environment legislation essay

The Introduction of Environmental Legislation Essay

Introduction.

Different human activities create hazardous and harmful effects on the environment. Governments in Australia and all over the world try to protect the environmental damage through the introduction of environment-related laws and regulations. Legislations passed may be directed to punish the corporate, business community, or the individuals who damage the environment. Nongovernmental organizations and public agencies work in partnership to conserve the environment and the natural habitat. In Australia, the State, Commonwealth, and the local governments introduce and administers legislation directed towards the protection of the environment.

In Australia, the Commonwealth was established during the merger of the six colonies to become states of one new nation in 1901 (Dorweiler and Yakhou 2004). This merger created a federal government system where power is shared equally among the commonwealth government and the six states (Dorweiler and Yakhou 2004).

Environmental accounting is a field in accounting that offers reports for internal use by organizations. These reports produce environmental information that assists the organizational managers in making decisions relating to the prices, budgeting, and controlling expenditure. Environmental accounting also provides reports for the organizational external use by exposing the environmental information required by the entire public and the financial community. Reports for internal use are also referred to as environmental management accounting (Dorweiler and Yakhou 2004). Most of the time,

State governments monitor the appropriate environment. It is the obligation of the Commonwealth Government to pass laws if the matter of the environment’s condition and safety becomes of great national environmental importance or if it is a state responsibility.

To protect the environment and control pollution in Australia, most states and federal territories enact very similar laws and regulations. The government’s mandate is to enact legislation that guards the environment. Both governments establish and then pass legislation to become a law. These legislations are amended if necessary to keep them up to date. Everyone in Australia adheres to the laws strictly. The individuals, corporations, and business entities that break these laws are fined severely. Through these laws, the governments of the six states have mechanisms to oversee and protect the environment.

This paper discusses the introduction of environmental legislation in different economies. A special focus has been placed on entire Australia particularly the six states and the commonwealth government. The two approaches of the free market and pro-regulatory approaches are discussed in depth. The general environmental legislation is discussed in the first section followed by the environmental pollution laws in Australia. However, the introduction of environmental legislation in an economy poses several effects on the growth and development of the economy. These effects could be negative or positive. The writer supports the introduction of environmental-related laws in an economy as it contributes to the growth and development of the economy. The justifications provided are based on the environmental laws and Acts in the Australian governments of the commonwealth and the six states.

Environmental legislation

The laws and regulations relating to environmental and pollution control in Australia are formed and enforced in three different levels of the commonwealth, central government, and finally the decentralized local governments. The main establishment and administration of these regulations are done at the state level. Commonwealth may formulate laws that are above or at par with those set by the central government. Australian central government may formulate and pass legislation that supports those set by the commonwealth. This shows the state’s responsibility of adhering to international conventions, treaties, and/or policies. To narrow down to the environmental legislation in Australia, such laws are complex and are of great importance to both the commonwealth and the state.

In Australia, the departments of climate and energy formulate policies and laws relating to climate change. To strategize on the management of climate change, the sector is held liable for establishing and administering the 2007 National Greenhouse and Energy Reporting Act. This legislation forms a national avenue for reporting and the passing of information to the citizens. The information to be disseminated includes those of the greenhouse gas emissions and the use of energy in Australia (Baker and Carter 2007).

In Australia, the system of governance is federal, which shares and delegates powers to the central state and the federal government. The federal government’s mandate is to make legislations on specific issues as well as establish the shared powers between the two sets of governments. The central state, on the other hand, is responsible for making laws on the general issues not assigned particularly to the central government. However, federal laws are universal and stand above all the other laws in Australia.

Several environmental laws are administered in Australia ranging from the basic laws and the related laws at the federal, state, and local governments. These legislations address the issues of climate change (Baker and Carter 2007),

Environmental pollution laws in Australia

The historical development of pollution laws in Australia dates back to the colonial era. At this time, pollution control was done at a slower pace because the citizens placed lower emphasis on the need to have an unpolluted environment. The first environmental legislation was administered in the nineteenth century. This legislation was meant to enhance the utilization of natural resources and not the protection of the environment.

When the focus was shifted to pollution control, the area of public health was aimed especially the prevention of water-borne diseases. With the increase in pollution and the growth of industrialization sectors, the number of pollution-related laws increased. There was no relevant legislation to control pollution until the 1950s. Unregulated industrialization in Sydney led to the establishment of the Clean Waters Act of 1970 due to the waterways that were polluted by factory waste.

In the past, pollution control was seen as the responsibility and role of the public health sectors and the affiliated utilities. The penalty to be imposed on the person who breaks the environmental law was lenient until the 1980s when the fine imposed for breaking the Clean Air Act of 1961 and the Clean Waters Act of 1970 was increased to $10 000. This law was amended in 1981 to differentiate the penalties for the corporate from those of the natural persons, by which the penalties for corporate are much higher than those of the natural person.

