Thursday, September 19, 2013
Jessica Owley (Buffalo) has posted The Increasing Privatization of Environmental Permitting (Akron Law Review) on SSRN. Here's the abstract:
years ago, Congress passed many of the nation’s federal environmental
laws. Congress and state legislatures recognized the growing
environmental damage occurring in the country and passed laws
restricting the actions of businesses, individuals, and government
entities. One of the hallmarks of these environmental laws is the growth
of permitting programs. Acknowledging that a halt to all pollution and
development was both impractical and undesirable, governments developed
programs to minimize, monitor, and mitigate environmental harms. Over
the past forty years, private organizations have been increasingly
involved in these permitting programs. For example, through conservation
easements and mitigation banks, private businesses and nonprofit
organizations have taken on the responsibilities of monitoring and
enforcing environmental permits.
This article examines the increasing privatization of environmental law by looking at the example of mitigation programs. Concerns regarding democracy and accountability arise when government agencies hand off their mitigation duties embodied in permit obligations to private organizations. It is not clear that the private organizations have adequate oversight and there are no clear mechanisms for stepping in when these organizations fail to perform (or inadequately perform) their conservation duties. This increasing privatization has largely occurred without a public debate regarding who is the appropriate entity to carry out and enforce environmental law. The privatization has gone unnoticed and underexamined. This article argues that environmental conservation is a public duty and examines concerns that should be addressed with the increasing privatization of that task.