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This book provides an introduction to environmental protection and how it has worked for the last forty years, examines its successes and failures, and suggests ways it could be improved, taking into consideration new environmental problems such as global warming and ocean degradation, as well as recent economic challenges. This page will suggest questions for class discussion, readings and video resources.
Q: How would you characterize federal agencies’ primary method of regulating?
Q: Describe how a “cap and trade” approach to environmental regulation works.
Q: What do you think about “cap and trade,” as compared to a “hierarchical” approach: Is the former an improvement over the primary regulatory system, or capitulation to industry?
Q: Do you think “cap and trade” is applicable to environmental problems other than air pollution?
Q: Under a cap-and-trade system, do you think emissions allowances should be sold, given away, or given away for a specific period of time and then sold? If you think allowances should be sold, do you think the price should increase over time, or stay the same?
Q: Do you think emissions caps should stay at the same level, or decline over time?
Bruce A. Ackerman & Richard B. Stewart, Reforming Environmental Law, 37Stanford Law Review 1333 (1985).
David Attenborough, Planet Earth: Shallow Seas: Living Reefs (BBC Video; Burbank, CA: distributed in the USA and Canada by Warner Home Video, 2007); contains footage of Indonesian coral reefs and schooling fish online from the Discovery Channel, at: http://dsc.discovery.com/videos/planet-earth-shallow-seas-living-reefs.html; the series is also available on DVD from libraries.
Q: Do you think the federal government is in the best position to regulate local environmental problems? Why or why not?
Q: Describe EPA’s National Ambient Air Quality Standards and how the 1970s Congress intended the system to work. What do you think of this system?
Q: Say, hypothetically, a primarily agricultural state and an industrial state are adjacent to each other, and prevailing winds blew the latter’s air pollution across state lines, so that the agricultural state violated NAAQS but the industrial state did not. If you were the governor of the agricultural state, what recourse would you have? NB: Assassination of the industrial state’s governor or environmental administrator is not an option.
E. Donald Elliott, Portage Strategies for Adapting Environmental Law and Policy During the Logjam Era, 17 N.Y.U. ENVIRONMENTAL LAW JOURNAL 24 (2008).
William F. Pedersen, Adapting Environmental Law to Global Warming Controls, 17 N.Y.U. ENVIRONMENTAL LAW JOURNAL 256 (2008).
Q: Discuss the pluses and minuses of different forms of market-based environmental regulation, including cap and trade.
Q: What do you think about information disclosure as a network tool. Consider the possibility that government or industry could “fudge the numbers.”
Q: Which, historically, has been more aggressive in protecting the environment, the federal government or individual states’ governments? Why do you think that is?
Q: What kinds of environmental problems do you think are best addressed by states or localities, and which do you think lend themselves better to national regulation? Why?
Q: In the difficult economy of the early 21st century, how do you feel the financial burden of environmental regulation should be balanced against current or future benefits? Consider the question in the context of climate change, the existence of which many dispute and which, if it does exist, might not significantly affect current generations. Hypothesize that you are members of the U.S. Senate debating the costs of proposed climate change bills.
Q: Discuss how regulating a specific aspect of the environment, say water pollution, often has unexpected and unwanted results. What are some of the difficulties in changing our current, compartmentalized way of regulating air and water pollution, endangered species, etc., as discrete and unrelated problems, into a system that incorporates crosscutting approaches?
Cary Coglianese, The Managerial Turn in Environmental Policy, 17 N.Y.U. ENVIRONMENTAL LAW JOURNAL 54 (2008).
Bradley C. Karkkainen, Framing Rules: Breaking the Information Bottleneck, 17 N.Y.U. ENVIRONMENTAL LAW JOURNAL 75 (2008).
Soo-Yeun Lim, Mandatory Corporate Greenhouse Gas Emissions Disclosure to Encourage Corporate Self-Regulation of Emissions Reduction, 17 N.Y.U. ENVIRONMENTAL LAW JOURNAL 854 (2008).
Kimberly Ong, A New Standard: Finding a Way to Go Beyond Organic, 17 N.Y.U. ENVIRONMENTAL LAW JOURNAL 883 (2008).
Katrina M. Wyman, Rethinking the ESA to Reflect Human Dominion over Nature, 17 N.Y.U. ENVIRONMENTAL LAW JOURNAL 490 (2008).