In the late 1980s, the Australian government made considerable changes to the environmental offenses and the penalties to be imposed. These changes came with the establishment of the Environmental Offences and Penalties Act of 1989 of South Wales. The main purpose of this Act was to provide a tough penalty for pollution offenses. The penalty to be imposed was raised to a maximum value of $1m in the case of a corporation. For the natural person, the Act stipulates that pollution offenses will attract a fine of a maximum value of $150 000 and/or imprisonment for a jail term of seven years (Norbery 2007).

Between the late 1980s and the early 1990s, the Australian government established several laws on pollution. Among the legislation enacted in the late 1980s included, the Environment Protection Act of 1986 formed in Western Australia and the Act stated above. In the 1990s, Australia established the Protection of the Environment Administration Act of 1991 enacted in New South Wales, the Environment Protection Act of 1993 enacted in South Australia, the Environment Protection Act of 1994 formed in Queensland, and the Environmental Management and Pollution Control Act of 1994 enacted in Tasmania (Comino and Leadbeter 2006).

The Australian government proposed and passed a bill on July 1, 2012, to increase the price of carbon to twenty-three US dollars per tonne. The commonwealth treasury devised several models to control the price of carbon and maintain it at par to avoid mistreatment of the consumers by cartels. Despite such models by the Commonwealth Treasury, there is evidence that the carbon tax in Australia will pose an economic impact on the country. However, the mode of distribution of the tax burden was unfair in the sense that the households with low income carried a higher tax burden than the high-income households (McNeill, Meng, and Siriwardana 2011).

Taxes on emissions are levied based on the unit of pollution emitted and the person, business or corporate causing pollution takes into account the external costs of all the emissions. The emissions tax states that the person causing pollution will halt the emissions to a point where any additional cost per unit of pollution is the same as tax (Baumol and Oates 2010).

The National Pollutants Inventory (NPI) is a collection of databases of air, land, and water emissions that can be accessed publicly. Such emissions are from the ninety-three substances and wastes from industrial actions and the emissions from the diffuse sources. NPI aims at assisting the industry and the state with environmental planning, pollution control, and environmental management. It also provides updated information of the emissions and wastes transfers from the industrial actions to the public, minimizes waste, ensures cleaner production, and resource efficiency (Commonwealth of Australia 2012).

The National Greenhouse and Energy Reporting (NGER) was established in 2007 by the Howard government. The purpose of this legislation is the provision of accounting data. The data to be provided should be in line with the greenhouse gas emissions, energy use, and production. The scheme controls the carbon prices as well as directs the policy formulation and informs the Australian inhabitants. It also ensured that the international reporting responsibilities are adhered to by the Australian government and unified the framework for national energy and emissions reporting Australia’s Department of Climate Change and energy efficiency administers this scheme. The department achieves its aim through the environmental legislation that supports carbon price control mechanisms as well as educating the policy formulators and the entire Australian public.

NGER established an overall national standard for reporting and passing information relating to the greenhouse gas emissions, projects, energy consumption, and output values of corporations and governments. The legislation states that the Act is meant to disseminate the government policy, standards, and laws to the Australian public. It also ensures that Australians adhere to the international reporting responsibilities. The act also helps Commonwealth, state, and local government programs and activities by avoiding the duplication of obligations (Baker and Carter 2006).

These pollution laws in Australia are founded based on four principles. The first principle is Pollution Prevention ; the pollution laws, policies, and regulations target the elimination or reduction of polluting products (Comino and Leadbeter 2006). To achieve this goal effectively, other pollution principles should focus on pollution strategies. The second principle is the principle of Integrating Pollution Control . This principle considers the effects of pollution across the air, land, and water. The third principle is the Precautionary Principle . The fourth principle is the optimization of the regulatory mix – this principle attempts to find the optimality in the approaches of pollution prevention and control as well as the market-oriented approaches (Comino and Leadbeter 2006).

A free-market approach to regulation

The free market valuation of the resources helps in determining the real value of environmental safety only if the environmental legislations are administered. Environmental laws and policies encourage the preservation and conservation of environmental resources. This is achieved when the players in the free market establish the actual value of preservation or when the pollution value of the resources is below the non-polluted resources. This implies that the government should allow the free market valuation of the resources by the participants to establish the economically efficient level of pollution (Kyle 1992).

Every organization has financial statements and reports and thus they have accounting information. This information is just like any other product of the business and therefore obeys the laws of demand and supply. Organizations therefore should provide the accounting information to the consumers as per their demand. They must provide the required information at the required levels even without any governing regulation (Deegan 2009).

Regulatory measures and approaches are costly therefore, rather than adopting an expensive approach to climate change management, the cheaper free-market approaches should be adopted in suppressing the rate of energy use and economic development. Policy formulators should try to avoid government involvement in the marketplace, which prevents emission reductions and discourage the use of lower-emission technologies. This approach known as the no-regrets strategy offers both economic and environmental benefits through the encouragement of innovation, inventions, and economic efficiency (Adler 2000).

