Monday, November 30, 2015

The Fisheries Outlier? A Research Paper Idea

FishermanIn environmental law circles, we often talk about gridlock.  Laments about the inability of Congress to pass new environmental laws, or make significant improvements to existing ones, are common.  And we often look to 1990, when Congress passed major Clean Air Act Amendments and the Oil Pollution Act, as the end of environmental law’s era of legislative progress.

But there’s one important American environmental law that didn’t stop evolving in 1990.  In 1996, at the height of Bill Clinton’s battles with Newt Gingrich and his insurgent conservative majority, Congress passed amendments designed to turn the Magnuson-Stevens Fishery Management and Conservation Act into a genuine environmental law.  Initially, the new protections didn’t work particularly well, but in January 2007—before Democrats took back control of Congress—President George W. Bush signed into law a second set of amendments (Representative Richard Pombo—no environmental luminary, to say the least—was a sponsor).  These amendments were unequivocally protective; their core provisions were designed to end overfishing, and to do so quickly.  And there’s growing evidence that they’re working.

How did this happen?  I’d love to read an article that delves into the legislative history of these amendments, and that explains how fishery law managed to become more protective in what seem like the most unlikely of times.  Perhaps that story might hold lessons for other fronts where environmental legislation really is stalled.  Or perhaps fisheries law is just an outlier, a unique, strange area where the usual political rules don’t apply.  But either way, I suspect there’s a good story here, just waiting to be told.  And to the best of my knowledge, no one has told it yet.

So if you’re an environmental law student or a graduate student looking for a good (if ambitious) research project, I think this might be a great idea.  And I—and hopefully many other people—would be very interested to see what you find.

Dave Owen

image from http://www.nmfs.noaa.gov/sfa/magact/

November 30, 2015 | Permalink | Comments (0)

Friday, November 20, 2015

Arizona State University is Sustaining its Sustainability Law Conference...

... and it wants you to come.  I've heard good things about last year's conference, and the financial deal--lodging, meals, and up to $500 paid for travel--will make your dean happy.  The organizers are looking for both individual and panel proposals, and the portal for submitting proposals is here.

ASU is also soliciting submissions for its Morrison Prize, which goes to the most influential piece of sustainability-related scholarship from the previous year.  The winner gets $10,000 and will be the keynote speaker at the sustainability conference.  You can find more details here, and move quickly; the deadline for submissions is Monday, November 30.

November 20, 2015 | Permalink | Comments (0)

Tuesday, November 10, 2015

A Law Review Submissions Idea

The law review submissions process is a perennial gripe for professors and students alike (for some recent discussion, see this thread from Prawfsblawg).  But I wonder if a relatively simple reform might make it better.

Imagine if every law professor were limited, somehow, to fifteen submissions per article.  What might the consequences be?  I can imagine a few positive and some negative.  And while it’s difficult to predict all the ripple effects, I suspect the positive effects would outweigh the negatives.

The main positive benefits would flow from articles editors having fewer articles to read.  Right now, many authors blanket the field with submissions.  There are few reasons not to; Expresso and Scholastica make it so easy.  But that means many journals are inundated with submissions and have no choice but to triage their workloads.  So they do, and in ways that aren’t fair to professors or good for quality scholarship: using letterhead and past publication records as proxies for quality, for example, and making snap judgments based on tiny portions of articles.  The process has costs for students, too.  I suspect most articles editors would prefer to read a little bit less and a little more deeply.  This system might allow them to do that.  And, of course, it might reduce the number of articles that student editors do read carefully, make considered judgments upon, and offer to publish, only to see their offer used as leverage for another placement.

A secondary positive benefit might be increased alignment between the interests of student editors and the articles they receive.  This could happen in multiple ways.  First, imagine that the 2017-18 board of the Hastings Law Journal is particularly interested in environmental law.  It could advertise that interest, and professors would be particularly likely to prioritize Hastings for their environmental law submissions.  Students then might get more articles in subject areas that interest them—and subject areas in which they are more comfortable evaluating quality.  The same benefit ought to accrue to specialty journals.  Professors would probably make more effort to target journals that seem like natural fits for their articles, and specialty journals obviously would fit that description.  And again, I think that would benefit both students and the academy, for it would ensure that a greater proportion of articles is selected and edited by students with heightened expertise in the areas those articles cover.

There are also some obvious potential negative effects.  Submission limits might reify the soft caste system that currently plagues the submission process; they would probably make it harder for an underdog, unknown author to use expedites to climb the ladder (though they might also make her less dependent on expedites to get an initial read at a top journal).  And there’s also the problem of the author who writes something pretty good but just miscalculates when selecting journals to target.  Missing out on publication seems like a harsh penalty for what might be a completely understandable mistake. 

