Over the last thirty years, climate change and depletion of the ozone layer have been widely believed to be the world's largest environmental problems. The two problems have many similarities. Both involve global risks created by diverse nations, and both seem to be best handled through international agreements. In addition, both raise serious issues of intergenerational and international equity. Future generations stand to lose a great deal, whereas the costs of restrictions would be borne in the first instance by the current generation; and while wealthy nations are largely responsible for the current situation, poorer nations are anticipated to be quite vulnerable in the future. But an extraordinarily successful agreement, the Montreal Protocol, has served largely to eliminate the production and use of ozone-depleting chemicals, while the Kyoto Protocol has spurred only modest steps toward stabilizing greenhouse gas emissions. What accounts for the dramatic difference between the two protocols' Part of the explanation lies in the radically different self-interested judgments of the United States; part of the explanation lies in the very different payoff structures of the two agreements. Influenced by the outcome of a purely domestic cost-benefit analysis involving reductions in ozone-depleting chemicals, the United States enthusiastically supported the Montreal Protocol. Influenced by the very different outcome of cost-benefit analyses for reductions in greenhouse gas emissions, the United States aggressively opposed the Kyoto Protocol. An examination of the two protocols suggests that neither agreement fit the simple structure of a prisoner's dilemma, in which a nation gain from an enforceable agreement, gains even more if it is the only nation not to comply while all others do, and lose most if it, and everyone else, pursue their own national self-interest. For the United States, at least, compliance with the Montreal Protocol would have been justified even if
The 1994 Tribal Self-Governance Act (TSGA) provides a mechanism for transferring authority over federal programs including federal land management to Indian tribes. It defines the relationship between Indian tribes and federal land management using the National Park Service at Grand Portage National Monument (GPNM). TSGA provides a lens for examining public land policy and Indian law and policy in an era where federal land management can function to strengthen tribal sovereignty. An analysis of the co-management also reveals three barriers that may arise with reference to Annual Funding Agreements (AFA) negotiation with the NPS. These include requiring permanent funding arrangements, incompatibility between co-management and self-determination, and the biggest barriers opposition from non-Bureau of Indian Affairs (BIA) bureaus or a tendency to conceptualize the TSGA as intrusion to public land management. If GPNM provides any indication about the future direction of the TSGA, it is that the park and tribe will move slowly, and that arrangements can be made to settle the problems that arise.
This Article suggests that by providing incentives for pipeline companies to reconstruct the nation’s natural gas infrastructure for fifteen months after Hurricanes Katrina and Rita devastated the Gulf Coast region of the U.S., the Federal Energy Regulatory Commission (FERC) unjustifiably used the hurricanes as an excuse to go beyond what was necessary for an “emergency” that, in fact, lasted no longer than five months for the natural gas industry. The article briefly discusses how FERC had a significant reason to want to extend its “emergency” response beyond five months without procedural “encumbrances”- before the hurricanes, America’s natural gas infrastructure was already deficient. The article then shows that the changes FERC made to its regulation of pipeline companies necessitated more regulatory protection for the rights of the public, the environment, and landowners than it had provided. Beyond these practical concerns, the article discusses how, in extending the “emergency” response beyond five months without any public input, FERC violated the Natural Gas Act, the Administrative Procedure Act, and the National Environmental Policy Act. The paper further discusses the theoretical importance of these doctrines.
The variety of anthropogenic stressors to the marine environment - including, increasingly, climate change - and their complex and synergistic impacts on ocean ecosystems testifies to the failure of existing governance regimes to protect these ecosystems and the services that they provide. Marine spatial planning has been widely hailed as a means of improving ocean governance through holistic ecosystem-based planning. However, that concept arose without reference to climate change, and hence it does not automatically account for the dynamic alterations in marine ecosystems that climate change is bringing. This Article attempts to adapt marine spatial planning to climate change adaptation. In so doing, it explores three main topics. First, it examines how established marine protected areas can aid climate change adaptation. Second, the Article looks at how nations have incorporated climate change considerations into marine spatial planning to increase marine ecosystem resilience, focusing on the international leader in marine spatial planning: Australia. Finally, the Article explores how marine spatial planning could become flexible enough to adapt to the changes that climate change will bring to the world’s oceans, focusing on anticipatory zoning. Governments, of course, can establish marine zoning governance regimes in anticipation of climate change impacts, as has already occurred in the Arctic. However, drawing on work by Josh Eagle, Barton H. Thompson, and James Sanchirico, this Article argues that governments could also combine anticipatory zoning and closely regulated marine use rights bidding regimes to encourage potential future private users to make informed bets about the future productivity value of different parts of the ocean, potentially improving both our knowledge regarding climate change impacts on particular marine environments and ocean governance regimes for climate-sensitive areas.
The legality of the use of general permits satisfying the National Pollutant Discharge Elimination System (NPDES) requirement of the Clean Water Act has been assessed. Although some of the troubling aspects of the general permits are easily resolved, the Environmental protection Agency (EPA) must be sure that the permits they issue including that of the state provide public access to Notices of Intent and any permittee-developed effluent limitation plans. Also, the reliance on permittee-developed effluent limitations based on the best management practices is an appropriate means of implementing technology-based obligations in general permits. If the permit requirements are sufficiently definite and the plans are enforceable as effluent limitations, the potential for enforcement by government and citizen suits should adequately assure that the plans are both properly developed and adequately implemented. Only, the most troubling in the use of general permits is the failure of EPA to adequately assure compliance with water quality standards. They provide lip service to permittee rather than the permit writer requiring them to identify complex and confusing requirements. EPA is also discouraging total maximum daily load (TMDL) by exempting permittees from any water quality requirements without approved TMDL. The acceptable efficiency advantages of general permits cannot override the important requirements of the Clean Water Act.
While there is no question that successful mitigation strategies remain critical in the quest to avoid worst-case climate change scenarios, we have passed the point where mitigation efforts alone can deal with the problems that climate change is creating. Because of "committed" warming climate change that will occur regardless of mitigation measures, a result of the already-accumulated greenhouse gases in the atmosphere - what happens to coupled socio-ecological systems over the next decades, and most likely over the next few centuries, will largely be beyond human control. The time to start preparing for these changes is now, by making adaptation part of a national climate change policy. American environmental law and policy are not keeping up with the need for adaptation. For example, environmental and natural resources law are currently based on assumptions of ecological stationarity and pursue goals of preservation and restoration. Neither those assumptions nor those goals fit a world of continual, unpredictable, and nonlinear transformations of complex ecosystems - but that is the world that climate change is creating. This Article argues for a principled flexibility model of climate change adaptation law to pursue goals of increasing the resilience and adaptive capacity of socioecological systems. In so doing, it lays out five principles and several subprinciples for the law of environmental regulation and natural resource management. Structurally, this Article also strongly suggests that climate change adaptation law must be bimodal: it must promote informed and principled flexibility when dealing with climate change impacts, especially impacts that affect baseline ecological conditions such as temperature and hydrology, while simultaneously embracing an unyielding commitment to precautionary regulation when dealing with everything else.