Pro-regulatory approach to regulation

It is necessary to have regulations or laws to protect the interests of the citizens in every society. Without the regulation, companies and other organizations may decide not to reveal the appropriate accounting information. Companies need to know that the public has a right to access accounting information since it is a public good. They, therefore, spend a lot of money in ensuring that the appropriate accounting information is relayed to the public in form of financial reports (Deegan 2009).

Regulation leads to the mass production of free goods. Regulation, therefore, provides an estimate of the level of accounting information to be provided by the companies to meet the requirements of the public. In the past few decades, there has been a move from the command and control regulatory approach of pollution control, in which legislation clearly states the dos and don’ts to a model by which the enforcers emphasize the outcomes of the law to the environment (Comino and Leadbeter 2006).

The free-market approach ensures equitable distribution of the benefits among all the market players while the regulatory model on the other hand distributes the benefits unequally by directing excess benefits to some parties at the expense of other parties. In most of the free markets, there are little or no transaction costs and thus no party exchanges a valuable resource for another resource of value less than the original one. In this model, one party must perceive that the good of the other party is more valuable for it to be an exchange transaction. For instance, a motor vehicle company will buy land from an individual if the buying price is below the best alternative available. The seller, on the other hand, will engage in the transaction only if the motor vehicle company will buy the land at a value above his valuation and expectation of the land. An exchange transaction will occur only if the two parties agree and both of them will benefit (Kyle 1992).

Potential effects of the introduction of environmental legislation

Positive effects.

The first effect is on the business activities . The environmental legislation in Australia affects Australian businesses. These businesses have a role to play in environmental conservation. The effects that environmental legislation has on businesses depend entirely on the nature of the business activities one engages in. Commonwealth, central, and the local governments establish and enforce the environmental protection legislations together by way of an agreement. Business people need to understand the specific legislations that apply to them. For instance, The Environment Protection and Biodiversity Conservation (EPBC) law evaluate and approves the stages of the concerns of the national environment and culture. This legislation is established by the environment, heritage, and water sector in Australia (Australian Business Website 2011).

This sector also establishes and maintains laws relating to the activities of the sea, culture and heritage, waste management, fuel, and the importation of goods and services. Central government environmental legislation is established by the state and the local government and they touch on the specific business activities through the licenses and permits (Australian Business Website 2011).

The second effect of environmental legislation is on the economic growth of the nation. Research shows that environmental controls reduce the economy of the country and derail economic competitiveness. Economists believe that the recession experienced in the 1990s was due to the environmental legislation and that the economy will grow only if such controls are loosened, however, environmental deregulation is relatively expensive because of the effort of having purified water, air, and land will be reduced or eliminated at all. Because of this wildlife, forests and ecosystems will be endangered nationwide (Meyer 2001)

The third positive effect of introducing environmental legislation is the protection of the unique natural heritage. The federal environmental laws of Australia protect the natural heritage from depletion. The national environment laws, for example, protect Australia’s unique iconic landscapes. The landscapes include the coral reefs in the tropical regions and mountains covered by snow. If not regulated, such unique landscapes will be destroyed. The Great Keppel Island forms the unique heritage listed in the world. The Queensland government of Australia passed a law that led to the establishment of a massive resort in 2009. This resort had three hundred apartments, a shopping mall, a golf center, and a sports field. However, the Federal government disapproved of this following the national environmental law. They argued that the resort would affect negatively the national heritage site (Ingwersen 2008).

The fourth positive effect of the introduction of environmental legislation concerns the protection of environments from the emission of harmful pollutants and the dumping of dangerous wastes to the consumers. Environmental legislations prevent the dumping of wastes into the seawater and the emission of harmful pollutants into the air. Wastes that are harmful to health include oil, sewage wastes, and other garbage. Dumping involves the release of wastes to the water either from the routine incidental operations to the accidental causes (Bricknell 2010).

The carbon tax legislation in Australia of twenty-three dollars per tonne reduces the carbon dioxide emissions to the air that causes pollution . This legislation allows the Australian government to reduce carbon dioxide emissions. The research finding shows that the Carbon dioxide emissions reduced by approximately twelve percent during the first year of the legislation operation (McNeill, Meng and Siriwardana 2011).

Negative effects of the introduction of the environmental legislations

By establishing and administering the environmental legislation, the government makes many problems instead of solving them . When the free market is regulated by the state, they tend to cause other problems. Research shows that in an attempt by the government to solve a problem, they often worsen the problem. For instance, the federal policy of subsidizing fossil fuels results in more environmental pollution through carbon emissions. This will finally lead to climate change, which could adversely affect human beings (Harbin 2011).

