David L. Markell

An Empirical Survey of Climate Change Litigation in the United States

A quickly growing number of commentators have suggested that the domestic U.S. courts are already significant drivers of climate change policy, and their role is likely to increase. Carol Browner, Director of the White House Office of Energy and Climate Change Policy, for example, has suggested that “the courts are starting to take control” of climate change. In addition to fashioning law on their own, judicial decisions have significant implications for the work of the other branches, For example, in characterizing the Second Circuit’s recent decision in Connecticut v. American Electric Power a significant victory for activists because of its favorable holdings on standing and justiciability grounds, Professor Richard Lazarus notes that a major challenge for “environmentalists” is “how best to use this win to help promote meaningful climate change legislation in Congress and regulatory action by EPA, where the issues will best be addressed.” The foundational gap we seek to begin to fill in this Article is an empirically-based chronicling of climate change activity in the judicial arena. In particular, we have reviewed, and coded for a broad variety of attributes, every climate change case that has been resolved to date (through December 31, 2009); and, if a case has been filed but no resolution has yet been reached, we have reviewed (and coded) the complaint and other documents in the court docket. In all our study covers over 130 active or resolved pieces of climate change litigation. We hope that this project will contribute in two important respects to understanding of the action in the courts on climate change to date. First, we compile and present basic information about the cases brought to date (e.g., the types of cases, where they have been brought, the types of plaintiffs and defendants involved, and the outcomes). In addition, we provide an additional layer of analysis through our synthesis of this information and our identification of trends that have emerged thus far. Our purpose in this Article, in short, is to present an empirically-based picture of what one New York Times headline describes as courts serving as “battlefields” in “climate fights.”

Using Empirical Research to Design Government Citizen Participation Processes: A Case Study of Citizens' Roles in Environmental Compliance and Enforcement

This paper explores citizen perspectives about different types of participation mechanisms. An enormous number and variety of citizen participation mechanisms exist, in domestic and global governance. In recent years, support for citizen engagement has made creation of new hybrid approaches a regular feature of the governance landscape. Our hope is that enhanced understanding of citizen preferences for different types of participation processes will lead to improved design of such mechanisms. The paper uses an empirical approach to focus on currently available citizen participation mechanisms in the field of environmental regulation. Through a questionnaire, we asked environmental activists about their preferences among different participation mechanisms, and about their preferences among different features of those mechanisms. We used insights from the procedural and distributive justice literatures in developing our menu of possible process features. The most important finding from the questionnaire responses is that context seems to be a key determinant of participant preferences. Offered a menu of eleven process choices for participating in situations involving non-compliance with the environmental laws, respondents preferred different processes depending on the situation involved. Similarly, respondents, when asked specific questions about two procedures, citizen suits under the federal environmental laws and the Commission for Environmental Cooperations (CECs) citizen submissions process, preferred the different procedures for different reasons. These responses highlight the need for more detailed exploration of the importance of context in process design; prospective process participants appear to prefer different types of processes, and different features, in different contexts. Consistent with earlier work in different arenas, our respondents also valued procedural justice features of processes (fairness, neutrality, etc.) in addition to considering distributive justice (e.g., the likelihood of a successful outcome) in assigning preferences among process options. Our fundamental argument is that this empirical governance approach (notably, using empirical research as a guide to designing legal procedures) is applicable throughout the realm of environmental use conflicts; more broadly, beyond this area of practice, it is a model, in our view, that will yield helpful insights for increasing citizen participation in procedures intended to promote such participation.

Technological Innovation, Data Analytics, and Environmental Enforcement

Technical innovation is ubiquitous in contemporary society and contributes to its extraordinarily dynamic character. Sometimes these innovations have significant effects on the state of the environment or on human health and they have stimulated efforts to develop second order technologies to ameliorate those effects. The development of the automobile and its impact on life in the United States and throughout the world is an example. The story of modern environmental regulation more generally includes chapters filled with examples of similar efforts to respond to an enormous array of technological advances. This Article uses a different lens to consider the role of technological innovation. In particular, it considers how technological advances have the potential to shape governance efforts in the compliance realm. The Article demonstrates that such technological advances – especially new and improved monitoring capacity, advances in information dissemination through e-reporting and other techniques, and improved capacity to analyze information – have significant potential to transform governance efforts to promote compliance. Such transformation is likely to affect not only the “how” of compliance promotion, but also the “who.” Technological innovation is likely to contribute to new thinking about the roles key actors can and should play in promoting compliance with legal norms. The Article discusses some of the potential benefits of these types of technological innovation in the context of the Environmental Protection Agency (EPA)’s ongoing efforts to improve its compliance efforts by taking advantage of emerging technologies. We also identify some of the pitfalls or challenges that agencies such as EPA need to be aware of in opening this emerging bundle of new tools and making use of them to address real-world environmental needs.

The public regulation of land use decisions: Criteria for evaluating alternative procedures

In this article we argue for an empirical governance approach — the use of public evaluations — as one basis for deciding whether and how to regulate decisions with public consequences. We propose a conceptual framework for evaluating public acceptability, notably that public judgments should be evaluated against five criteria: overall acceptability ex ante; robustness; consensus; procedurality; and their ranking on nonfairness issues such as cost and convenience. In the article we also move beyond theory to implementation by modeling our framework to evaluate public judgments concerning acceptability in the contentious area of land-use decisions in Florida.