The overall purpose of this Note is to fully evaluate the June 2003 reforms to the European Union's Common Agricultural Policy (CAP) which have been hailed as revolutionary. My overall thesis is that while the 2003 reforms are significant, most of the change thus far has been purely ideological. As a result, additional efforts will be necessary to fully alleviate the environmental damages associated with fifty years of ill-considered European Union agricultural policy. In my Note, I first address the environmental harms caused by direct producer support, or those payments to farmers encouraging production in select commodities. Such payments distort market signals and give farmers incentive to overproduce in these areas in far excess of market demand. The environmental impacts of this policy have been appalling as even the most marginal land, not suitable for cropping under a market system, has been thrust into production under this "coupled" system. As a result, the benign farming techniques of the past have been abandoned and sensitive habitat has been destroyed in an effort to obtain farm subsidy payments. My Note evaluates the 2003 reforms, uses the United Kingdom as an example of a nation focused on promoting reform, and concludes by examining the beginnings of a shift toward rural development as the focus on European agricultural policy and the potential environmental gains that could be obtained through a widespread adoption of these principles or objectives. Rural development, which the 2003 reforms seek to promote, could truly provide the revolutionary policy breakthrough sought by agricultural planners.
This Article explains the role that local governments have assumed in protecting the environment, explores the means by which they have obtained their authority to do so, and discusses how this enhanced municipal role should influence environmental and land use policy at the federal and state level. Part I! reviews federal efforts to control nonpoint source pollution, and identifies the constraints on federal action. Among these constraints is the national understanding that the power to control the private use of land is a state prerogative, one that has been delegated, in most states, to local governments. Part III describes how the traditional authority of localities to control land use has evolved to incorporate environmental protection standards, and how local land use agencies apply and enforce those standards. In Part IV, the various methods that state legislatures and courts have used to delegate and expand the authority of local governments to protect the environment are explored, explained, and analyzed. This Part demonstrates that the importance of controlling environmental degradation at the local level has led states to expand the range of matters that may be regulated under traditional land use authority, home rule powers, and special purpose statutes. Part V summarizes empirical research regarding local environmental laws and provides detailed illustrations of the various types of protections that municipalities have adopted. Part VI makes the case that local governments, despite their much-lamented limitations, should be full partners of the state and federal governments in the critical matter of environmental protection. Part VII argues that the advent of local environmental law is a natural and healthy response of the legal system to environmental exigencies, precipitated in part by the inertia experienced at the federal level, and that it is time to change federal and state policy to reinforce and utilize this powerful new grass-roots force.
Only about one-quarter of all power plants have completely upgraded pollution control equipment and over 60% are wholly exempted from many Clean Air Act (CAA) requirements because of some grandfathering provisions. Several of the CAA's provisions, principally the New Source Performance Standards and New Source Review contain typical vintage-differentiated language. An innovative and feasible solution, the Most Effective Best Available Control Technology (MEBACT)approach meet the toughest standards as compared to the existing sources. The MEBACT approach aims to limit the social welfare losses associated with standard market, quantity-based trading by forcing certain important fossil fuel sources to install Best Available Control Technology (BACT) or Lowest Achievable Emissions Rate (LAER) technology over time. The approach focuses only on fossil-fuel electric sources because they are the greatest pollution sector, their control technology and pollution types are fairly universal and the spatial and temporal effects of the pollution are more ascertainable. Whether or not the proposed approach is adopted, Congress must still address the welfare losses associated with trading grandfathered air, maximizing financial efficiency, environmental integrity and social well-being.
This article is a response to Jessica Jay's, When Perpetual Is Not Forever: The Challenge of Changing Conditions, Amendment and Termination of Conservation Easements, 36 Harv. Envtl. L. Rev. 1 (2012). When Perpetual Is Not Forever suggests that government entities and land trusts accepting conservation easement donations are free to ignore both federal tax law requirements and the rules that govern administration of charities and the charitable gifts they solicit and accept when amending and terminating perpetual conservation easements. This article explains that, when a conservation easement donor makes a charitable gift of a conservation easement and elects to seek a federal income tax deduction, both the property owner and easement holder become subject to federal law governing the creation, monitoring, amendment, and extinguishment of the easement, as well as state laws that protect charitable gifts on behalf of the public. Accordingly, contrary to the representations made in When Perpetual Is Not Forever, neither property owners nor holders can elect to amend or terminate such perpetual easements pursuant to procedures that are inconsistent with such laws.
As the use of perpetual conservation easements to protect private property for the public’s benefit grows in popularity, so grow the challenges associated with these perpetually binding promises. Today’s conservation community faces significant challenges to amending and terminating perpetual conservation easements in the face of changing conditions, landscapes, climate, and public interests. Because of variations among different legal regimes’ guidance for perpetual conservation easements, much remains unsettled regarding perpetual conservation easement amendment and termination. This Article examines inconsistencies in the legal regimes and explores current and emerging common law, legislation, and policies addressing perpetual easement amendment and termination. This Article posits that the conservation community can protect the integrity of perpetual conservation easements by providing clear, consistent guidance through existing or new legal frameworks for state legislatures, courts, landowners, and easement holders, and suggests the means to achieve or craft such guidance.
Rarely in the legal discourse is an author afforded the opportunity to revisit and update a recently published law review article and correct misunderstandings of a response thereto. In the first instance of the Harvard Environmental Law Journal publishing two law review articles by the same author in back to back volumes, Jessica Jay in 2012 authors When Perpetual Is Not Forever: The Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation Easements, which explores the area of law surrounding the amendment and termination of perpetual conservation easements, with specific focus on the existing legal framework, legal regimes, emerging statutory and common law, and states’ approaches to self-guidance. Now, Jay authors Understanding When Perpetual Is Not Forever : An Update to the Challenge of Changing Conditions, Amendment, and Termination of Perpetual Conservation Easements, and Response to Ann Taylor Schwing [The Challenge], which identifies next steps and options for perpetual easement modification and termination guidance, including revisions of the Treasury Regulations § 1.170A-14. The Challenge posits that providing clear, consistent guidance through existing or new legal frameworks ensures that perpetual conservation easements and the purposes they protect will endure over time. This Article informs about developments since the publication of The Challenge and corrects misunderstandings asserted in Ann Taylor Schwing’s article in the same issue of the Harvard Environmental Law Review.