The second negative effect of the introduction of carbon tax legislation in Australia is the economic crisis and the increase in the living standards of people . Research shows fabulous findings on the effects of the Carbon tax in Australia of twenty-three dollars per ton. For instance, the legislation will influence Australia’s Gross Domestic Product (GDP) by reducing it to 0.68 percent, increasing the prices of essential goods and services by 0.75 percent. Another effect of the carbon tax legislation is the increase in the price of electricity by approximately twenty-six percent (McNeill, Meng, and Siriwardana 2011).

The third negative effect of the introduction of environmental legislation is the increased cost of manufacturing . Restrictions of the pollution emissions cause increased economic costs of environmental regulations. Such environmental regulations include the Clean Air Act and the Clean Water Act. Research shows that the more strict environmental legislations are the higher the polluting firm’s production costs. This weakens the country’s firm position internationally and increases the price of essential goods and services. The establishment and enactment of the environmental policy reduce the country’s manufacturing employment tremendously. Strict environmental regulations enhance the growth in productivity of the firms through the firms’ rationalization of operations (Greenstone 2012).

In Australia, a controversial bill was passed in 2010 that lead to sidelining of the aboriginals and the marginalized societal groups . The bill proposed the dumping of harmful radioactive material to the remote aboriginals. The Australian government enacted the bill, which creates the nuclear waste dump regardless of the court petitions filed by the aboriginals and the environmentalists. The bill passed by the senate namely the National Radioactive Waste Management Bill leads to the development of the plan to dump nuclear wastes in a station occupied by the Aboriginal community in the drylands of Australia’s Northern territory. The government supported by the coalition opposition passed the bill and assented it into law despite the court proceedings trying to stop the dumping of the radioactive materials at the proposed site. Today, Australia dumps its nuclear wastes from the industries in over one hundred temporary stations in the learning institutions, hospitals, laboratories, and other proposed sites (Milman 2012)

Justifications as to why the environmental legislation should be introduced

The writer fully supports the introduction of environmental legislation in every economy to support its growth and development. Environmental accounting poses the greatest impact on business activity. The environmental impacts to the economic growth and development exist in different forms including the transmission media for example air and water pollution. The targeted areas of pollution that can affect the health of beings include the drinking water as well as encroached land and habitat for endangered species of animals and plants. Other areas that can be polluted include global sites such as the seas, oceans, atmosphere, and land surface. Several pollutants for instance toxic and hazardous actions may affect business activities. These environmental impacts pose a need to analyze the effects and incorporated them into the management decisions and accounting reporting.

Based on the following Australian regions, the writer supports the idea that environmental legislation should be introduced to protect the environment and hence the growth and development of the economy.

In the Australian Capital Territory, the Environment Protection Act and the Land Act were passed in 1997 and 1991 respectively. The two laws protect the environment by controlling air, land, and water pollution. The law also controls waste storage, collection, transportation, and treatment. The government fines any business entity found polluting the environment. This shows that the introduction of environmental legislation leads to a non-polluted environment that guarantees the health and safety of human beings. A healthy nation can grow and develop easily. In the same territory also, the Nature Conservation Act was passed in 1980 to preserve wildlife and nature (Norberry 2007). The introduction of such laws leads to the protection of the life of the animals and plants to avoid extinction. These act as tourists attraction sites, which brings a lot of revenue to the government (William 2012).

In New South Wales of Australia, the government passed the Environmental Planning and Assessment Act in 1979, which stipulates that the individual and the business fraternity should properly manage the conservation and preservation of the natural resources for example land, forests, water bodies, towns, and the settlement schemes. This means that environmental legislation should be introduced that protects the natural resources from destruction by human beings. This preserves the natural heritage like forests, which attract rain. A natural environment guarantees fresh air. On the same territory, several environment-related legislation was introduced that prevent the extinction of the species and safeguard their habitats; such Acts include the Fisheries Management Act of 1994, The Marine pollution Act of 1987 among others (William 2012). The introduction of such legislation ensures that the endangered species of animals and plants are protected against malicious destruction (William 2012).

Queensland in Australia was the first state government to enact and administer environment-related legislation and planning laws (William 2012). Today, Queensland uses The Environment Protection Act enacted in 1994 together with the Nature Conservation Act passed into law in 1992 that protects the environment (William 2012). The writer concludes by stating that the introduction of legislation that protects the environment and the ones that conserve nature is healthy for the growth and development of the country’s economy.

South Australia has the Environment Protection Act passed into law in 1993 and the Native Vegetation Act passed into law in 1991. The Native Vegetation Act controls the clearing and damage of the native vegetation. To conclude this is that, governments need to introduce legislation controlling the clearing of the native vegetation because such vegetations attract rain and guarantee agricultural produce. In the same government, the Water Resources Act was enacted in 1997 to manage and protect the government’s water resources. Water is life and is used in all spears of life. The Wilderness Protection Act enacted in 1992 by the South Australian government brings back the original state of land (William 2012).

