In early 2014, I arrived in the southern Indian city of Bangalore, which just two years before had been paralyzed by a garbage-worker strike and a severe shortage of landfill space. The municipal government had responded to public anger over uncollected trash with decrees on waste segregation and composting that went unenforced, and by the time I showed up, not much had changed. In the city that bills itself as India's Silicon Valley, there are still putrid piles of garbage all around town. Bangaloreans accept open dumps in their neighborhoods as a fixture of the landscape, to be seen but somehow ignored. As I walked around town and saw Bangalore's colossal chain of manufacturing, consuming, and discarding, I began to think about my own consumption habits. I'm a professor of environmental law and consider myself ecologically conscious, yet I live at the top of the global pyramid of consumption. Like most Americans, I easily consume more goods and services in one year than most Indians consume in a lifetime (33 percent of Indians earn less than $1.25 per day). As I eyed the piles of trash in Bangalore's streets, I began to wonder: Who really has the garbage crisis? Is it India, or the United States?
In this Article, I demonstrate that the regulatory strategy for energy efficiency is working. Although information disclosure, financial incentives, and other softer alternatives to regulation play a vital role in reducing energy demand, these should be viewed as complements to efficiency regulation, rather than replacements. The regulatory approach has led to substantial cost and energy savings in the past, it has enjoyed bipartisan political support, and it targets products and behaviors that are difficult to address through other policy tools. Given the politics of climate change in the United States, which make federal carbon taxes or a cap-and-trade system infeasible, the regulatory option should be expanded, not abandoned. The regulatory strategy I focus on in this Article is minimum energy performance standards ("MEPS") for products--efficiency benchmarks that manufacturers must meet to sell products in a jurisdiction. I do not discuss automobile fuel efficiency standards in this Article, as that topic has been amply covered elsewhere. Most Americans are familiar with MEPS for products other than automobiles because of refrigerator and air conditioner efficiency standards enacted in the 1980s. This Article, one of the first analyses of MEPS in legal scholarship, discusses the realistic potential for product standards as a climate change strategy. It proceeds in three parts. In Part I, I introduce the goals and structure of MEPS and then sketch their prior implementation in the United States and the European Union ("EU'). Both the United States and the EU have massively expanded their regulation of product efficiency in the past five years, and efficiency standards are one of the principal environmental legacies of President Obama's first term. The EU has, in addition, deployed other strategies to decrease energy consumption, including high gasoline taxes and its Emissions Trading System. The United States is highly unlikely to enact national emissions trading or carbon taxes any time soon. I argue, therefore, that in the near term direct regulation of the energy use of products is one of the few politically acceptable tools in the U.S. climate toolbox. In Part II, I provide a theoretical justification for efficiency standards. I argue that standards are an appropriate response to energy market failures and to the environmental externalities inherent in energy consumption. While alternative approaches to climate change mitigation, such as carbon pricing or energy taxes, also address externalities, they are not likely to drive significant changes in energy usage or equipment purchasing decisions. Although these policies will increase energy prices slightly, consumers will either not notice the price increase or will not care enough to change their purchasing decisions and energy-consumption habits. After discussing these hurdles to behavioral and technological change, I then turn to a regulatory strategy. I address some of the traditional criticisms of command-and-control regulation and show why MEPS offer a sound energy efficiency strategy that is consistent with continued product innovation. Finally, in Part III, I explore the promise and perils of expanding product regulation in the coming years. I outline the potential energy savings that can be expected from feasible product standards, as well as some of the limitations of a regulatory strategy. I also discuss the long-term political viability of MEPS, focusing on the 2011 congressional skirmish over light bulb efficiency standards, which was the first major political backlash in the United States against MEPS. The debate over the light bulb standards pitted energy efficiency against consumer choice, and this values clash, if it continues, could threaten support for efficiency regulation.