Facing water shortages, states struggle with competing impulses, desiring to restrict water exports to other states, while simultaneously importing water from neighboring jurisdictions. In 1982, the Supreme Court weighed in on this issue through its seminal decision, Sporhase v. Nebraska ex rel. Douglas. Determining that groundwater is an article of commerce, the Court held invalid under the dormant Commerce Clause a provision of a Nebraska statute limiting water export. The issue has again come into the national spotlight, as the Tarrant Regional Water District of Texas challenged Oklahoma legislation limiting water exports, and as Wind River LLC of Nevada contested the denial of its application for a permit to acquire water from Arizona. This Article examines the dormant Commerce Clause as it applies to water export. It argues that Sporhase asked the wrong question, transplanting a relevant issue from the context of the affirmative Commerce Clause -- whether water is an article of commerce -- into the context of the Clause’s dormant aspect. Observing that the U.S. Supreme Court has not addressed the issue of water export regulation directly for more than twenty-five years, this paper suggests three ways in which the Court can bring its water cases into doctrinal harmony with its modern dormant Commerce Clause jurisprudence. In so doing, this Article develops a new analytical paradigm, the “water continuum,” that respects the nuances of state water law and recognizes that not all water has the same constitutional status.
This Article considers the federal preemption of state standards for building appliances and places the issue within the ongoing federalism debate over the role of state standards for “nationwide products” such as automobiles, pharmaceuticals, and other consumer products. Notably, residential, commercial, and industrial buildings make up approximately 40 percent of total U.S. energy demand and the same percentage of U.S. carbon dioxide (CO2) emissions, while the appliances within those buildings are responsible for 70 percent of building energy use, making appliance efficiency a central component of any national effort to reduce energy use and greenhouse gas (GHG) emissions. For decades now, states and local governments have been at the forefront of developing “green building codes” to reduce the energy use and GHG emissions associated with buildings. At the same time however, states are extremely limited in their authority to mandate more energy efficient appliances in buildings because of federal law preempting innovative state standards in this area. After providing a detailed discussion of state and local green building efforts and the history of federal preemption of appliance efficiency standards, this Article explores recent scholarly work in the area of “dynamic” or “polyphonic” federalism to argue for a new approach that allows for state innovation without disrupting the national market for appliances. This Article then suggests various options for revising the federal laws governing appliance efficiency standards that recognize and build on the expertise states have gained in reducing energy use and GHG emissions without creating an unworkable “50-state patchwork” of regulation.
Interstate environmental harms, which occur when decisions or actions in one state produce negative environmental impacts in another state, have challenged environmental law and American federalism for over a century. While even the strongest advocates of state primacy in environmental policy concede that interstate environmental harms necessitate federal governance, federal adjudication and regulation have done little to address the problem. This is due, in part, to a failure to fully understand the causes of interstate environmental harms. This article provides a new framework for understanding interstate environmental harms as political externalities caused by a combination of inadequate information, public process bias, and traditional economic externalities. To address these causes, this article proposes a new state-based approach termed interstate environmental impact assessment. Interstate environmental impact assessment would provide a procedural mechanism for an affected state and its citizens to influence the source state and minimize or prevent interstate environmental harms. The process itself would address the causes of the political externality, and also produce information to improve federal adjudication and regulation when disputes arise over continuing harms.
Careful attention to choice architecture promises to open up new possibilities for environmental protection – possibilities that go well beyond the standard tools of economic incentives, mandates, and bans. How, for example, do consumers choose between environmentally-friendly products or services and alternatives that are potentially damaging to the environment but less expensive? The answer may well depend on the default rule. Indeed, green default rules may well be a more effective tool for altering outcomes than large economic incentives. The underlying reasons include the power of suggestion; inertia and procrastination; and loss aversion. If well-chosen, green defaults are likely to have large effects in reducing the economic and environmental harms associated with various products and activities. Such defaults may or may not be more expensive to consumers. In deciding whether to establish green defaults, choice architects should consider both consumer welfare and a wide range of other costs and benefits. Sometimes that assessment will argue strongly in favor of green defaults, particularly when both economic and environmental considerations point in their direction. But when choice architects lack relevant information, when interest-group maneuvering is a potential problem, and when externalities are not likely to be significant, active choosing, perhaps accompanied by various influences (including provision of relevant information), will usually be preferable to a green default.
The debate over the use of cost-benefit analysis (CBA) in environmental, health and safety regulation represents an important divide in the political culture. Environmentalists and other pro-regulatory interests argue that CBA is anti-regulatory in design and implementation, crowds out non-welfarist values, and impoverishes the political discourse. Proponents of CBA argue that is essential for balanced, welfare-enhancing regulatory decisions, is neutral between pro- and anti-regulatory outcomes, and contributes to transparency and informed political debate. Executive branch practice in both Republican and Democratic administrations has generally been pro-CBA, while Congress has been more skeptical of the methodology in regulatory enactments. This paper interprets Entergy Corp. v. Riverkeeper, Inc., 129 S. Ct. 1498 (2009,) in light of this cultural and institutional divide. It finds that the Court’s opinion by Justice Scalia in that case, with a concurrence by Justice Breyer, represents a shift in judicial presumption in cases where legislation is silent or ambiguous on the question of whether CBA may be used in agency decisionmaking. By contrast to earlier decisions, which suggest a presumption against consideration of cost-benefit comparisons in cases of legislative silence or ambiguity, Entergy arguably employs a pro-CBA presumption. This presumption, however, may be limited to a rudimentary form of CBA rather than the more developed form common in modern practice and encouraged by executive branch guidelines. The paper concludes that the Court’s shift to a presumption favoring this basic form of CBA is a defensible move by the Court and represents an appropriate but provisional resting point in the evolution of the judicial treatment of CBA.