In Tasmania, the Environmental Management and Pollution Control Act was enacted in1994 to provide for the “environmental management and the eradication of pollution” (William 2012). Another Act was enacted into law in 1987 that tries to control water pollution by the oil and the harmful noxious substances (William 2012). The writer supports the introduction of such laws so that the water for human consumption remains fit for human beings. This will reduce attacks by the water-borne diseases that are sometimes regarded as killer diseases in most parts of the world.

Victoria is another region in Australia that has enacted environment-related legislation just like the other Australian States. The Environment, Protection, and Planning Acts of 1978 protect the land in Victoria. Victoria also passed the Wildlife Act in 1975 and the National Parks Act in the same year to protect the National Parks and the game reserves. It is, therefore, necessary to protect the National Parks since they act as homes for different plants and animals that attract tourists to the nation as well as protecting the natural heritage of the country.

Western Australia states passed the Environmental Protection Act in 1986 and another Act in 1945 that guards the soil and the land against erosion and salinity (William 2012). It is, therefore, necessary to introduce environment-related laws that protect soil erosion because soils are used for agricultural purposes and soil erosion leads to a massive reduction of agricultural produce (William 2012).

From the environmental legislation enacted and administered in Australia’s Commonwealth, State and territory governments, the writer concludes that it is necessary to introduce environmental-related regulations and those related to climate change in every economy. Such legislations have both negative and positive effects on an individual, business, or corporation. However, the positive effects outweigh the negative effects and that is why it is necessary to introduce such legislation. In any organization, the public has the right to access the financial reports as they are regarded as public goods.

Adler, 2000, Greenhouse policy without regrets: a free market approach to the uncertain risks of climate change, Competitive Enterprise Institute, Washington.

Australian Business Website, 2011, Environmental management: environmental legislation, An Australian Government Initiative. Web.

Baker, C & Carter, R 2006, Promoting compliance with climate-related requirements: Australia’s national greenhouse and energy report act 2007, Australian Government Department of Climate Change and Energy Efficiency, Canberra.

Baumol, A & Oates, J 2010, Guidelines for preparing economic analyses: regulatory and non-regulatory approaches to pollution control, c.4, MIT Press, Cambridge.

Bricknell, S 2010, Environmental crime in Australia, AIC reports research and public policy series109, Australian Institute of Criminology, Canberra.

Comino, M & Leadbeter, P 2006, Enforcement of pollution laws in Australia: past experience and current trends, Australian Centre for Environmental Law, Sydney.

Commonwealth of Australia 2012, National pollutant inventory guide: version 5.3, Department of Sustainability, Environment, Water, Population and Communities, Canberra.

Deegan, 2009, Financial accounting theory, Ch. 3: the regulation of financial accounting, Pty Ltd, Australia.

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Greenstone, M 2012, The effects of environmental regulation on the competitiveness of U.S. manufacturing, MIT Press, Cambridge.

Harbin, C 2011, Government should not regulate the free market, Mic Network Inc, New York.

Ingwersen, D 2008, Commonwealth environmental powers and the national environmental laws, UNESCO, viewed 12 December, 2012.

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McNeill, J, Meng, S & Siriwardana, M 2011, The impact of a carbon tax on the australian economy: results from a CGE model, University of New England, London.

Meyer, S 2001, The economic impact of environmental regulation, MIT Press, Cambridge.

Milman, O 2012, Australia passes controversial nuclear waste bill , Guardian News and Media Limited, Sydney.

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Edited by Paul Martin and Amanda Kennedy, University of New England, Armidale NSW, Australia

'The effective implementation as distinct from the enforcement of environmental laws depends upon a range of discrete factors. These include institutional, cultural, social, economic, political as well as traditional legal influences and perspectives. This series of essays explains and analyses the theoretical underpinnings of the relationship between all of these factors and the methodology appropriate to determining in practice whether environmental laws are being implemented so that their objectives are being achieved. This involves a review of the growing theoretical literature and a discussion of a significant number of examples, international, regional, national and local, which assess the extent of effective implementation of the relevant legal rules. The strength of these essays is two fold: the depth of the theoretical discourse and the breadth of the indicative practical examples. These essays will add considerable grist to the intellectual mill of those interested in the perception of environmental governance as an emerging global system.'

– Douglas Fisher, Queensland University of Technology, Australia

This insightful book explores why implementation of environmental law is too often ineffective in achieving effective environmental governance. It provides careful analysis and innovative proposals to help improve the practical effectiveness of legal instruments for environmental governance.

A growing number of organisations including the IUCN, UNEP and the Organisation of American States have voiced concerns that legal instruments that were developed to pursue more convincing environmental governance over the last 40 years are not creating a sufficiently potent system of environmental governance. In response to this challenge, this timely book explores how to bridge the significant implementation gap between the objectives of environmental law and the real-world outcomes of its application. Expert contributors discuss different forms of law, from international conventions down to inter-parties agreements, and non-government codes and standards. The overarching discussion highlights the diverse factors that impact upon implementing environmental law in practice, and considers the limitations and opportunities for constructive innovation in legal governance.

