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Volume 41, Issue 8 — August 2011


Enabling Investment in Environmental Sustainability

by Heather Hughes

This Article proposes an “environmental practices money security interest” (EPMSI) that lawmakers could add to Uniform Commercial Code (UCC) Article 9.1 The EPMSI would grant priority over earlier investors to financers whose extensions of credit enable debtors to invest in improving environmental impact.

Administrative Law, Filter Failure, and Information Capture

by Wendy E. Wagner

There are no provisions in administrative law for regulating the flow of information entering or leaving the system, or for ensuring that regulatory participants can keep up with a rising tide of issues, details, and technicalities. Indeed, a number of doctrinal refinements, originally intended to ensure that executive branch decisions are made in the sunlight, inadvertently create incentives for participants to overwhelm the administrative system with complex information, causing many of the decisionmaking processes to remain, for all practical purposes, in the dark. As these agency decisions become increasingly obscure to all but the most well-informed insiders, administrative accountability is undermined as entire sectors of affected parties find they can no longer afford to participate in this expensive system. Pluralistic oversight, productive judicial review, and opportunities for intelligent agency decisionmaking are all put under significant strain in a system that refuses to manage—and indeed tends to encourage—excessive information. This Article first discusses how parties can capture the regulatory process using information that allows them to control or at least dominate regulatory outcomes (the information capture phenomenon). It then traces the problem back to a series of failures by Congress and the courts to require some filtering of the information flowing through the system (filter failure). Rather than filtering information, the incentives tilt in the opposite direction and encourage participants to err on the side of providing too much rather than too little information. Evidence is then offered to show how this uncontrolled and excessive information is taking a toll on the basic objectives of administrative governance. The Article closes with a series of unconventional but relatively straightforward reforms that offer some hope of bringing information capture under control.

Climate Change and U.S. Interests

by Jody Freeman and Andrew Guzman

There is, after years of debate, a widespread though not universal consensus in the United States that climate change is real, that it is primarily the result of human activity, and that it poses a serious global threat. A consensus on the appropriate U.S. response, however, remains elusive. While the new focus on climate change suggests that the United States may play a key role in attempts to negotiate a new international agreement to reduce global emissions,2 there is serious debate in academic and policy circles over whether doing so would be in the national interest. Indeed, some argue that a straightforward cost-benefit analysis weighs against U.S. action.

Environmental Enforcement in Dire Straits: There Is No Protection for Nothing and No Data for Free

by Victor B. Flatt and Paul M. Collins Jr.

While much of the world debates what our environmental laws should be, the less esoteric question of whether the environmental laws we already have are being properly enforced continues to be insufficiently examined. As we approach the fortieth anniversary of modern environmental law, the answer to this “$64 billion question” still is not clear.


Comments on Administrative Law, Filter Failure, and Information Capture

by Howard A. Learner

Professor Wagner presents a strong and provocative set of arguments on how information overload is creating barriers to public participation, obfuscating the most important information for decisionmaking, and capturing and clogging the administrative rulemaking process. The forest can, indeed, become obscured by the trees when it comes to effective, efficient, and fair administrative agency decisionmaking.

A Reply

by Jody Freeman and Andrew Guzman

We wish to begin with a note of thanks to Richard Morgenstern, Jeffrey Hopkins, Laurie Johnson, Daniel Lashof, and Kristen Sheeran for their comments on our article, Climate Change and U.S. Interests. The comments have helped our own thinking on the subject, and it is gratifying to know that our paper stimulated such thoughtful responses. In the few pages we have for our reply, we focus on the claims that are most important and in the greatest tension with our article.

Review of Freeman and Guzman’s Climate Change and U.S. Interests

by Jeffrey Hopkins

Jody Freeman’s and Andrew Guzman’s article, Climate Change and U.S. Interests, was engaging and convincing in many aspects, though I am not sure that the parts that engaged and convinced me were the parts that Freeman and Guzman intended. While I find their introductory premise flawed, these flaws are not fatal. Still, the material that follows must necessarily be updated and enhanced.

Critiquing the Critique of the Climate Change Winner Argument

by Richard D. Morgenstern

Developing a rational, globally efficient time path for pricing or controlling greenhouse gas (GHG) emissions presents daunting challenges to policy makers, with large scientific uncertainties, and the absence of consensus over the long term goals of climate policies. In their article Climate Change and U.S. Interests, Jody Freeman and Andrew Guzman (FG) attempt to debunk what they label the “climate change winner” argument, i.e., the notion that the United States is likely to fare relatively well in a warmer world, at least compared to most other nations, and is thus not rationally compelled to invest in expensive mitigation efforts that may largely accrue to the benefit of others. Focusing on the integrated assessment models (IAMs), FG argue that the models are “methodologically limited in ways that systematically skew toward an understatement of . . . [damages].” Their conclusion: damage estimates derived from the IAMs are too low by an order or magnitude, not including a number of impact categories they are unable to quantify.

A Response to Climate Change and U.S. Interests

by Kristen A. Sheeran, Ph.D.

Economic analysis occupies a central role in national debates over climate and energy policy. As the scientific consensus on climate change becomes clear and unambiguous, the case for inaction on climate change is increasingly argued on grounds that it will be too costly to initiate more than token initiatives. While many scientists advocate stringent emissions targets aimed at stabilizing atmospheric greenhouse gas concentrations during this century, recent economic models of climate change recommend a more cautious approach, involving only modest early actions to limit emissions with gradually increasing limits over time. Freeman and Guzman provide an excellent reckoning of the “fatal flaws” in economic analyses of climate change impacts that explain the disconnect between climate science and economics.

Comment on Climate Change and U.S. Interests by Freeman and Guzman

by Laurie T. Johnson and Daniel A. Lashof

In this sobering article, Freeman and Guzman (FG) challenge the argument that the United States could be a “climate change winner,” which asserts that, due to its temperate climate and advanced economy, climate change will benefit the United States relative to other countries or even in absolute terms. They argue that, setting aside any moral argument that the United States has an obligation to act aggressively to reduce emissions, it is independently in its self-interest to do so.