Robert L. Glicksman

A Comparative Analysis of Accountability Mechanisms for Ecosystem Services Markets in the United States and the European Union

Markets in ecosystem services have the potential to provide financial incentives to protect the environment either in lieu of or in addition to more traditional regulatory programmes. If these markets function properly, they can provide enhanced levels of environmental quality or more efficient mechanisms for protecting natural resources that provide vital services to humans. The theoretical benefits of ecosystem services markets may be undercut, however, if care is not taken in creating the legal infrastructure that supports trading to ensure that trades actually provide the promised environmental benefits. This article identifies five essential pillars of an ecosystem services market regime that are necessary to provide operational accountability safeguards. These include financial safeguards, verifiable performance standards, transparency and public participation standards, regulatory oversight mechanisms, and rule of law safeguards. The article assesses whether the laws of the United States (US) and European Union (EU) are well designed to provide such accountability. It concludes that despite recognition of the risk of market manipulation and outright fraud, regulators in the US and the EU to date have responded to these risks largely in an ad hoc and incomplete fashion, rather than embedding the mechanisms for operational accountability discussed in this article into the regulatory framework that governs ecosystem services trading markets.

Science in litigation, the third branch of U.S. climate policy.

The context and role of climate science in court are changing Whereas the executive and legislative branches are the principal repositories of policy-making authority in the United States, decisions in the judicial branch have and promise to continue having an influence on activities responsible for greenhouse gas (GHG) emissions, energy development, and a wide range of other government policy. The courts are a central avenue for development of climate-related policy in the United States. Yet we know few details about whether and how climate science plays a role in such judicial responses. We suggest that the role of science is changing, that novel legal theories are emerging, and that litigation is likely to continue to increase.

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.

Climate Change and the Puget Sound: Building the Legal Framework for Adaptation

The scope of climate change impacts is expected to be extraordinary, touching every ecosystem on the planet and affecting human interactions with the natural and built environment. From increased surface and water temperatures to sea level rise and more frequent extreme weather events, climate change promises vast and profound alterations to our world. Indeed, scientists predict continued climate change impacts regardless of any present or future mitigation efforts due to the long-lived nature of greenhouse gases emitted over the last century. The need to adapt to this new future is crucial. Adaptation may take a variety of forms, from implementing certain natural resources management strategies to applying principles of water law to mimic the natural water cycle. The goal of adaptation efforts is to lessen the magnitude of these impacts on humans and the natural environment through proactive and planned actions. The longer we wait to adopt a framework and laws for adapting to climate change, the more costly and painful the process will become.This publication identifies both foundational principles and specific strategies for climate change adaptation across the Puget Sound Basin. The projected impacts themselves of climate change in the region were well studied in a landmark 2009 report by the state-commissioned Climate Impacts Group. This publication analyzes adaptation options within the existing legal and regulatory framework in Washington. Recognizing the economic and political realities may not lead to new legislation, the recommendations focus on how existing laws can be applied and made more robust to include climate change adaptation.

Debunking Revisionist Understandings of Environmental Cooperative Federalism: Collective Action Responses to Air Pollution

The federal Clean Air Act initiated Congresss venture into cooperative environmental federalism in 1970. Forty-five years later, misconceptions about the nature of that venture (and similar examples of cooperative federalism under other federal environmental statutes) persist. In particular, some recent judicial decisions characterize environmental cooperative federalism as an equal partnership between the federal Environmental Protection Agency and the states. They also take umbrage at efforts by EPA to override state policies and initiatives that fail to conform to the minimum responsibilities that the statutes impose on the states, characterizing them as unlawful affronts to state sovereignty.This chapter argues that the CAA was never designed to be an equal partnership. The Acts text, structure, and legislative history demonstrate clearly that Congress chose to put EPA at the helm, and that it did so out of concern that collective action problems such as transboundary externalities, diseconomies of scale, and the race to the bottom could only be overcome if the federal government held the upper hand in the regulatory partnership created to promote air quality improvement. It argues that an accurate application of the cooperative federalism model actually established under the CAA is imperative for the successful implementation and enforcement of the statute’s programs and goals for both criteria air pollutants and greenhouse gases.