Alternative energy supplies get most of the attention in the climate change debate, but reducing energy demand should be the dominant strategy for cutting global greenhouse gas emissions. Dozens of technical studies have concluded that improving the efficiency of automobiles, furnaces, motors, consumer electronics, lighting, air conditioners, and other energy-using products is the cheapest and fastest way to achieve dramatic reductions in greenhouse gas emissions.' In fact, avoiding catastrophic global heating largely depends on how fast energy efficient technology can be deployed over the next few decades. Energy efficiency can be promoted through multiple policies, such as energy taxes, a cap-and-trade system, tax credits for efficient appliances, product labeling, increased government research and evelopment ("R&D"), or direct regulatory limits on the energy consumption of products. Of these policies, the regulatory option seems most intrusive, as it limits consumer choice and requires complex governmental mandates that affect product design. While the other policies nudge consumers in the direction of efficiency, regulation commands energy efficient choices by forcing inefficient products off the market. In this Article, I demonstrate that the regulatory strategy for energy efficiency is working. Although information disclosure, financial incentives, and other softer alternatives to regulation play a vital role in reducing energy demand, these should be viewed as complements to efficiency regulation, rather than replacements. The regulatory approach has led to substantial cost and energy savings in the past, it has enjoyed bipartisan political support, and it targets products and behaviors that are difficult to address through other policy tools. Given the politics of climate change in the United States, which make federal carbon taxes or a cap-and-trade system infeasible, the regulatory option should be expanded, not abandoned.
Imagine if the board of a Fortune 500 company required the company's vice presidents to obtain board approval before implementing any decision. Now imagine that the board is highly polarized and its members are at each other's throats. A recipe for corporate gridlock, right? Amazingly, House Speaker John Boehner, Senator Jim DeMint, and other prominent Republicans are embracing this dubious chain-of-command for the federal government. They are promoting a bill called the REINS Act (Regulations from the Executive in Need of Scrutiny), which would stop any major regulation issued by any federal agency from taking effect until it receives approval from both houses of Congress and the president. Boehner justifies the bill as a "transparency" and "accountability" measure, but it clearly takes aim at the White House, which, with the GOP now in control of the House, is relying heavily on agency rulemaking to advance its agenda in areas such as health care, financial regulation, and clean energy. Since the Progressive era, U.S. administrative law has operated from the premise that agency action should be somewhat insulated from political pressure and horse trading. The REINS Act would mark a radical abandonment of that goal, an attempt to correct an oversight problem that doesn't even exist. It would deliver a body blow to the already-sluggish agency rulemaking process by politicizing it and entangling it in the congressional morass. And, over the long term, it would do serious damage to American health and prosperity—stopping agencies from promulgating important rules that, among other things, would help prevent bank failures, ensure the safety of the food we eat, and control toxic pollution in the air we breathe.
Just as domestic pollution can cause transnational externalities, domestic environmental regulation can create transnational ripple effects in other jurisdictions. In this Article, I show how chemical regulation-long a weak link in the network of U.S. environmental laws-is about to be reshaped and reformed through the extraterritorial ripple effects of new European Union legislation. Contributing to both international law and environmental law scholarship, this Article shows how transnational information flows can be harnessed to end the longstanding drought of data on chemical toxicity in the United States. · Part I of this Article critiques the U.S. chemical regulatory regime, arguing that a lack of toxicity testing and high statutory barriers to regulation have created a persistent data gap that has undermined public health and environmental protections. I then argue that the EU legislation offers a superior model for addressing chemical risks. The EU law makes toxicity testing a default requirement for thousands of chemicals produced or imported in Europe, encourages substitution away from hazardous chemicals, and shifts the burden of proof on the safety of the most hazardous classes of chemicals from government to industry. As a result of these innovations, this next-generation chemical regulatory regime rewards knowledge, rather than ignorance. In Part II of this Article, I shift to an analysis of transnational interactions in chemical regulation. I demonstrate that "regulatory turbulence" from the EU legislationextraterritorial political, legal, and commercial effects-is already changing the political and informational terrain for chemical regulation in the United States. Information on chemical risks, disclosed in Europe, will close longstanding data gaps in the United States and will help build support for reform of U.S. law. Even if the United States does not enact major legislative reforms, its chemical marketplace will increasingly be governed by European norms. Chemical regulation is therefore a case study in how transnational law and global information networks are shaping the future of American environmental law.