The weaknesses of cost-benefit analysis (CBA) are apparent for all to see. The theoretical underpinnings of positivism and rational choice methodologies have been dealt a significant blow in the post-positivist literature in science, political science and policy studies. Likewise, the performance of CBA itself has been the subject of a significant and persuasive challenge in the legal literature. This article critiques specifically the current federal form of regulatory impact analysis (RIA), centered institutionally in OIRA and centered methodologically in CBA. One of reasons for the continuing dominance of a CBA-centered RIA is the success of its proponents in maintaining that there is no viable alternative. As a general matter, this argument has been discredited in a substantial policy science and post-positivist literature that is based on Harold Laswell's ideas and ambitions for a policy sciences of democracy. Until now, however, no specific proposal for an alternative to a CBA-centered RIA process has been put forward in the legal literature. Our preference for a Laswellian approach to regulatory analysis is pragmatic - it will work better in informing decision-makers and citizens about the actual issues that must be resolved. In our alternative to CBA, the RIA process is problem-oriented, normative, discursive, and transparent. This reorientation eschews the use of CBA, except where it is legally required, because it is unnecessary and irrelevant in other contexts, it lacks sufficient accuracy if relevant, and it pursues a normative vision of regulation that is inconsistent with the tilt towards protecting people and the environment that Congress adopted.
This Article examines how governments in the world's two largest economies are diverging in their approaches to regulating hazardous products and packaging, with major ramifications for manufacturing, waste management, and trade. The European Union is implementing product-oriented environmental regulation based on the principle of Extended Producer Responsibility ("EPR"), which assigns responsibility to manufacturers to take back their products after consumers discard them. In theory, EPR could dramatically alter production practices by internalizing externalities from products and providing incentives for environmentally friendly design. However, practical problems of implementation raise questions about the effectiveness of EPR as a policy tool. This Article explores the European experience with EPR, the reasons for apparent resistance to EPR in the United States, and the implications of a move toward product-oriented environmental law. It critiques EPR on the grounds that the transaction costs of EPR may outweigh its environmental benefits and that practical problems of implementation may preclude the achievement of expected product design incentives. Given the substantial cost and technical hurdles to establishing the legal underpinnings of EPR programs, this Article recommends that the United States consider alternative policy instruments to address environmental externalities from products.
Governments' choice of instrument to address environmental concerns affects not only the relative prices faced by individuals making choices but also their norms or values. This effect on values is important because some argue that traditional instruments (such as taxes and regulations) are insufficient to address new environmental concerns such as climate change. Instead they argue that individuals must change their values - how they view the environment and its relationship to humans. This paper uses the social norms literature from law and economics to examine the impact of one instrument - subsidies - on values in the context of climate change. Climate change is particularly difficult for social norms to address because of its large number, negative payoff nature. Further, law and economics tends to take values as given and does not fully address the internalization of norms or values. This paper discusses the potential impact of government policies both on norms or values that are externally enforced (such as through reputation) and on internalized norms. It argues that governments should consider the impact of instrument choice on both types of norms or values and that subsidies may have a negative impact on environmental norms or values, depending on how they are implemented.
This article argues that international greenhouse gas (GHG) cap-and-trade schemes suffer from inherent problems of enforceability and verifiability that both cause significant inefficiencies and create inevitable tradeoffs between equity and efficiency. A standard result in the economic analysis of international GHG cap and trade schemes is that an allocation of initial permits that favors poor, developing countries (making such countries net sellers in equilibrium) may be necessary not only to further redistributive goals but also the efficiency of the GHG cap and trade scheme. This coincidence of equity and efficiency is, however, unlikely to be realized under more realistic assumptions about enforcement and monitoring. Both economic theory and evidence from the European Union’s emission trading scheme strongly suggest that under an international cap-and-trade scheme, high-marginal-cost GHG emission abaters will not face binding caps that are enforced against them by their national governments. The failure of such high-cost abaters to participate in cap-and-trade schemes causes significant inefficiencies. The prospect of enlisting the participation of such high-abatement-cost, developed-world GHG emitters and restoring efficiencies by opening up trading to include low-cost GHG abatement projects in the developing world is appealing, but ultimately doomed by the inability to verify that such developing world projects generate real GHG emission reductions. Due to inherently imperfect and limited verifiability, there is an inevitable tradeoff between efficiency and equity: the broader the coverage of an international GHG cap-and-trade scheme, the greater its potential to redistribute income to people in poor countries, but the less likely it is to efficiently generate reductions in GHG emissions.
Scholars continue to debate the scope of Congress’s Commerce Clause authority and whether fluctuations in the U.S. Supreme Court’s Commerce Clause jurisprudence place federal environmental regulatory authority at risk. Yet when one analyzes major Commerce Clause cases involving resource regulation since the beginning of the modern regulatory state, a consistent theme emerges: both the Supreme Court and Circuit Courts of Appeal have consistently upheld federal authority to regulate depletable natural resources, the appropriation of which is non-excludable - key characteristics of a commons. Commerce Clause jurisprudence can be interpreted as treating appropriation of this natural capital, here described as “privatized commons resources,” as fundamentally meeting the third test for determining the validity of federal legislation under the Commerce Clause - the “substantial effects” test. Using commons analysis to meet the substantial effects test has the potential to provide a unified justification for federal environmental regulatory authority under the Commerce Clause, a clearer statement of the jurisprudential approach in environmental cases, and more certainty and effectiveness in environmental and natural resources legislation. Commons analysis also assists in answering persistent questions arising in Commerce Clause cases, including when the “aggregation” principle may be invoked to find substantial effects on interstate commerce, what the “object of regulation” is in environmental Commerce Clause cases, and what is the proper scope of federal Commerce Clause authority given constitutional federalism limitations..
The aggregated lifestyles and behaviors of individuals impose significant environmental harms yet remain largely unregulated. A growing literature recognizes the environmental significance of individual behaviors, critiques the failure of environmental law and policy to capture harms traceable to individual behaviors, and suggests and evaluates strategies for capturing individual harms going forward. This Article contributes to the existing literature by approaching the problem of environmentally significant individual harms through the lens of environmental federalism. Using climate change and individual greenhouse gas (GHG) emissions as an exemplar, the Article illustrates how local information, local governments, and local implementation can enhance policies designed to capture individual environmental harms. Local information and community-level implementation may enhance norm management efforts designed to influence GHG-emitting behaviors by (1) allowing for the identification of concrete behaviors that are feasible to target through norm management in a given community; (2) informing the design and content of norm campaigns, including the selection of the abstract norm that will form the basis of the appeal for specific behavioral change; and (3) facilitating effective implementation strategies. This framework supports a preference for local action expressed, but to date largely unexamined, in the broader norm management literature.Additionally, the Article argues that obstacles to using mandates to influence GHG-emitting behaviors may be less formidable when mandates are developed and enforced locally. Local development and enforcement of mandates can reduce intrusion objections because (1) individuals are accustomed to local control over day-to-day behaviors; (2) familiarity with local attitudes and practices enables the design of mandates that avoid intrusion objections; and (3) local governments are in a better position to structure time, place, and manner restrictions that channel behavior while preserving some individual choice. Local design and enforcement of mandates may also minimize the key enforcement challenges of expense, numerosity, and (in)visibility.