Jonathan Keeling, producer; David Pearce, ed.; & David Attenborough, narrator,Beavers: The Master Builders? (London: BBC; Mississauga, Ont.: McNabb & Connolly [distributor], 2003), is currently unavailable in the U.S., but several segments are available on YouTube: Beaver Facts, How Beavers Build a Lodge, and Beavers in the Snow.
Q: How would you go about regulating the combustion of fossil fuels to control global warming? Would you focus on car & truck emissions, developing renewable energy sources, controlling industrial emissions, encouraging individuals’ efforts, or all of the above? Why?
Q: Would your approach to regulating greenhouse gases involve a cap and trade program, an emissions tax, or would it use the existing framework of the Clean Air Act? Why?
William Nordhaus, A Question of Balance: Weighing the Options on Global Warming Policies (New Haven: Yale University Press, 2008).;
William F. Pedersen, Adapting Environmental Law to Global Warming Controls, 17 N.Y.U. ENVIRONMENTAL LAW JOURNAL 256 (2008).
Jonathan B. Wiener, Radiative Forcing: Climate Policy to Break the Logjam in Environmental Law, 17 N.Y.U. ENVIRONMENTAL LAW JOURNAL 210 (2008).
Q: Is the regulation of air pollutants currently covered by by the current Clean Air Act, such as sulfur dioxide, particulate matter, and nitrogen oxides, different from or related to the regulation of greenhouse gases such as carbon dioxide and methane? How?
Q: Can you think of some flexible methods to improve air pollution regulation other than those mentioned in the book?
Q: Which do you think is the better approach: regulating many sources of air pollution through state implementation plans, or direct federal regulation of a few large sources that produce the most criteria air pollutants, such as stationary sources and new vehicles? Why?
Q: Which do you think is most effective: the federal government’s setting specific limits on emissions (“command and control” regulation, aka “hierarchical regulation”), or enlisting industry cooperation through market mechanisms and economic incentives?
National Research Council, Air Quality Management in the United States(Washington, D.C.: National Academies Press, 2004).
David Schoenbrod, Joel Schwartz & Ross Sandler, Air Pollution: Building on the Successes, 17 N.Y.U. ENVIRONMENTAL LAW JOURNAL 284 (2008).
Q: Federal clean water legislation was first enacted in the 1970’s. What difficulties do you see with revising the Clean Water Act to control nonpoint water pollution sources from factory farms that have arisen since its enactment and which the Act did not anticipate?
Q: Ranchers and farmers, as you have read, are small but powerful interest groups that can thwart Congress when it attempts to protect natural resources for the benefit of the public as a whole. How can Congress employ privatization and market forces to achieve the goal of retiring grazing permits and encourage states to impose regulations on farmers?
Q: How do you think Congress could allocate conflicting uses in an ocean zoning scheme without being controlled by special interest groups such as those mentioned in the preceding question?
Kai S. Anderson & Deborah Paulus-Jagric, A New Land Initiative in Nevada, 17 N.Y.U. ENVIRONMENTAL LAW JOURNAL 398 (2008).
Jonathan Cannon, A Bargain for Clean Water, 17 N.Y.U. ENVIRONMENTAL LAW JOURNAL 608 (2008).
Josh Eagle, James N. Sanchirico & Barton H. Thompson, Jr., Ocean Zoning and Spatial Access Privileges: Rewriting the Tragedy of the Regulated Ocean, 17 N.Y.U. ENVIRONMENTAL LAW JOURNAL 646 (2008).
John D. Leshy & Molly S. McUsic, Where’s the Beef? Facilitating Voluntary Retirement of Federal Lands from Livestock Grazing, 17 N.Y.U. ENVIRONMENTAL LAW JOURNAL 368 (2008).
G. Tracy Mehan III, Establishing Markets for Ecological Services: Beyond Water Quality to a Complete Portfolio, 17 N.Y.U. ENVIRONMENTAL LAW JOURNAL 638 (2008).
J.B. Ruhl, Agriculture and Ecosystem Services: Strategies for State and Local Governments, 17 N.Y.U. ENVIRONMENTAL LAW JOURNAL 424 (2008).
Barton H. Thompson, Jr., Ecosystem Services & Natural Capital: Reconceiving Environmental Management, 17 N.Y.U. ENVIRONMENTAL LAW JOURNAL 460 (2008).