Regulatory Safeguards for Accountable Ecosystem Service Markets in Wetlands Development

The use of environmental markets creates the potential for achieving environmental protection goals more efficiently than traditional regulation is capable of doing. Past experience with emissions trading programs and other forms of environmental markets that operate in conjunction with traditional regulatory programs, however, illustrates the risks that accompany reliance on market-based strategies. In particular, participants in environmental regulatory markets have in some instances manipulated them to enhance private gain while undercutting public environmental objectives. Using the wetlands mitigation component of the federal Clean Water Act’s dredge and fill permit program as an example, this essay recommends that market-based environmental programs incorporate five different types of safeguards to promote the accountability of both market participants and the agencies supervising the operation of those programs. Reliance on financial safeguards, verifiable performance standards, transparency and public participation safeguards, oversight mechanisms such as monitoring and inspections, and rule of law safeguards can preserve opportunities for efficient achievement of environmental protection goals while reducing the risk that markets will be used to subvert those goals.

Strategies in and outcomes of climate change litigation in the United States

The courts have played a central role in climate policy, including the landmark Supreme Court case that led to the mandatory regulation of greenhouse gases by the United States. A wide variety of litigants have used the courts to affect policy outcomes at all scales. Therefore, to understand how the court addresses climate change is critical. Here we constructed and analysed a database of all the United State domestic climate lawsuits 1990–2016 (873), and collected qualitative data in the form of 78 in-depth interviews with litigants, involved scientists and advocates. We find proregulation litigants tend to win renewable energy and energy efficiency cases, and more frequently lose coal-fired power plant cases. Strategies such as the use of climate science and other science as well as collaboration in specific types of coalitions affect the outcomes of cases. Efforts to affect climate policy should consider these trends and outcomes.Climate issues are increasingly being presented before the courts, with both pro- and anti-regulation litigants aiming to affect policy outcomes. Analysis of domestic US climate lawsuits and interview data reveals the type of case and the strategies that succeed.

The Role of Health in Climate Litigation

Objectives To examine how the courts, which play a critical role in shaping public policy, consider public health in climate change and coal-fired power plant lawsuits. Methods We coded US local, state, and federal court decisions relating to climate change and coal-fired power plants from 1990 to 2016 (n = 873) and qualitatively investigated 139 cases in which litigants raised issues concerning the health impacts of climate change. We also conducted 78 interviews with key litigants, advocates, industry representatives, advising scientists, and legal experts. Results Health has been a critical consideration in key climate lawsuits, but in a minority of cases. Litigants have presented health arguments most frequently and effectively in terms of airborne exposures. Health impacts have typically been used to gain standing and argue that the evidence for government actions is insufficient. Conclusions The courts represent a pivotal branch of government in shaping climate policy. Increasing inclusion of health concerns in emergent areas of litigation could help drive more effective climate policymaking.

Extent of Cooperative Enforcement: Effect of the Regulator-Regulated Facility Relationship on Audit Frequency

A spirited debate explores the comparative merits of two different approaches to the enforcement of environmental law: the noncooperative approach, which emphasizes the deterrence of noncompliance through inflexibly imposed sanctions, and the cooperative approach, which emphasizes the inducement of compliance through flexibility and assistance. Both scholarly and policymaking communities are interested in this topic of enforcement approach within the realms of finance, tax compliance, occupational safety, food and drug safety, consumer product safety, and environmental protection, among others. To inform this debate, our study explores enforcement of environmental protection laws where the debate has been especially spirited yet lacking in much empirical evidence. Specifically, our study empirically analyzes the effect of enforcement approach on the frequency of self-audits linked to compliance with wastewater discharge limits imposed on chemical manufacturing facilities. For this analysis, we view the enforcement approach as representing a relationship between a regulator and a regulated facility that is measured in multiple dimensions. The empirical results reveal that, in general, a cooperative relationship induces more frequent auditing and, in particular, a more stable and higher quality relationship increases audit frequency, while a completely fair relationship yields less frequent auditing. However, these conclusions may depend on the extent of regulatory monitoring and enforcement. Specifically, they rely on sufficiently lower monitoring and enforcement. Once the extent of monitoring and enforcement becomes sufficiently strong, the empirical results appear to support the opposite conclusions.