This Article examines three models of property that can help us make sense of otherwise intractable takings doctrine. The two best understood models are the "castle" model, which conceptualizes owners as having absolute domain over their property as long as they do not use it to harm others, and the "investment" model, which conceptualizes property as a form of investment in a market economy that creates reasonable expectations likely to yield economic rewards. Ultimately rejecting both of these models as incomplete, the author praises the Supreme Court's return in Lingle v. Chevron USA, Inc. to the Penn Central idea that the Takings Clause protects property owners from unjust obligations while rendering them subject to just obligations. The Article argues that the castle and investment models overemphasize individual rights, while the Penn Central test's notion that owners have obligations as well as rights rests on a conception of "citizenship." This citizenship model provides a useful framework for analyzing when property rights are subject to regulation to prevent harm and when investment-backed expectations are justified; it can thus help direct our attention to the core question of "justice and fairness" that is at the heart of the Takings Clause as it has been interpreted by the Supreme Court.
Advocates for expanded property rights heralded the Supreme Court's 1992 decision in Lucas v. South Carolina Coastal Commission as the dawn of a new era in which landowners would obtain increased constitutional compensation for the burdens of regulation, and which in turn would discourage regulatory initiatives. The post-Lucas era has been a considerable disappointment to property rights advocates, however. Ensuing decisions have confined the categorical takings rule to regulations that result in complete economic wipeouts, a rare phenomenon. On the other hand, courts have expansively interpreted the decision's exemption from compensation for regulations that merely forbid uses prohibited by background principles of property and nuisance law. In fact, a dozen or more categorical defenses have evolved under the Lucas decision's background principles inquiry. Thus, surprisingly enough, Lucas's chief effect has been to make the nature of the claimant's property interest a threshold issue in all takings cases. Instead of increasing the likelihood of either landowner compensation or deregulation, Lucas's principal legacy lies in affording government defendants numerous effective categorical defenses with which to defeat takings claims.
Advances in genomic science are rapidly increasing our understanding of disease and toxicity at the most fundamental biological level. Some say this heralds a new era of certainty in linking toxic substances to human illness. Others are skeptical. In this article I argue that the new sciences of molecular epidemiology and toxicogenomics will evince both remarkable explanatory power and intractable complexity. Therefore, even when these sciences are brought to bear, toxic tort claims will continue to present their familiar jurisprudential problems. Nevertheless, as genomic information is used in toxic tort cases, the scientific developments will offer courts an opportunity to correct mistakes of the past. Courts will miss those opportunities, however, if they simply transfer attitues from classical epidemiology and toxicology to molecular and genomic knowledge. Using the possible link between trichloroethylene and a type of kidney cancer as an example, I describe several causation issues where courts can, if they choose, improve doctrine by a proper understanding of genomic information.
This article examines how the World Trade Organization addressed trade and environment issues through a political process, as opposed to the judicial one, which has been the focus of most WTO legal scholarship. It examines the operation of the WTO Committee on Trade and Environment, treating the Committee as a site to assess central concerns of governance - that is, who governs - in a globalizing economy. Northern environmental interest groups and many northern academics criticize the WTO Committee on Trade and Environment for failing to propose substantive changes to WTO law in order to grant more deference to national environmental policies having extraterritorial effects. The article, through its focus on the positions and roles of state and non-state actors, provides an empirical grounding to better assess the democratic accountability of the WTO's handling of trade-environment matters. It examines the representativeness of national trade agencies before the Committee on Trade and Environment, the impact of a sophisticated WTO international secretariat in framing debates, shaping knowledge and the appreciation of alternatives, and the role of powerful commercial interests and transnational environmental advocacy groups pressing for their conflicting goals. The basic question addressed is who is represented and how are they represented in determining law's contours through the political process at the WTO. Building from this assessment, the article concludes by examining the prospects and limits of a World Environment Organization.
This Article explores the prospects of achieving policy coherence in the field of land use regulation. It explains how, as municipal governments react to pressures and crises at the local level, they discover and adopt new strategies in a constant process of experimentation. Through a properly constructed legal framework, critical information can be relayed from local to higher levels of government, state and federal legislators and judges can respond, and a "system" of law can evolve. Using theories developed in the fields of systems analysis and diffusion of innovations, the Article describes the process by which local communities perceive land use challenges at the grassroots level and react through the adoption of responsive laws. It argues that state and federal governments, by being attentive to local innovations, can hasten needed change and create a coordinated and efficient system of land use law. The Article presents and analyzes case studies at the federal, state, and local level that illustrate how law reform occurs and that demonstrate the interdependence of all the components within the system. It explains the interplay of bottom-up and top-down forces and the importance of developing a legal framework for ordering the roles, resources, and competencies of each level of government involved.
The article offers an explanation for why easement donors appear more generous than donors of other types of property. It suggests that the easement values are high because many easement donors are giving away something that, while possibly valuable to someone else, is of little value to them. It is a legally binding agreement between the owner of the land subject to the easement and the holder of the easement that restricts the development and future use of the land to achieve certain conservation goals. Easement terms are also malleable in the extent to which they explicitly permit post-easement-creation land use. A charitable holder would invite the scrutiny of state and federal officials if it terminated or modified a conservation easement in a way that seemed contrary to the organization's charitable purpose.
In 1995, the U.S. Supreme Court shocked the legal community when it constrained the scope of the affirmative commerce power of Congress in United States v. Lopez. The Court further narrowed the view of federal commerce authority in two subsequent opinions, which together require that when Congress seeks to regulate a wholly intrastate activity on the basis of its substantial effects upon interstate commerce, the activities themselves must be economic or commercial in nature. In contrast to the contracting scope of the affirmative commerce clause, the Court had begun to expand the dormant commerce clause. This article analyzes the relationship between the affirmative and dormant aspects of the commerce clause, and their effect on the federal regulation of natural resources-an inquiry this article labels the "environmental commerce clause." This study supports two principal conclusions. First, the modern Court has been consistently hostile to environmental regulation. Second, there exists a subtle inconsistency between the Court's affirmative and dormant clause analyses.
