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This Month's News & Analysis

Volume 48, Issue 8 — August 2018


Analysis of Environmental Law Scholarship 2016-2017

by Stephanie M. Biggs, Linda K. Breggin, Claire B. Johnson, and Michael P. Vandenbergh

The Environmental Law and Policy Annual Review (ELPAR) is published by the Environmental Law Reporter in partnership with Vanderbilt University Law School. ELPAR provides a forum for the presentation and discussion of some of the most creative and feasible environmental law and policy proposals from the legal academic literature each year. This Comment highlights the results of the ELPAR article selection process and reports on the environmental legal scholarship for the 2016-2017 academic year, including the number of environmental law articles published in general law reviews versus environmental law journals, and the topics covered in the articles.

Financial Assurance Mandates: No Substitute for Agency Expertise and Oversight

by Rachel Cleetus, Ph.D.

Zachary Arnold’s article on financial assurance mandates (FAMs) highlights an important issue of growing urgency: the exposure of industrial facilities—-many with toxic products or by-products—to risks of flooding exacerbated by sea-level rise and storm surge. However, the article is far too sanguine about the ability of this one policy tool to protect communities located in proximity to these industrial facilities, and it is overly dismissive of the role of complementary policies including robust chemical regulation, disclosure, and standards for pre-disaster mitigation measures and post-disaster response. Rather than pit these policies against one another using pejorative terms like “command-and-control,” a more thoughtful and comprehensive approach would be to combine elements of these to implement a suite of policies designed to help build the resilience of industrial facilities to climate and extreme weather impacts while prioritizing the safety and well-being of local communities. Finally, to enact any of these policies at the national level will require political will from Congress and the administration—both of which are sorely lacking with respect to addressing climate change.

The Future of FAMs

by Rosalie L. Donlon

Zachary Arnold’s proposal of a policy framework to prevent coastal industrial disasters is quite timely, coming as it does after the 2017 hurricane season on the East Coast, followed by the equally devastating wildfire season in the West. Arnold suggests that imposing financial assurance mandates (FAMs), such as minimum insurance coverage, would induce coastal industries to proactively manage climate adaptation, and thus, proactively manage risk. Arnold points out that government at all levels—local, state, and federal—could do more. A major drawback is that many governments are not encouraging businesses or developers to invest in climate adaptation. Without a government directive, it is likely to take longer to convince businesses of all sizes to be proactive.

Applying a FAMiliar Question of Climate Change Scope and Scale: Financial Assurance Mandates and Coastal Risk Management

by Catherine E.B. McCall

Just as our coasts have been defined and shaped by their surrounding lands and waters, the future scale and scope of climate change impacts in any one location will—in part—be defined by geography and surrounding landscape. Zachary Arnold presents a case for how Financial Assurance Mandates (FAMs) such as insurance or surety bonding could be utilized effectively to reduce the risk communities face from climate-driven impacts that result in coastal industrial disasters. His arguments for how FAMs could help to reduce regulatory and enforcement burdens related to climate-driven industrial disasters could be a positive step toward focusing limited public resources on advancing other climate actions and limiting climate risk and impact costs in other sectors.

Financial Assurance Mandates: A Mechanism to Prevent Climate-Induced Industrial Disaster

by Liz Williams Russell

The challenge of inducing risk reduction and adaptation practice is not a purely environmental one, but the vast impacts of acute and chronic environmental events and changes associated with climate change extend across socioeconomic landscapes. Elevated environmental hazards to communities are increasingly present with severe storms, both inland and coastal. Should a set of conditions evolve to accommodate this challenge, Financial Assurance Mandates could prove to be a valuable option to reduce risks. Should insurers prove interested in providing industrial insurance to induce mitigation, should policymakers prove willing to require industry to insure themselves for the costs associated with climate-based hazards, should flood risk-based modeling capacity receive investment to effectively illustrate flood risk, and should comprehensive mechanisms for valuation of risk response arise, Financial Assurance Mandates could prove to be a valuable tool in a larger adaptation toolkit.