Contributors include : R. Bartel, A.K. Butzel, D. Craig, J. de L. De Cendra, M. Doelle, J. Gooch, W.S. Gumley, C. Holley, T. Howard, W. Lahey, A. Lawson, E. Lees, P. Martin, M. Masterton, P. Noble, R. Ottinger, R.O. Omondi, L. Paddock, J.L. Parker, G. Pink, A. Rieu-Clarke, N.A. Robinson, G. Rose, T.L Rucinski, S. Teles Da Silva, R.R. Valova, X. Wang, M.E. Wieder

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Environmental Law Research Paper Topics

This page presents a comprehensive collection of environmental law research paper topics , tailored for students studying law and interested in exploring the complexities of environmental issues. Environmental law is a vital field that addresses the legal aspects of protecting the environment, ensuring sustainable practices, and regulating human activities that impact the planet. From climate change and biodiversity conservation to environmental policies and international treaties, students will find a wealth of thought-provoking topics to delve into. Whether you are passionate about environmental advocacy or seeking to understand the legal implications of environmental challenges, this page is a valuable resource to expand your knowledge and refine your research skills.

100 Environmental Law Research Paper Topics

Environmental law encompasses a wide array of legal issues related to the protection and preservation of our planet’s natural resources and ecosystems. This comprehensive list of environmental law research paper topics is designed to inspire students and researchers alike to explore the intricate and ever-evolving landscape of environmental law. The topics are organized into ten distinct categories, each focusing on different aspects of environmental law and its significance in shaping environmental policies and practices.

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Environmental Policy and Regulation

• Evaluating the effectiveness of environmental policies in achieving sustainability goals.
• Analyzing the role of government regulations in addressing environmental challenges.
• The impact of international environmental agreements on global conservation efforts.
• Legal frameworks for addressing climate change and promoting renewable energy.
• The role of public participation in shaping environmental policies and decision-making.
• The legal implications of environmental impact assessments in policy formulation.
• Balancing economic interests and environmental protection in policy development.
• The role of judicial review in upholding or challenging environmental policies.
• Analyzing the effectiveness of market-based approaches in environmental regulation.
• The impact of political ideologies on environmental policy formulation.

Biodiversity and Wildlife Protection

• The legal implications of conserving endangered species and habitats.
• Analyzing the role of wildlife protection laws in combating illegal trafficking and poaching.
• Legal challenges in balancing human development with wildlife conservation.
• The impact of habitat destruction on biodiversity and legal measures for preservation.
• The role of international treaties in promoting cross-border wildlife protection.
• The legal aspects of wildlife rehabilitation and reintroduction programs.
• Analyzing the effectiveness of protected areas in biodiversity conservation.
• Legal challenges in addressing invasive species and their impact on ecosystems.
• The role of private landowners in wildlife conservation efforts.
• The intersection of indigenous rights and wildlife protection.

Pollution Control and Remediation

• The legal framework for regulating air and water pollution.
• Analyzing liability and compensation mechanisms for environmental damages.
• Legal challenges in hazardous waste management and cleanup.
• The role of environmental impact assessments in pollution prevention.
• The legal implications of emerging contaminants and their regulation.
• Analyzing the effectiveness of pollution trading and offset programs.
• Legal challenges in addressing plastic pollution and marine litter.
• The role of corporate environmental liability in pollution prevention.
• Analyzing the impact of industrial pollution on public health and communities.
• The legal aspects of noise pollution and its regulation.

Water Resource Management and Conservation

• Legal considerations in managing and allocating water resources.
• Analyzing the impact of water pollution on ecosystems and public health.
• Legal challenges in protecting and restoring aquatic habitats.
• The role of water rights and agreements in transboundary water management.
• The legal implications of water scarcity and drought management.
• Analyzing the effectiveness of water conservation and efficiency measures.
• Legal challenges in addressing groundwater contamination and depletion.
• The role of ecosystem-based approaches in water resource management.
• The legal aspects of water privatization and its implications for access and equity.
• The intersection of water law and indigenous water rights.

Land Use and Sustainable Development

• The legal framework for sustainable land use planning and urban development.
• Analyzing the impact of mining and extraction industries on the environment.
• Legal challenges in regulating deforestation and promoting reforestation.
• The role of property rights in promoting conservation and sustainable land practices.
• The legal implications of land use conflicts and dispute resolution.
• Analyzing the effectiveness of land conservation easements in sustainable development.
• Legal challenges in balancing agriculture and conservation on agricultural lands.
• The role of zoning laws and land use ordinances in urban planning.
• The legal aspects of land restoration and brownfield redevelopment.
• The impact of climate change on land use and legal responses for adaptation.

