Kirsten H. Engel

The Dormant Commerce Clause Threat to Market-Based Environmental Regulation: The Case of Electricity Deregulation

This Article is an attempt to address the Commerce Clause issues raised when state regulators employ market-based approaches to environmental regulation. Commerce Clause issues can arise when state legislators, in an effort to protect the environment, experiment with creating markets for things that were never before conceived of as marketable. Whether those things be tradable obligations to purchase renewable power or tradable permits to pollute, does a state that adopts such market-friendly approaches thereby automatically transform its regulatory authority into an article of commerce within the meaning of the Commerce Clause? Will such a state unwittingly find its efforts to protect the environment stymied by the Supreme Courts dormant Commerce Clause jurisprudence? Similar issues arise when a state employs other market-based approaches to regulation, such as forcing manufacturers to internalize the environmental costs of production or waste disposal, thereby increasing the price of goods. These Commerce Clause questions may be expected to arise with greater frequency as market-oriented approaches to achieving public goals become increasingly popular. The thesis of this Article is that barriers to interstate commerce should be considered constitutionally permissible when they result from state efforts to (1) retain the benefits of an incentive-based environmental market the state itself has created; (2) prevent the loss, to other jurisdictions, of the benefits generated where citizens collectively invest in industries using more environmentally sensitive production processes; or (3) stem the flow, to other states, of conventional economic benefits that result when a state forces industries to internalize the environmental costs of production and waste disposal. In other words, the Commerce Clause should not void state regulation that attempts to prevent free benefits from accruing to other states.

Perverse Incentives: The Case of Wildfire Smoke Regulation

Wildfire is on the rise. The United States is witnessing a spectacular increase in acres lost to catastrophic wildfires, a phenomenon fed by the generally hotter and dryer conditions associated with climate change. In addition to losses in lives, property and natural resources, wildfires contribute thousands of tons of air pollution each year. Ironically, perhaps the most effective tool to reduce the incidence and severity of unplanned wildfires is fire. In the form of prescribed, or controlled, burning and wildfires that are allowed to burn for their resource benefits, “planned wildfire” reduces the buildup of vegetation resulting from years of wildfire-suppression policy. At present, however, the number of acres burned annually falls far short of the number considered optimal for purposes of restoring natural ecosystems and reducing damages from unplanned wildfires. Air pollution law and policy is an important factor contributing to the under-provision of prescribed fire that has so far escaped in-depth treatment in the law and policy literature. After setting forth the relevant air quality framework, this article argues that decisions regarding planned wildfire are marred by an anachronistic and inaccurate distinction between “natural” and “anthropogenic” fire. Rationalizing that unplanned wildfires are “natural”, the federal government excludes pollutants from such fires from air quality compliance calculations at the same time it encourages states to vigorously control pollutants from “anthropogenic” prescribed fires. The result is an undervaluation of planned wildfire. Wildfire air pollution policy is also marred by governance structures that place air quality and resource agencies at odds with each other and by state nuisance authorities which provide narrow local interests with methods of shutting down prescribed burning -trumping the broader public interest in reduced wildfire risk and healthier forests. This article suggests several  Professor of Law, University of Arizona College of Law. The author wishes to especially thank Andrew Reeves, Janice Peterson, US Forest Service, Mark Evangelista, US EPA, Tom Moore, Western Regional Air Partnership, as well as the many other state and federal officials who offered their time and perspectives on this topic. The author is also grateful for the feedback she received with co-author Andrew Reeves on a paper on this topic presented at a joint University of Chicago University of Arizona symposium on the law and economics of wildfire policy. Finally, the author wishes to acknowledge the financial and research support provided by the University of Queensland TC Beirne College of Law and also the Law College Association of the University of Arizona. Anachronistic Pollution Policy 2 solutions to remove these distortions, including adopting a default rule whereby all wildfire smoke, of whatever origin, “counts” for purposes air quality compliance unless states can demonstrate a working program to encourage planned wildfire, a revised governance structure that incorporates the shared expertise of air pollution and resource agencies in planned burning decisions and a reduced role for state nuisance law. Anachronistic Pollution Policy

State Responsibility for the Exportation of Nuclear Power Technology

Should nations that export nuclear power plants to developing countries be potentially liable to the people of those countries for catastrophic accidents? Risk of accident can be reduced if international law compels upgrading of safety design and construction of nuclear plants. Both the international law of state responsibility and an international regulatory agency have roles to play.

Preemption Choice: The Theory, Law, and Reality of Federalism's Core Question: Adaptive Environmental Federalism

INTRODUCTION Environmental law is not neatly divided between the federal government and the states. The federal government continues to involve itself in highly localized issues with little clear connection to interstate environmental issues or a manifest need for federal uniformity. At the same time, states and local governments, especially recently, are not content to confine their attention to issues of local concern but are developing policies on environmental issues of national and even international importance. Nor do environmental issues “stay” in the control of any particular level of government but rather tend to pass back and forth, much like the proverbial football, between different levels of government. The current system of environmental federalism is therefore a dynamic one of overlapping federal and state jurisdiction. However, it is threatened by federal legislation and Supreme Court rulings. A wave of preemptive legislation has emerged from Congress in recent years. Numerous bills pending in Congress, for example, would preempt state actions to reduce greenhouse gas emissions (GHGs) that contribute to climate change. Similarly, following a long line of cases in which the Supreme Court has preempted a variety of state actions designed to protect the public, the Court recently (2004) preempted state auto-pollution regulations, despite, at best, ambiguous statutory language. Legal academics are similarly hostile to the dynamism of environmental federalism because it runs contrary to the prevailing view that an optimal level of government exists from which to set environmental policy.

The Enigma of State Climate Change Policy Innovation

Starting in the 1990s, states began filling the gap left by the federal government’s failure to enact climate change legislation. Policies adopted by states, such as regional greenhouse gas cap and trade regimes and renewable portfolio standards, have been lauded as demonstrations of the continuing ingenuity of the states as “laboratories of democracy,” devising new and innovative solutions to the global problem of climate change. This view is in tension with the predictions of well-respected economists that states will innovate at sub-optimal levels due to the risk-averse nature of politicians and the ability of one state to free-ride off the innovative ideas of other states. This chapter concludes the truth lies somewhere in the middle. While state governments are the original source of only a few of the most touted climate policy initiatives, they are frequently the first to adapt a policy previously adopted only on the national level. As opposed to “policy innovators,” state and local governments might more accurately be described as “scale innovators.” Given the overarching necessity of cutting back on greenhouse gas emissions, policy adoption on multiple scales is arguably of greater social value than developing new and original policy tools.