This essay describes and analyzes the recent report by the Office of the U.N. High Commissioner for Human Rights ('OHCHR') on climate change and human rights, the first effort by an international human rights body to examine the relationship. The OHCHR report reaches several important conclusions: (1) climate change threatens the enjoyment of a broad array of human rights; (2) climate change does not, however, necessarily violate human rights law; (3) human rights law nevertheless places duties on states concerning climate change; and (4) those duties include an obligation of international cooperation. Although some of these conclusions are likely to be controversial, they are all firmly grounded in human rights law. The report portends a sea change in the consideration of climate change by international human rights bodies. Citing the report, the U.N. Human Rights Council has already encouraged its special mandate-holders to address climate change within their specific mandates. It seems likely that the report will also help to spur human rights treaty bodies to take climate change into account as they monitor state compliance with their treaty obligations. It is far less clear, however, whether the consideration of climate change by human rights bodies will affect the negotiation of a new climate agreement.
It is now plain that decades of negotiation toward a binding global climate treaty have failed. Yet, at the same time, many nations are adopting a range of unilateral policies to address climate change. The existing literature on climate policy neglects these unilateral climate regulations because it focuses on the necessity and possible design of a multilateral climate treaty. But these domestic regulations present a unique puzzle: given that climate outcomes are determined by global emissions, and that unilateral regulations inevitably influence incentives to regulate elsewhere, how can domestic action achieve the greatest marginal reduction in global emissions? In other words, how can regulators encourage, rather than discourage, action in other countries?This Article answers this question by describing three ways that unilateral regulation influences incentives to regulate in other countries. First, domestic regulations can interact with other nations’ regulations in a way that increases those countries’ incentive to regulate. Second, unilateral regulation can support incentives to regulate elsewhere by limiting the incentive for polluters to move, or “leak,” to countries with weaker regulation. Third, unilateral regulations that are modular and simple will serve as potential model rules in a wider swathe of countries. These considerations have important implications for regulators looking to maximize the global impact of their unilateral actions. They suggest that, contrary to the received wisdom in climate policy, regulators should prefer regulation with publicly transparent costs. They also suggest that, contrary to the current state and federal preference for cap-and-trade systems and energy-efficiency standards, unilateral regulators should prefer carbon taxes and funding for green technology.
Conditions are ripe for harvesting tax benefits provided to private owners of forest land. As our exploding population paves more paradise, government agencies provide economic incentives to motivate private landowners to engage in conservation activities. With real estate values escalating to unprecedented highs and individual marginal income tax rates and stock market values continuing to decline, now may be a fruitful time to capture inflated real estate values and enhanced tax benefits. This article analyzes five different tax incentives that Congress enacted to encourage forest landowners to engage in conservation activities. The tax provisions presented and analyzed are the reforestation expenditure amortization deduction, the reforestation tax credit, preferential treatment for gains and losses from timber sales and the conservation easement. The article concludes with a hypothetical example of how these tax incentives can mitigate the differences between a private landowner's economic interests and the public goal of preservation.
State preemption laws strictly limit local governments from regulating beyond their borders. Local governments, however, face a broad spectrum of challenges which cannot be confined to municipal borders. These challenges freely flow in and out of many local jurisdictions at the same time. The juxtaposition of limited local government authority and multi-jurisdictional local challenges has the potential to create inefficiencies and to discourage local governments from seeking innovative solutions to the challenges they face. In an attempt to help local governments avoid these inefficiencies, this article investigates whether municipal collaborations can encourage local governments to address broad-based environmental, social, or economic challenges notwithstanding state preemption laws. The article draws on 2009 Nobel Prize winner Elinor Ostrom’s work and applies it to previously unexplored questions of municipal collaboration. Guided by Professor Ostrom’s research on geographically situated, individual private sector collaborations, this article envisions public sector municipal collaborations as forming around common challenges, regardless of geographical location. The article proposes that non-place based municipal collaborations, the theoretical framework of which is not explored in the literature, allow a reconceptualization of existing local government authority. The collaborations seek to capitalize on the power local governments already have without departing from existing legal paradigms. This reconceptualization has crucial implications for overcoming many of the multi-jurisdictional challenges faced by local governments. The objective of the article is not to suggest one local government strategy over another or one level of government action over another, but rather to propose an additional forum for local governments to address pressing local problems. By changing the factors that motivate or discourage cities from working together, the article asserts that some multi-jurisdictional issues are best addressed through collaborations that are not confined by geography.
The 1991 Tuna-Dolphin decision by a GATT arbitral panel implied that a variety of domestic environmental laws and international environmental agreements conflicted with international trade law, and that the conflicts would be resolved by trade tribunals biased against environmental concerns. In response, critics proposed moderate reforms to the international trade regime to address environmental concerns. Rather than incorporate the proposals into the World Trade Organization agreements and the North American Free Trade Agreement, however, governments left the conflicts to the trade tribunals that had created them, and at the same time strengthened the tribunals' independence from political control. Environmental critics predicted disaster. Surprisingly, however, the most important of these tribunals - the WTO Appellate Body - has done what governments failed to do: it has reached a comprehensive resolution of trade/environment legal conflicts that incorporates most of the critics' proposed reforms. This Article argues that the Appellate Body has greened trade jurisprudence not to appease its environmental critics, but to attract political support from governments. While its approach is legally flawed, it is politically defensible and successful in practice; although governments continue to debate trade/environment issues, they have begun to accept, or at least acquiesce in, almost all of the elements of the judicial resolution. As a result, critics and governments may find their way clear to focus their attention on the most fundamental issue underlying the trade/environment debate: how best to reconcile economic growth and environmental protection.
The vast sprawl of the environmental law field makes it a bemusing and confounding puzzle even to those who pursue it as their primary academic vocation. The amorphous breadth and intricate depths of environmental law present special challenges to anyone who tries to navigate the field. This Article addresses several of these challenges, briefly analyzing how environmental curricula are designed, and then suggests a potentially useful new way to conceptualize the realm of environmental law.