Energy Law and Climate Policy

• Analyzing the legal aspects of renewable energy development and integration.
• The role of international agreements in promoting sustainable energy practices.
• Legal challenges in transitioning to a low-carbon energy economy.
• The impact of energy regulation on achieving climate change goals.
• The legal implications of energy subsidies and their impact on sustainable energy.
• Analyzing the effectiveness of carbon capture and storage technologies.
• Legal challenges in promoting energy efficiency and conservation measures.
• The role of energy law in promoting decentralized and distributed energy systems.
• The legal aspects of energy infrastructure development and environmental concerns.
• The intersection of energy law and indigenous rights in energy development.

Environmental Justice and Human Rights

• The legal implications of environmental discrimination and equitable access to resources.
• Analyzing the role of human rights in environmental protection and advocacy.
• Legal challenges in seeking remedies for environmental harm and social injustices.
• The intersection of environmental justice and indigenous rights.
• The role of environmental litigation in advancing environmental justice.
• Analyzing the effectiveness of public interest litigation in environmental cases.
• Legal challenges in addressing environmental racism and marginalized communities.
• The role of environmental ombudsmen and their impact on justice and accountability.
• Analyzing the effectiveness of community-based environmental monitoring and advocacy.
• The legal aspects of citizen engagement in environmental decision-making.

Climate Change Law and Adaptation

• Evaluating the effectiveness of climate change adaptation policies and strategies.
• Analyzing the legal implications of carbon pricing mechanisms and emissions trading.
• Legal challenges in implementing climate change agreements and commitments.
• The role of litigation in holding governments and corporations accountable for climate actions.
• The legal aspects of climate-induced migration and displacement.
• Analyzing the effectiveness of climate adaptation finance and funding mechanisms.
• Legal challenges in promoting nature-based solutions for climate change adaptation.
• The role of climate law in integrating climate resilience into infrastructure planning.
• The legal implications of climate engineering and geoengineering technologies.
• The impact of climate change on indigenous rights and legal responses for adaptation.

International Environmental Law and Governance

• Analyzing the role of international organizations in environmental governance.
• Legal challenges in enforcing global environmental treaties and agreements.
• The impact of climate change litigation on international law and policy.
• The role of soft law in shaping international environmental norms.
• Analyzing the effectiveness of international dispute resolution mechanisms in environmental cases.
• Legal challenges in addressing environmental crimes and transnational environmental harms.
• The role of corporate social responsibility in international environmental governance.
• Analyzing the effectiveness of international environmental impact assessments for development projects.
• The legal aspects of trade and environmental protection in international law.
• The intersection of human rights and international environmental law.

Emerging Issues in Environmental Law

• Legal challenges in regulating emerging technologies and their environmental impact.
• The role of legal frameworks in promoting circular economy practices.
• Analyzing the legal implications of biotechnology and genetic engineering on the environment.
• The impact of artificial intelligence and machine learning on environmental decision-making.
• Legal challenges in addressing e-waste and electronic waste management.
• The role of environmental law in governing nanotechnology applications.
• Analyzing the legal aspects of ocean governance and marine conservation.
• Legal challenges in addressing space debris and its impact on the environment.
• The impact of legal principles on sustainable development in the digital era.
• The legal aspects of protecting biodiversity in the face of emerging threats.

This comprehensive list of environmental law research paper topics provides a diverse and thought-provoking selection of themes to explore, offering valuable insights into the complex relationship between legal frameworks and environmental issues. Whether you are a student embarking on your research journey or a seasoned scholar seeking new avenues of inquiry, these topics are designed to stimulate critical thinking and foster a deeper understanding of the intricate world of environmental law.

Environmental Law: Exploring the Range of Research Paper Topics

Environmental law is a dynamic and evolving field that encompasses a wide range of legal issues concerning the protection, conservation, and management of the environment. As global concerns about climate change, pollution, and biodiversity loss continue to grow, environmental law plays a crucial role in addressing these challenges and shaping policies that promote sustainability. This section delves into the vast array of research paper topics within environmental law, highlighting key areas of interest and discussing the significance of exploring these subjects to address pressing environmental issues.

Climate Change and Mitigation Strategies

One of the most pressing issues in environmental law is climate change, and researchers have a plethora of topics to explore in this domain. Some potential research paper topics include the legal framework for international climate agreements like the Paris Agreement, the role of governments and corporations in climate change mitigation, the impact of climate litigation on policy formulation, and the legal challenges in transitioning to renewable energy sources.

Biodiversity Conservation and Wildlife Protection

Preserving biodiversity and protecting wildlife are essential aspects of environmental law. Researchers can delve into topics such as the legal framework for wildlife protection, the role of national parks and protected areas in biodiversity conservation, the impact of illegal wildlife trafficking on ecosystems, and the legal challenges in regulating bioprospecting and genetic resource exploitation.

Environmental Impact Assessment and Regulation

Environmental impact assessments (EIAs) are crucial tools for evaluating the potential environmental consequences of development projects. Research papers can focus on the effectiveness of EIAs in different countries, the role of public participation in the EIA process, the legal aspects of strategic environmental assessment, and the challenges in regulating emerging technologies through EIAs.

