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Highlighting Innovative Law and Policy Proposals to Advance Environmental Problem Solving

Thursday, August 18, 2016
Linda Breggin

Linda Breggin

Senior Attorney; Director of the Center for State, Tribal, and Local Environmental Programs

At a time when environmental challenges are rising to the forefront of global conversation, it is more important than ever to think creatively about solving the world’s most pressing environmental crises. Academics are a key source of new ideas, yet all too often they talk among themselves, and their ideas are not vetted with policymakers, let alone adopted in the law and policy arena. To help bridge the gap between academic scholarship and environmental policymaking, each year, Vanderbilt University Law School (VULS) students and ELI staff select some of the best articles in the legal environmental scholarship from the previous year. The selection process is part of a class taught by ELI Senior Attorney Linda Breggin and Vanderbilt Law Professor Michael Vandenbergh. The students work in collaboration with ELI Research Associate Aletta Brady, Environmental Law Reporter (ELR) Managing Editor Rachel Jean-Baptiste, and ELR Editor-in-Chief Jay Austin to select the top articles each year. After the students have a narrowed the articles down to a pool of about 20, they meet with an expert advisory committee of environmental professionals who provide input on the articles.

Following article selection, ELI and VULS convene the authors on Capitol Hill, along with commenters from government, nongovernmental organizations, law firms, and corporations, to assess the innovative ideas presented in the articles. Vanderbilt Law students introduce the panels and explain the article selection process at the Environmental Law and Policy Annual Review Conference, which is typically attended by a range of stakeholders, including Hill and federal agency staff, trade press, law firm associates and partners, and nonprofit leaders. The project culminates in a joint ELI/VULS publication, the August issue of ELR’s News & Analysis. It includes condensed versions of the selected articles, and written comments by leading thinkers in the field. The 2015 issue can be found here—or you can subscribe and obtain the current issue.

This year on April 1, 2016, policymakers, academics, scientists, and lawyers convened to discuss several articles, including a piece by Michael Livermore (University of Virginia School of Law) and Richard Revesz (New York University School of Law) in which they argue that Whitman v. American Trucking Associations should be reinterpreted to permit the use of cost-benefit analysis when it would lead to more stringent standards than those derived from health-based considerations. They argue that there is no defensible way to set a permissible level of pollution based on health considerations alone and that national ambient air quality standards generally have been set at levels that are less stringent than those that would result from cost-benefit analysis.

In response, Sally Katzen, former head of the Office of Management and Budget’s Office of Information and Regulatory Affairs, stated that the authors convincingly argued against the conventional wisdom that health-based standards are necessarily more protective than standards based on other considerations. But, she also raised concerns. First, she contended that the authors mischaracterized how health-based standards are set, and that in her experience, costs were not considered in setting standards, although they were considered in the implementation phase. Second, she pointed out that the possibility of a reinterpretation of American Trucking is very unlikely. She explained that “none of the Justices who wrote opinions … even hints that … costs can be considered in setting the standard.” Furthermore, Katzen maintained that “it is not for the courts to rewrite a statute” or interpret it in a way so “at odds” with congressional intent.

Gary Guzy, Senior of Counsel at Covington & Burling LLP also provided comments. He expressed concern that Livermore’s and Revesz’ assessment does not “adequately reflect the degree to which existing health-based standard setting has worked well in delivering key public health and environmental protections under the Clean Air Act.” Additionally, he commented that their assessment does not support the conclusion that “secret considerations” form the basis for the current system. Guzy also commented that the article does not, “sufficiently confront the challenges that would occur from supplanting health-based standard setting in favor of cost-benefit considerations.” The discussion among the authors and the commenters was lively and respectful and highlighted the possibilities and challenges of implementing the authors’ differing views in a policy setting.

The articles selected this year and in prior years can be found here, as well as a list of the authors and commenters. The wide range of perspectives in the room during this one-day annual event creates a rare opportunity for dialogue and conversation among those interested in developing and implementing forward-thinking environmental solutions. If we are to address successfully the environmental challenges of this and future generations, more open dialogue about creative and provocative ideas is needed. We hope that the Environmental Law and Policy Annual Review is a step in that direction.

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All blog posts are the opinion of its author(s) and do not necessarily reflect the views of ELI the organization or its members.