Impact Transactions From a Practitioner’s Perspective

by Ann E. Condon

Collective impact initiatives (CIIs) bring together actors with diverse experiences and perspectives to focus on an issue, with the potential to create new skill sets and solutions to long-standing problems. Professor Crowder posits that the absence of an existing contractual framework is one of the emerging barriers to the effectiveness of CIIs, many of which are currently based on informal relationships and not enforceable agreements. In particular, the author believes we need to develop practical contract drafting strategies to memorialize collective impact strategies. Her article is designed as the first in a series on collective impact. Future articles will review specific contract law issues, recommend governance structures, and explore how collective impact can be scaled as a tool in the regional equity movement. One element that is missing from her article is evidence that organizations working on social projects will gain tangible benefits from adopting a formal contract. Articulating these benefits, perhaps through detailed case studies, should be a key element of Professor Crowder’s future work.

The Prospect of Impact Transactions Through the Eyes of a “Backbone” Organization Practitioner

by John R. Ehrmann

Patience Crowder's article on collective impact agreements summarizes some important considerations that need to take place as the impact transaction approach is further explored. In this piece, the author frames some of the points raised in her article through a practitioner's lens, and adds a few others for future consideration.

The Potential for Funder Networks to Effectuate Collective Impact

by Kristin A. Pauly

Patience Crowder has developed an important Article, which in its present form will significantly benefit the legal community and those organizations that have already embraced the concept of collective impact, perhaps experimented with the approach, or are prepared to act as consultants to communities interested in exploring it. However, there are many within the foundation community who do not yet see themselves participating in this approach at all. If the paper were simplified for a lay audience, philanthropic leaders could be inspired by the ways in which the legal profession has begun to address changing their roles to support more collective impact approaches and might begin to think more broadly and deeply about their own current practices. I also encourage Crowder to look into the experiences of funder networks to find examples of the kind of collaborative activity they encourage and that could be directed toward collective impact initiatives.

Some Additional Important Attributes of a Successful Collective Impact Agreement

by Matthew J. Wagner

The concept of formalizing an initiative’s agreements in writing certainly improves its chances of success, but it also introduces challenges which Crowder does a credible job articulating. The comments that emerged from my review of the article involve the other attributes of an initiative and its corresponding written agreement that would serve to improve the chances of a CII’s success. These attributes include the team and its leadership, key drivers of the initiative, the form of and process of carrying out the agreement, and the unaccounted-for costs of the initiative.

The Potential of Visual Rulemaking to Strengthen and Democratize Rulemaking

by Julia Anastasio

Profs. Porter and Watts’ article, Visual Rulemaking, explores the potential of visual images to “strengthen and further democratize” the rulemaking process by promoting transparency, accountability, and increased public participation. This Comment highlights some of the limitations associated with visual rulemaking, drawing upon the authors' experience participating in the Clean Water Rule: Definition of “Waters of the United States” (CWR) rulemaking effort, and offers several recommended guidelines for federal agencies to consider as they inevitably develop a framework to engage in visual rulemaking.

The Transformation Toward Visual Communication and Brevity, aka Lawyers Can Communicate Differently and Still Be Lawyers

by Roger Martella

The premise in Visual Rulemaking, by Professors Elizabeth Porter and Kathryn Watts—that graphics and visuals are gaining traction on the written word in the regulatory setting—seems to threaten the very nature of everything to which lawyers have dedicated their careers. But the transformation they identify is real and necessary. It’s increasingly true that to be successful in persuading an audience to adopt a point of view, lawyers need to transform their advocacy methods to employ new forms of communication, both relying on visuals as the authors discuss and—another concept antithetical to much legal training— adopting a theme of brevity.

Visualizing Accountability and Transparency Measures

by Martha Roberts and Surbhi Sarang

Porter and Watts’ article helpfully underscores the values that should be reflected in the regulatory process, including the worthy goals of making regulatory activities more transparent, increasing political accountability, and encouraging public participation. There is a long, bipartisan history of efforts to further these aims in the rulemaking process; Porter and Watts’ piece illuminates one new emerging strategy to support these goals. As the authors point out, visual rulemaking has the ability to increase transparency of agency action, better convey how agency actions affect the public, and engage a more diverse segment of the public in agency rulemakings—all of which can help assure accountability in implementation of public health and safety protections. In an era during which foundational rulemaking values are under threat, reflecting on the history and future of rulemaking transparency and accountability is an opportunity to examine the importance of these qualities and evaluate current and potential sources of support.

