheds light on many aspects of legislation, regulation, and constitutional law and is critical to a sophisticated understanding of public policy. The editors of this landmark addition to the law and economics literature have organized the Handbook into four main areas of inquiry: foundations, constitutional law and democracy, administrative design and action, and specific statutory schemes. The original contributions, authored by top scholars in the field, provide helpful introductions to important topics in public choice and public law while also exploring the institutional complexity of American democracy.

Pollution Markets and Social Equity: Analyzing the Fairness of Cap and Trade

This Article considers three fairness issues relating to a cap-and-trade system: fairness to industry, fairness to communities disproportionately impacted by pollution, and fairness to low-income energy consumers. First, assuming any compensation of industry is warranted, free allowances would overcompensate firms for the cost of achieving emission reductions; industry should not receive effective ownership of the atmosphere at the public’s expense. Second, environmental justice advocates argue that cap-and-trade systems generate pollution hot spots and encourage dirtier plants to continue operating to the detriment of certain disadvantaged communities. However, cap and trade has no intrinsic tendency to produce increased emissions in disadvantaged communities. Designers of cap-and-trade systems nevertheless should be alert to possible hot spots, particularly in low-income and minority communities. If hot spots are expected or emerge during the operation of the program, responses could include creating geographic grading zones, imposing ceilings on emissions in addition to the cap-and-trade scheme, or prohibiting certain sources from purchasing allowances. Third, any regulation of emissions raises costs, which has a disproportionate impact on low-income consumers. This effect can be greatly ameliorated through adroit use of revenue from emissions allowance auctions to offset the additional burden on low-income consumers from increased energy costs. The bottom line is that fairness issues are not a deal-breaker for cap and trade, but they do deserve thoughtful consideration in designing a system.

Rethinking the Role of Cost-Benefit Analysis

In their excellent new book, Retaking Rationality, Richard Revesz and Michael Livermore make a strong case for reforming cost-benefit analysis (CBA). Too often, as they convincingly document, CBA has been identified with an anti-regulatory agenda rather than reflecting sound economic analysis - and I would add, too often CBA has served as a means of hindering the implementation of statutory mandates. Their specific proposals for reforming CBA seem sensible. So does their desire to reform the role of OMB in overseeing regulatory policy.The trouble is that these reforms do not go far enough. The antiregulatory bias of OMB certainly has handicapped environmental policy, but more fundamental changes are needed if we are to achieve real progress. Toxics policy needs to be rethought from the ground up along the lines of the EU REACH Directive, while climate policy needs to be guided by a precautionary attitude toward mitigation and a search for robust adaptation strategies. As an institutional home for overseeing these efforts, we should consider revamping OMB into an Office of Management, Budget and Sustainability.

Investigation of the performance of the New Orleans regional flood protection systems during Hurricane Katrina: Lessons learned

The recent flooding and devastation of the greater New Orleans region during hurricane Katrina represented the most costly peace-time failure of an engineered system in North American history. Extensive investigations and analyses have been performed by several major teams in the wake of this disaster, and some very important lessons have been learned. Many of these have very direct and urgent applications to levee systems in other regions throughout the U.S., and the world. Lessons include the importance of proper evaluation of risk and hazard; so that appropriate decisions can be made regarding the levels of expense and effort that should be directed towards prevention of catastrophe, and the levels of post-disaster response capability that should be maintained as well. The making of appropriate decisions, given this information regarding risk levels, is then also important. Also of vital importance are numerous “engineering” lessons regarding analysis, design, construction and maintenance; hard-won lessons with applications to flood protection systems everywhere. We must now do everything possible to capitalize upon these; and to prevent a recurrence of this type of catastrophe in the future. 1 Professor, Dept. of Civil and Environmental Engineering, University of California at Berkeley, Berkeley, California 94720. Email: seed@ce.berkeley.edu GSP 161 Embankments, Dams, and Slopes Copyright ASCE 2007 Geo-Denver 2007: New Peaks in Geotechnics Redistribution subject to ASCE license or copyright. Visit http://www.ascelibrary.org

Indirect Land Use Change, Uncertainty, and Biofuels Policy

Indirect land use change (ILUC) is based on the simple observation that use of cropland for biofuels raises food prices and thereby increases the incentive to convert forests and grasslands to crop production, causing the released of stored carbon and decreasing future carbon sequestration. ILUC is mediated by world food and fiber prices and therefore requires no geographic link between the land used for biofuels and the land converted to crops – growing biofuels in Iowa could cause the loss of rainforest in Brazil. Current models indicate that ILUC is substantial but there is substantial uncertainty about its magnitude. This Article uses EPA’s recent decision to approve corn ethanol as a renewable fuel as a lens for examining the ILUC issue and more generally the regulatory treatment of uncertainty. Given the closeness of the decision to approve corn ethanol as a renewable fuel, a more sophisticated treatment of uncertainty would likely have changed the outcome. But EPA was correct to proceed with a consideration of ILUC despite the admitted degree of uncertainty regarding the magnitude of ILUC.

Stretching the Margins: The Geographic Nexus in Environmental Law

In environmental law, a recurring issue involves the geographic nexus-the connection required to give an individual or government a legitimate interest in an environmental problem in a given locale. The nexus issue arises in a broad range of contexts, from standing decisions such as Defenders and National Wildlife Federation, to Dormant Commerce Clause decisions and their relatives in GATT and ECJ jurisprudence. In Part I, the author explores the use of the geographic nexus to define when individuals have suffered cognizable environmental injuries. He then explores, in Part II, what type of nexus a government must show as a basis for environmental regulation. He argues in Part III that we need a pragmatic, flexible approach to the geographical nexus. Globalism and localism, the two leading perspectives on the geographic nexus, are both too inflexible. Localism places talismanic weight on physical location while globalism attempts to erase geography. Each perspective is insufficiently attentive to the values represented by the other. We must expect the geographic nexus to evolve along with changing concepts of sovereignty and developing perceptions of environmental issues. In applying such an evolutionary approach, tribunals should be receptive to signals from the international community, or in the United States, from Congress, regarding the legitimacy of transboundary regulatory interests.

Transnational Dimensions of Climate Governance

Climate Change as an Arena of Transnational Environmental Law it is fitting that the second issue of Transnational Environmental Law (TEL) focuses on governance and climate change. Transnational environmental law views governance as an outgrowth of local, regional and transboundary communications and pressures. The challenges of transnational governance – and its necessity – are especially clear in the context of climate change. On the one hand, climate change is a global phenomenon with globally distributed causes, thus requiring a global response. On the other hand, emissions always take place from specific locations within particular jurisdictions, and the impacts of climate change will vary from place to place, requiring diverse adaptation measures. Thus, it is inherent in the nature of climate change that responses will be multi-scalar and multi-jurisdictional, raising profound issues of governance. Moreover, because of the ubiquity of climate and of the activities causing emissions, climate governance modifies rules that govern private control over resources – in other words, with the property system.