The search for greener, less polluting energy supplies has dominated discussions of u.s. climate change strategy, but we often overlook cheaper and faster greenhouse gas emissions reductions achievable through energy efficiency and conservation. In this article, I outline a decade-long "greening demand" agenda to reduce the amount of energy consumed in the United States. The federal government should aim to reduce U.S. energy consumption by fifteen percent by 2016 and twenty percent by 2020 to achieve needed reductions in greenhouse gas emissions. While the United States has achieved notable efficiency gains since the 1970s, several market failures and other barriers continue to serve as obstacles to energy savings. These include principal-agent divergence, high implicit discount rates used in decision making on efficiency upgrades, and outmoded forms of utility regulation. I demonstrate how a greening demand agenda, centered on price signals, performance standards, informational tools, and changes in utility regulation can be used to overcome these barriers. Many of the challenges are technical and scientific, but law will play a central role in structuring incentives and shaping national markets for efficiency innovations. I conclude with some thoughts on the technical and political feasibility of greening demand.
Just as domestic pollution can cause transnational externalities, domestic environmental regulation can create transnational ripple effects in other jurisdictions. In this Article, I show how chemical regulation-long a weak link in the network of U.S. environmental laws-is about to be reshaped and reformed through the extraterritorial ripple effects of new European Union legislation. Contributing to both international law and environmental law scholarship, this Article shows how transnational information flows can be harnessed to end the longstanding drought of data on chemical toxicity in the United States. Part I of this Article critiques the U.S. chemical regulatory regime, arguing that a lack of toxicity testing and high statutory barriers to regulation have created a persistent data gap that has undermined public health and environmental protections. I then argue that the EU legislation offers a superior model for addressing chemical risks. The EU law makes toxicity testing a default requirement for thousands of chemicals produced or imported in Europe, encourages substitution away from hazardous chemicals, and shifts the burden of proof on the safety of the most hazardous classes of chemicals from government to industry. As a result of these innovations, this next-generation chemical regulatory regime rewards knowledge, rather than ignorance. In Part II of this Article, I shift to an analysis of transnational interactions in chemical regulation. I demonstrate that "regulatory turbulence" from the EU legislation- extraterritorial political, legal, and commercial effects-is already changing the political and informational terrain for chemical regulation in the United States. Information on chemical risks, disclosed in Europe, will close longstanding data gaps in the United States and will help build support for reform of U.S. law. Even if the United States does not enact major legislative reforms, its chemical marketplace will increasingly be governed by European norms. Chemical regulation is therefore a ...
Despite decades of effort, the international community has stumbled in attempts to craft tort remedies for victims of transboundary environmental damage. More than a dozen civil liability treaties have been negotiated that create causes of action and prescribe liability rules, but few have entered into force, and most remain unadapted orphans in international environmental law. In this Article, I explain the problematic record of tort liability regimes by developing a theoretical model of liability negotiations grounded in regime theory from political science. Based on this model, I conclude that negotiated liability regimes have foundered because of three main roadblocks: ( 1) interest conflicts between developed and developing states; (2) high transaction costs and low expected payoffs; and (3) incorporation of treaty provisions that are too onerous for states to accept. I conclude that strengthening tort remedies will require changing the substantive content of liability treaties and the process of negotiating them. I also show how liability principles can be strengthened outside the treaty-making process through diffusion of norms against trans boundary environmental damage.
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.
The proposal of the Mescalero Apache Indians of New Mexico to host a nuclear waste storage facility raised difficult questions about political sovereignty, environmental justice, and democratic consent. While the proposal had numerous drawbacks and deserved to be opposed, many of the arguments used against it were conceptually flawed and paternalistic. Arguments decrying bribery of a poor community were particularly weak, while those criticizing targeting of Indian tribes by the United States government and coercion of tribal members by the Mescalero leadership had more merit. The core ethical arguments should be separated from the rhetoric so that policy makers, Native Americans, environmentalists, and industry leaders can better evaluate similar projects in the future.
This chapter analyzes the enormous scope of international instruments addressing hazardous substances and activities by assessing both the regulatory junctures and the specific strategies that governments rely upon to reduce risk. It begins with the challenge of identifying which substances are hazardous to human health or the environment (risk assessment) and then discusses the major treaties that regulate chemical hazards (risk management). This chapter discusses treaties and other international instruments governing chemical production, use, labelling, and disposal as well as those governing industrial accidents. It concludes with a discussion of instruments designed to promote pollution prevention and toxics use reduction.