And then, of course, there’s the enforcement problem.  Putting this system in place would be a bit like, say, trying to limit the ability of federal judges to make hiring decisions before a certain date.  The incentive to cheat would be huge, and penalizing cheating would be rather difficult (who would the enforcers be?).  And that assumes that everyone would agree to this system in the first place.  Even if most journals are interested, the holdout and coordination problems are daunting.  But perhaps, if the basic idea is sound, those obstacles might be surmountable—and if the basic idea isn’t sound, those obstacles are moot.  So I’m curious what readers think.  Is there any potential benefit here?

- Dave Owen

November 10, 2015 | Permalink | Comments (1)

Tuesday, November 3, 2015

The Unravelling Ideology of Environmental Trading Systems

This morning, the Obama Administration released a memorandum on compensatory mitigation.  The memorandum does several key things.  First, it makes the avoid-minimize-compensate hierarchy, long a cornerstone of Clean Water Act section 404 implementation, into a guiding principle across much of federal environmental governance.  Second, it strengthens the federal commitment to use, and support, compensatory mitigation, including private sector initiatives.  And third, it directs agencies to link compensatory mitigation to landscape-scale planning efforts.  None of these ideas is new—in specific realms like renewable energy siting, federal agencies were already trying to do these sorts of things—but the memorandum tries to turn individual efforts into consistent and cohesive policy.

All of that is important, but this post is going to wallow in academic geekiness and address another interesting aspect of the memorandum.  The memorandum takes another small step in a long process through which environmental trading has lost its ideological overtones.  And that loss may have some interesting implications for the future of environmental law.

Thirty years ago, writing about environmental trading systems was rife with ideology.  According to many of their legal-academic proponents, these trading systems were not just more efficient ways to govern.  They also offered the prospect of removing decision-making from the sclerotic, domineering central government and transferring it to private decision-makers.  In other words, they offered a possible escape from a New-Deal, expert-centered, centralized mode of decision-making that many thinkers on the right, and even in the political center, had come to disdain.  The frequent use of the adjective “market-based” to describe these regulatory systems—often in contrast to the pejorative phrase “command and control”—reflected those overtones.  Environmental trading was not just about efficiency.  It was about reconciling environmental protection with a libertarian conception of freedom.  Or, at least, that was the expectation and the hope.

Fast-forward thirty years, and some things haven’t changed.  This new memorandum still reflects widely-shared hopes that environmental trading systems can lead to economically and environmentally preferable outcomes.  But the libertarian overtones are gone, as is the bashing of government.  Instead, the new memorandum envisions a major role for government: it will provide lots of guidance on trading systems, and it will engage in elaborate planning exercises that set the ground rules for trading before it begins to occur.  Environmental trading, in other words, will be highly technocratic, and the New Deal-style expert will still be there, pulling the strings behind the whole enterprise.  That expectation is hardly unique to the vision of this one particular memorandum.  Indeed, it really just reflects reality.  From carbon trading to fisheries management, we have learned that for environmental trading systems to work—and, sometimes, they do—sophisticated government actors will have to be centrally involved in their design and ongoing management.

But even if the environmental trading systems envisioned by this memorandum bear little resemblance to the libertarian-tinged fantasies of their early legal-academic proponents, they also don’t represent a pure resurgence of New Deal-style regulation.  During the New Deal, the Civilian Conservation Corps did much of the actual work of landscape restoration; the men that actually dug the dirt worked on government paychecks.  That isn’t the current vision.  Instead, the memorandum directs government agencies to facilitate the involvement of mitigation banks, which are private, and often for-profit, enterprises.  So while the New Deal expert may be back (if indeed he ever left), he or she is now embroiled in a rather modern-sounding public-private partnership.

So why might this all matter (or, more specifically, why might it matter to someone who doesn’t care so much about theories of regulation)?  This is where things get quite speculative, but this is just a blog post, so here goes.  The right ideology affinities do allow legislation to get passed, and administrative policy to get implemented, just a little more easily.  And if that’s so, the loss of environmental trading systems’ semi-libertarian halo may be an unfortunate development, at least in this age of semi-libertarian political ascendancy.  That halo never had much intellectual justification; it didn’t really describe how trading systems actually worked.  But to the extent it got politicians to think, inaccurately, that environmental trading was about freedom and limited government, it might have made a few forms of environmental protection just a little bit easier to accomplish. 

Now the bloom has mostly fallen off that rose.  Sometimes I wish we had it back. 

- Dave Owen

November 3, 2015 | Permalink | Comments (1)

Monday, November 2, 2015

U.S. News Oops

Can you spot the problem?

Us news survey

I wonder what this does to the validity of the survey results.

-Dave Owen

November 2, 2015 | Permalink | Comments (0)