Pouring New Wine Into Old Wineskins? Promulgating Regulations in the Era of Social Media

by Carol Ann Siciliano

In Visual Rulemaking, Prof. Elizabeth G. Porter and Prof. Kathryn A. Watts challenge agencies to break free of dense text and to explore a new universe of “visual rulemaking.” Citing colorful examples from the past few years, the authors urge agencies to make greater use of videos, images, and social media to promote transparency and expand public engagement. The authors also fully acknowledge the legal risks of pouring such new wine into old wineskins. And so they invite legal scholars, courts, and agency attorneys to help move administrative law toward a warmer embrace of these dynamic new practices. In this Comment, an agency attorney with decades of experience in rulemaking analyzes their proposals in relation to agencies’ responsibilities under the Administrative Procedure Act.

Distributed Generation and the Minnesota Value of Solar Tariff

by Ellen Anderson

Prof. Richard L. Revesz and Dr. Burcin Unel propose an “Avoided Cost Plus Social Benefit” valuation protocol for clean distributed energy. Their article establishes that distributed generation (DG) provides a suite of benefits to the grid and to our broader societal goals, and it should be compensated for those benefits, and that DG can also lead to additional costs to the grid and can raise the potential of cost-shifting. But there is a significant gap in their article’s analysis. If rate and tariff designs are constructed with good intentions of fairness and rationality but have the actual effect of stopping DG deployment, then the solutions are fatally flawed. This assertion can be explained by a discussion of Minnesota’s experience with DG. 

Retail Net Metering: It’s Time to Get It Right for All Customers

by Adam Benshoff and Alison Williams

Surely net metering has played an important role in the story about solar development in the United States. But, as a policy, net metering is the equivalent of looking in the rearview mirror. If we want a dynamic, responsive energy system, then we need to look ahead and toward smart rate designs that do not favor certain customers over others. We need rates that work to the benefit of all customers and their unique energy needs. Finally, we need rates that appropriately value investment in the energy grid to ensure that the energy system is reliable, affordable, increasingly clean, and secure for all.


Preventing Industrial Disasters in a Time of Climate Change: A Call for Financial Assurance Mandates

by Zachary C.M. Arnold

Financial assurance mandates (FAMs) may help induce coastal industries to invest in climate change adaptation. FAMs require companies to prove that they can pay for the liabilities they may incur—whether by drawing on their own resources or by bringing in a third party, such as an insurer or surety, to pick up the tab. FAMs are familiar tools whose strengths have been demonstrated in practice as well as in theory. Federal, state, and local regulators use them to reduce the risk of catastrophes of all sorts, from nuclear incidents and oil spills to impacts resulting from abandonment of dangerous facilities. History shows that these measures can be effective and reasonable in cost. And crucially, because they are relatively simple to design and enforce, FAMs are particularly appropriate for use by state and local policymakers, making them well suited to an era of federal gridlock and geographically uneven climate impacts. For these reasons, policymakers should require many coastal firms to buy insurance for the harms their operations may cause to others as a result of the coastal impacts of climate change.

Impact Transaction: Lawyering for the Public Good Through Collective Impact Agreements

by Patience A. Crowder

“Collective impact” is a relatively new terminology emerging out of the philanthropic community for describing structured collaboration among parties who are focused on alleviating a particular social ill. Branded as “a way to better utilize resources and identify effective practices,” a collective impact initiative (CII) intentionally recruits actors from diverse industries and with diverse perspectives to focus on a specific social ill. In many respects, collective impact participants “agree to agree” over the course of an ongoing relationship. Collective impact is in early stages, and barriers to effectiveness are emerging, such as the absence of a contractual framework. Typical CIIs are managed through the strength of the parties’ relationships, not through a written agreement. This Article argues that the collective impact process is best understood through a relational contract context—a contract law theory that looks beyond the parties’ privity to consider the intent and relationships among the parties. More specifically, this Article lays the groundwork for impact transaction—large-scale social change by agreement— by building a framework for drafting relational contracts to enhance the likelihood of the sustainability of CIIs and impact transaction strategies, generally.