As the use of perpetual conservation easements as a land protection tool has grown, so have concerns regarding whether, when, and how such easements may be modified or terminated to respond to changed conditions. This Article argues that the charitable trust doctrine of cy pres should apply to donated conservation easements and, if interpreted as suggested, can provide a principled means of modifying or extinguishing easements that have ceased to provide public benefits sufficient to justify their continued enforcement (or have even arguably become detrimental to the public). The Article argues that a landowner should be viewed as striking the following "cy pres bargain" with the public upon the donation of an easement - the landowner should be permitted to exercise dead hand control over the use of the property encumbered by the easement, but only so long as the easement continues to provide benefits to the public sufficient to justify its enforcement. If, due to changed conditions, the continued protection of the encumbered land for the conservation purposes specified in the easement deed becomes "impossible or impracticable," a court should apply the doctrine of cy pres to restore the appropriate balance between the landowner's desire to exercise dead hand control, and society's interest in ensuring that charitable assets continue to provide benefits to the public. In cases where the donor evidenced a particularly strong personal attachment to the encumbered land and the continued protection of that land for a different conservation purpose is feasible, a court could apply the doctrine of cy pres to modify the easement to change its conservation purpose while continuing to protect the underlying land. Alternatively, in cases where the donor did not evidence a particularly strong personal attachment to the encumbered land, or where the continued protection of that land for a different conservation purpose is not feasible, a court could apply the doctrine of cy pres to extinguish the easement, authorize the sale of the unencumbered land, and direct that the proceeds attributable to the easement be used to accomplish the donor's specified conservation purposes in another location.
Exit fees are a key regulatory tool to allocate the risk of power deregulation. Forty percent of the states have elected to restructure and at least significantly deregulate their retail power sectors. This involves a substantial change in the legal rules that govern one of the essential segments of the economy. Deregulation allows power consumers to leave traditional monopoly utility supply and shift to competitive sellers of power, and in certain states, many consumers have done so. How can states treat the stranded costs of the monopoly utilities? This article explores the issue of exit fee regulation of the various states that have deregulated their retail power sectors. It analyzes Constitutional issues and regulatory policies.
The Endangered Species Act ("ESA") is the paradigmatic "absolutist" statute of American environmental law-mandating that species be protected regardless of cost. However, one formerly underapplied section of the ESA allows the U.S. Fish and Wildlife Service ("FWS") to consider economic costs when designating "critical habitat" for endangered species. A recent Tenth Circuit decision, New Mexico Cattle Growers Association v. U.S. Fish and Wildlife Service, 248 F.3d 1277 (10th Cir 2001), has reinvigorated this provision. Economic analyses performed by FWS in the wake of Cattle Growers have involved increased quantification, formalization, and complexity, a trend that reflects a broader faith in cost-benefit analysis that has recently emerged within both government and academia. This Article argues that the ascendancy of cost-benefit analysis should not replace well-tested, superior approaches to assessing economic costs in environmental standard setting. Throughout the 1970s, Congress generally eschewed formal economic cost-benefit analysis in favor of "short-cut" standards, an approach to environmental regulation that provides for consideration of regulatory costs without requiring the substantial investment necessary for a fully quantified analysis. In contrast, applying formal economic cost-benefit analysis to the ESA is inconsistent with congressional intent and, moreover, simply a bad idea. Cost-benefit analysis forces incommensurable values into a common metric; it produces hopelessly indeterminate results; it clouds transparency and undermines public participation; and it delivers all this regulatory imperfection for an unreasonably high price.
Biodiversity loss represents humanity's most urgent challenge. No other scientific problem, if left unsolved, will take longer to correct. A proper sense of natural history, spanning at a minimum the entirety of the Phanerozoic eon, informs us that human civilization represents the sixth major extinction event in the last 600 million years of geological history. At a practical level, American environmental law has two basic tools for forestalling the apocalyptic destruction of the biosphere. The National Environmental Policy Act (NEPA) and the Endangered Species Act (ESA) as leading environmental super-statutes fulfill a legal function served by constitutional provisions in other countries. American leadership on environmental protection, particularly in the realm of biodiversity conservation, is threatened by the public's failure to understand evolution, natural history, and the significance of the on-going crisis in biodiversity loss. Opinions by Justice Antonin Scalia in prominent Supreme Court controversies over the teaching of evolution give unjustified aid and comfort to advocates of ignorance in American politics. Justice Scalia's pandering undermines thoughtful efforts to invigorate American environmental law with a conservationist ethic. If human society wishes to retard, let alone to reverse, its tragic record of spurring one of only six mass extinctions among complex life forms in the history of the planet, environmental law must embrace the scientifically valided history of the earth as its story of origins.
This article evaluates an environmental protection instrument that the literature has hitherto largely overlooked, Dirty Input Limits (DILs), quantitative limits on the inputs that cause pollution. DILs provide an alternative to cumbersome output-based emissions trading and performance standards. DILs have played a role in some of the world's most prominent environmental success stories. They have also begun to influence climate change policy, because of the impossibility of imposing an output-based cap on transport emissions. We evaluate DILs' administrative advantages, efficiency, dynamic properties, and capacity to better integrate environmental protection efforts. DILs, we show, not only have significant advantages that make them a good policy tool, they also have the capacity to help us fruitfully reconceptualize environmental law in more holistic fashion.
Reintroduction of endangered or threatened species to portions of their range from which they have been extirpated is an increasingly important aspect of endangered species policy. Many species do not reach the protected list until their numbers are severely reduced. At that point, reintroduction may well be necessary to afford the species a reasonable chance of recovery. In 1982, Congress added a provision to the Endangered Species Act (ESA), section 10(j), expressly permitting reintroduction and allowing some flexibility in managing reintroduced populations. Since then, the Interior Department has reintroduced whooping cranes, black-footed ferrets, California condors, gray wolves, and other species to areas from which they had been lost. Many of these reintroductions, especially those involving predators, have been highly controversial. This article reviews Interior's implementation of section 10(j), and concludes that Interior has been too willing to exercise stringent control of reintroduced populations. It routinely designates introduced populations as "nonessential" to the survival of the species in the wild, a designation that affords them lesser protection against incompatible federal actions. The "nonessential" designation has been applied even when the introduced population contains the only members of the species outside captivity. Interior also routinely commits itself to limiting the introduced population to a designated area, often on federal land, capturing and returning any animals that stray from that area. Drawing on tort and takings law as well as the ESA, this article demonstrates that these control measures are not required, do not reduce controversy, and in some cases may not be permitted. It argues that they are inconsistent with the underlying goal of the ESA, which is the recovery of species in a wild, natural state, as free from human control as possible. At a minimum, Interior should explicitly balance the costs to wildness against the ecological and esthetic gains of reintroduction before adopting stringent measures to control reintroduced populations.