Nicholas Smallwood, The Role of U.S. Agriculture in a Comprehensive Greenhouse Gas Emissions Trading Scheme, 17 N.Y.U. ENVIRONMENTAL LAW JOURNAL 936 (2008).
Other ant photographs by Daniel Kronauer are located here:
Q: Do you think Congress, EPA, or a new kind of expert commission as described in chapter 7 should make specific decisions, such as about where to set emissions caps, or whether to sell or distribute emissions allowances? Bear in mind that one of the reasons the administrative state was created in the first place was to place detailed decisions in the hands of experienced and knowledgable agency experts.
Q: Do you think that the benefits of regulating should always be weighed against the expense (to current as well as future generations) of regulating, or do you think that when the health and welfare of the population, even in some cases their very lives, are at stake, no expense should ever be spared?
Q: Administrative agencies are under no statutory obligation to read or consider comments from the public on proposed regulations, although they must offer interested parties the opportunity to submit them for a specific period of time. Do you think Congress should require agencies to consider the comments they receive, given the staggering number some proposed rules generate, the administrative burden that could ensue, and the potential delays in finalizing rules?
Michael A. Livermore, Cause or Cure? Cost-Benefit Analysis and Regulatory Gridlock, 17 N.Y.U. ENVIRONMENTAL LAW JOURNAL 107 (2008).
Angus Macbeth & Gary Marchant, Improving the Government’s Environmental Science, 17 N.Y.U. ENVIRONMENTAL LAW JOURNAL 134 (2008).
Richard L. Revesz & Michael A. Livermore, Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health (New York: Oxford University Press, 2008).
Supplemental data for Visalberghi et al., Selection of Effective Stone Tools by Wild Bearded Capuchin Monkeys, 19 (3) Current Biology 213 (2009), at:http://www.cell.com/current-biology/supplemental/S0960-9822(08)01624-2 contains five short videos of the monkeys at work cracking nuts.
Monkey tool usage: Hammer and Anvil, from the BBC’s documentary seriesNatural World’s episode 3 entitled Clever Monkeys, narrated by Sir David Attenborough, 2008, is available on YouTube, at: http://www.youtube.com/watch?v=-G60UCeXFp0&feature=related
Q: As you may know, the House of Representatives passed the American Clean Energy and Security Act of 2009, H.R. 2454, on June 26, 2009, but as of Feb. 10, 2010, it had been on the Senate Legislative Calendar for over seven months. EPA issued a finding on Dec. 7, 2009, showing that greenhouse gas emissions endanger public health and welfare and enabling it to regulate those emissions under Massachusetts v. EPA, but several subsequently introduced bills (e.g., H.R. 4396, S.J. Res. 26, H.R. 4572) would, if enacted, prevent its ever doing so. Furthermore, the recent special election in Massachusetts resulted in the Democrats losing their filibuster-proof majority in the Senate, which may render meaningful climate legislation in the current Congress unlikely, if not impossible.
What do you think about this particular Congressional logjam? How would you change H.R. 2454 (or craft an entirely new climate change bill) using the principles you have learned from reading Breaking the Logjam: Environmental Protection That Will Work to create a bill that could pass in the Senate, survive a conference committee, and be signed into law by the President?
Reading & videos:
Lu Chuan, director, Mountain Patrol: Kekexili (Culver City, Calif.: Sony Pictures Home Entertainment, 2006) (winner: Berlin & Tokyo International Film Festivals; Sundance Film Festival, Grand jury prize nominee); 89 minutes.
Summary: When Beijing journalist Ga Yu arrives in a remote Tibetan village, he immediately finds himself embedded in a relentless manhunt across the barren waste lands of Kekexili. Acting without the Chinese government’s approval, this ragtag group of impoverished vigilantes has sworn to capture or kill the poachers responsible for decimating the sacred antelope of Kekexili. The DVD is widely available at public and university libraries.
Alex Chadwick, Chang Tang’s Endangered Antelope: Radio Expeditions: Bittersweet Trek Finds Rare Chiru Birthing Ground, National Public Radio, April 15, 2003, at: http://www.npr.org/templates/story/story.php?storyId=1232625 (includes a video of a migrating herd of female chiru, a video of a newborn chiru at the birthing ground, and a photo of a pile of bloody carcasses of slaughtered chiru that might be disturbing to sensitive people).
Q: Are climate change and air pollution the same, different, or interrelated problems? Why?