Visual Rulemaking

by Elizabeth G. Porter and Kathryn A. Watts

This Article uncovers an emerging and significant phenomenon that has gathered momentum only within the last few years: the use of visual media to develop, critique, and engender support for (or opposition to) high-stakes, and sometimes virulently controversial, federal rulemakings. Visuals have played little historical role in rulemaking. Instead, the rarified realm of rulemaking has remained technocratic in its form—defined by linear analysis, blackand- white text, and expert reports. Now, due to the explosion of highly visual social media, a visual transformation in rulemaking has resulted in what might at first appear to be two separate universes: on one hand, the official rulemaking proceedings, which even in the digital age remain text-bound, technocratic, and difficult for lay citizens to comprehend, and on the other hand, a newly visual— newly social—universe in which agencies, the president, members of Congress, and public stakeholders sell their regulatory ideas. But these universes are not in fact distinct. Visual rulemaking—even when it is outside the four corners of official rulemaking proceedings—is seeping into the technocracy. This has significant theoretical implications for administrative law. We conclude that agencies’ use of visuals to market their regulatory agendas furthers two fundamental theoretical justifications underpinning the regulatory state: transparency and political accountability. In addition, visual tools have the potential to democratize public participation and to enable greater dialogue between agencies and the public. Despite these theoretical advantages, visual rulemaking raises serious risks. Visuals may oversimplify complexities, appeal to emotions over intellect, and fuel partisan politics. Visual rulemaking also implicates significant doctrinal questions, including fundamental provisions of the Administrative Procedure Act and prohibitions on agency lobbying. While none of these doctrinal issues threaten to obstruct visual rulemaking entirely, they do suggest that agencies’ use of visuals may need to change some around the margins. Ultimately, we conclude that administrative law doctrine and theory can and should welcome the arrival of visual rulemaking.

The Future of Distributed Generation: Moving Past Net Metering

by Richard L. Revesz and Burcin Unel

Utilities concerned about lost revenues have begun urging state legislatures and public service commissions to impose fixed charges for net metering customers and to decrease the rate of compensation those customers receive for the energy they generate. Environmentalists and individuals seeking to generate their own electricity for financial or libertarian reasons have argued opposite positions. One goal of this Article is to evaluate the respective arguments. An ideal pricing mechanism would take into account the potential environmental and health benefits of cleaner energy and the grid-related costs resulting from distributed generation. Our second goal is to provide an alternative compensation structure for distributed solar generation that can also be used consistently and fairly for all types of energy sources. Our final goal is to highlight the need to analyze net metering in the context of more comprehensive energy policies, such as much-needed reform in electricity pricing policy.

Relative Administrability, Conservatives, and Environmental Regulatory Reform

by Blake Hudson

While the nation has made great progress on a number of environmental fronts, the size and cost of the federal environmental regulatory bureaucracy have come under sharp criticism. One alternative policy approach—long available, but underutilized—is based on the straightforward governmental use of line drawing (also known as “geographic delineations”). These policies include the creation of development buffer zones as well as urban growth boundaries and density/open-space controls that may be utilized to protect air, water, biodiversity, and other resources targeted by federal environmental laws. These policies have very low administrative costs relative to current federal environmental statutes, which consume vast amounts of economic, human, and temporal resources. In this way, these policies have what we can call high “relative administrability.” Even so, geographic delineation policies remain largely unutilized. The question is: why? One important reason is the failure of conservative policymakers and commentators to accept that prescriptive line-drawing policies actually support a number of principles valued by conservatives. In fact, geographic delineations offer great promise as policies that many, if not most, environmentalists would support but that would also provide more efficient environmental management from a conservative perspective—at least more efficient than relying predominantly on expansive federal control like we do today.


Hybridizing Law: A Policy for Hybridization Under the Endangered Species Act [Abstract]

by John A. Erwin

With the new technologies, many species we are currently protecting could technically be unsuitable for protection based on a rigid interpretation of the ESA. A defined hybrid policy must be adopted, taking into consideration the twin aims of protecting genetic lineages and protecting ecosystems.

Precautionary Federalism and the Sharing Economy [Abstract]

by Sarah E. Light

To date, scholars and policymakers have focused primarily on whether and how the government should regulate the sharing economy—that is, on what form, if any, regulation should take. This Article focuses on a logically antecedent question—who should decide. Using the potentially significant, yet uncertain, environmental impacts of Uber and Lyft as a case study, this Article argues that regulatory authority should be allocated according to the principle of precautionary federalism.

In the Courts

DOI not required to update EIS for federal coal program.

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In the Courts Archive

In the Agencies

CEQ proposes to revise its NEPA regulations.

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In the Agencies Archive

In the Congress

Senate passes Federal Power Act hydropower amendments.

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In the Congress Archive

In the States

California proposes new groundwater protection areas.

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In the States Archive