Embedded within the structure of much American environmental regulation is a distinction between the new and the existing. This distinction reflects a recurrent political challenge for environmental policymakers: whether and how to mitigate regulatory burdens when policy change upsets settled expectations and investment commitments. Environmental law often grandfathers existing products and pollution sources or provides them with other kinds of transition relief. This paper presents a survey of transition policies in environmental regulation, which is followed by a pair of short case studies drawn from the trucking and pesticide industries. These examples demonstrate that the form and extent of transition relief may be substantially influenced, first, by the cost impacts of regulatory initiatives—which are in turn shaped by the composition and competitive dynamics of the regulated industry—and, second, by path-dependent, change-resistant legal and institutional arrangements in the policy arena.
Energy drives economies and quality of life, yet accessible traditional fuels are increasingly scarce. Federal, state, and local governments have thus determined that renewable energy development is essential and have passed substantial requirements for its use. These lofty goals will fail, however, if policymakers rely upon existing institutions to govern renewable development. Renewable fuels are fugitive resources, and ideal property for renewable technology is defined by the strength of the sunlight or wind that flows over it. When a renewable parcel is identified, a new piece of property is superimposed upon existing boundaries and jurisdictional lines. The entities within these boundaries all possess rights to exclude, and this creates a tragedy with strong anticommons and regulatory commons elements, which hinder renewable development. This Article argues that the many exclusion rights within renewable parcels must be consolidated and governed by a regional agency to address the governance challenges in renewable development, and it analyzes elements of existing regional institutions to suggest the ideal structure of this agency. Once formed, the regional framework should be applied to other areas of energy planning. States and municipalities share oil and gas reservoirs, electricity transmission constraints, and energy generation needs, and collaborative governance in these areas is necessary for a secure future.
Private incentives to innovate and commercialize many technologies are often inadequate in terms of their social benefits. With this nation’s economic leadership position at risk of slipping, the issue of what measures public entities can take to promote the innovation and commercialization of those technologies that are essential to American competitiveness becomes increasingly important. The Patent and Trademark Office (“PTO” or “Patent Office”) has the potential to reduce the divergence between social needs and private incentives for technological progress. By expediting the review of socially-valuable patent applications, the agency could respond to critical public needs, better satisfy the constitutional justification for the existence of the patent system, and help the United States improve its competitiveness. The agency’s recent implementation of a program that purports to fast track the review of applications pertaining to environmentally-beneficial technologies provides a useful, albeit imperfect, model for such beneficial reform.This article brings key insights to a variety of weighty issues including: the proper role of the Patent Office and other regulatory bodies in promoting the innovation and commercialization of high-priority technologies, the appropriate measurement of the “value” of technological progress, the interrelationship between the Constitution and the patent review process, and the relevance of fairness and economic objections to the grant of preferential treatment in a monopoly system.
This Article examines the “Smart Grid,” a set of concepts, technologies, and operating practices that may transform America’s electric grid as much as the Internet has done, redefining every aspect of electricity generation, distribution, and use. While the Smart Grid’s promise is great, this Article examines numerous key barriers to its development, including early stage resistance, a lack of incentives for consumers, and the adverse impacts of the federal-state tension in energy regulation. Overcoming these barriers requires both new technologies and transformative regulatory change, beginning with the development of a foundation of interoperability standards (rules of the road governing interactions on the Smart Grid) that will influence development for many years. This Article describes the federally coordinated standard-setting process started in the 2007 Energy Independence and Security Act, leading to a collaborative dialogue among hundreds of participants, with leadership from the National Institute of Standards and Technology (“NIST”). After setting forth the need for interoperability standards and elaborating on the standard-setting process, the Article focuses on a 2011 order by the Federal Energy Regulatory Commission (“FERC”) that declined to adopt an initial group of standards. While this may appear a step backward, the Article argues to the contrary, finding that FERC’s order supports the flexibility of the Smart Grid Interoperability Panel, the NIST-led process that will produce interoperability standards critical to a wide range of energy saving technologies. FERC’s order allows this process, not a regulator’s imprimatur, to give standards credibility. By holding off on forcing adoption of the standards, but preserving the potential for more significant federal intervention later, it may lead to state adoption of the resulting standards. In this adaptive approach to energy law federalism, neither top-down federal regulation nor private sector standard setting is the exclusive means of overseeing Smart Grid development. FERC’s approach may promote a more positive federal-state relationship in the development of the Smart Grid, and may even portend a more collaborative relationship in energy law federalism generally, avoiding the disruptive jurisdictional clashes that have marked recent attempts to innovate in the electric grid.
Political and legal tools have emerged since the 1970s, and especially in the last two decades, that provide political and legal power to neighborhoods. However, these tools are often used in an ad hoc fashion, and there has been scant analysis of how these tools might work together effectively. This Article asserts that those locations in cities that evoke a "sense of place" are created not just with architectural or landscape design, but by the operation of neighborhood legal tools as well. This Article argues that cities consciously overlay the panoply of emergent neighborhood legal tools as a means of place-building. This approach is referred to in the Article as creation of a de facto "legal neighborhood." This approach does not call for secession of neighborhoods from cities or for the wholsale privatization of public functions, as have others that argue for neighborhood empowerment. Rather, the Article asserts that the collective operation of these neighborhood tools is greater than the sum of their parts, providing a method for civic engagement at a level city-wide politicans feel comfortable serving, in which residents feel comfortable participating, and which is proven to assist the kind of place-making that makes densely settled areas attractive. These features of the neighborhood make understanding legal neighborhoods a necessary component to any effort to address the built environment's social, political, and especially its environmental effects, such as climate change. The Article provides approaches for linking the neighborhood to city and regional affairs, and a history and theory of the concept of the neighborhood as an argument for the important role and function of neighborhoods in American life.
This Article contributes a conference on takings law sponsored by the Georgetown Environmental Law and Policy Institute and held at Harvard Law School October 2005. The Article uses background theories of property and government to provide a partial explanation of the U.S. Supreme Court's precedent on regulatory takings. The Article advances two explanatory theses. First, the Penn Central test is not as ad hoc and case-specific as is often assumed. Although the three factors in this test can vary sharply in application, the different factors are regularly construed together to advance one of two theories of government: a classical theory, reflecting the commitments of classical liberalism, and a modern theory, reflecting commitments associated with a centralized regulatory state. Second, the Court's most moderate Justices have used one or the other of these two theories depending on factors including: whether the right allegedly taken is essential to the species of property to which it is attached; whether legal precedent has historically treated that right as essential to the species of property in question; and how compelling are the reasons to regulate potential abuses of that right. While these insights by no means explain regulatory takings doctrine completely, they are two significant contributing factors in any more comprehensive explanation. They also offer a normative suggestion: Perhaps the Supreme Court's takings jurisprudence is less muddled as a whole than it seems from reading either extreme set of cases in isolation.