Pollution Control and Waste Management

Pollution is a significant environmental concern, and environmental law plays a pivotal role in regulating and mitigating its impacts. Researchers can explore topics such as the legal framework for air and water pollution control, the role of liability and compensation in environmental damage cases, the challenges in regulating electronic waste and plastic pollution, and the legal aspects of hazardous waste management.

Natural Resource Management and Conservation

The sustainable management of natural resources is critical for the long-term health of the environment. Research papers can delve into topics such as the legal framework for sustainable forestry and fisheries management, the role of indigenous and local communities in natural resource conservation, the legal challenges in water resource management, and the impact of land use planning on biodiversity conservation.

Environmental Justice and Equity

Environmental law intersects with social justice and equity issues, as certain communities may bear a disproportionate burden of environmental harm. Researchers can explore topics such as environmental racism and its legal implications, the role of environmental impact assessments in addressing environmental justice, the legal challenges in ensuring access to clean water and sanitation for marginalized communities, and the impact of climate change on human rights.

Renewable Energy and Green Technology

The transition to renewable energy sources and green technologies is a critical aspect of addressing climate change. Research papers can focus on topics such as the legal framework for promoting renewable energy projects, the role of intellectual property rights in green technology innovation, the challenges in regulating offshore wind energy, and the legal aspects of carbon capture and storage.

Environmental issues transcend national boundaries, necessitating international cooperation and governance. Researchers can delve into topics such as the legal framework for transboundary pollution control, the role of international organizations like the United Nations Environment Programme, the challenges in enforcing international environmental treaties, and the impact of trade agreements on environmental protection.

Corporate Environmental Responsibility

Corporations play a significant role in environmental impact, and environmental law seeks to regulate their activities responsibly. Research papers can explore topics such as the legal framework for corporate environmental reporting, the role of sustainability certifications and eco-labeling, the challenges in holding corporations accountable for environmental harm, and the impact of green finance initiatives on corporate behavior.

Land Use Planning and Urban Environmental Law

Land use planning and urban development have a profound impact on the environment and human well-being. Researchers can focus on topics such as the legal aspects of urban planning for sustainable cities, the role of environmental zoning and conservation easements in land use regulation, the challenges in balancing urban development with environmental conservation, and the legal implications of green infrastructure projects.

The field of environmental law offers a vast and diverse range of research paper topics, each contributing to a deeper understanding of environmental challenges and the legal mechanisms to address them. From climate change to biodiversity conservation, pollution control to renewable energy, environmental law provides an avenue for researchers to explore innovative solutions and policy frameworks that safeguard the planet’s future. By delving into these research topics, students can make valuable contributions to environmental protection and contribute to a sustainable and resilient world.

How to Choose Environmental Law Research Paper Topics

Choosing the right research paper topic is crucial for a successful and fulfilling academic journey. When it comes to environmental law, selecting a relevant and engaging research topic is not only essential for earning good grades but also for making a meaningful contribution to the field. Here are some valuable tips to help you navigate the process of choosing environmental law research paper topics that align with your interests, academic goals, and the current environmental challenges:

• Identify Your Passion and Interests : Passion is the driving force behind exceptional research. Begin by reflecting on the aspects of environmental law that pique your interest the most. Consider whether you are more intrigued by climate change, wildlife conservation, pollution control, or any other specific area within environmental law. Identifying your passion will make the research process more enjoyable and motivate you to delve deeper into the topic.
• Stay Updated with Current Environmental Issues : Environmental law is constantly evolving to address new challenges and emerging issues. Keep yourself informed about the latest environmental developments, global climate conferences, landmark legal cases, and policy changes. Staying up-to-date with current environmental issues will help you identify relevant and timely research topics that have real-world implications.
• Consider the Practical Implications : An essential aspect of environmental law research is understanding how legal frameworks translate into practical applications. Evaluate how your chosen topic impacts communities, industries, ecosystems, and global sustainability efforts. Research topics that have tangible and practical implications are likely to generate greater interest and contribute to meaningful discussions.
• Review Previous Research : Before finalizing your research topic, conduct a thorough literature review of existing studies in environmental law. Analyze the gaps in the literature and identify areas that require further exploration. Building upon existing research can provide a solid foundation for your own work and ensure its relevance in the field.
• Seek Guidance from Professors and Experts : Don’t hesitate to seek guidance from your professors, advisors, or other experts in environmental law. They can offer valuable insights, suggest potential research topics, and help you refine your ideas. Engaging in discussions with knowledgeable individuals can lead to fresh perspectives and help you choose a research topic aligned with current academic interests.
• Balance Complexity and Feasibility : While it’s essential to select a research topic that challenges you intellectually, be mindful of the practical constraints of your project. Ensure that the research topic is feasible within the given time frame and resources. Striking a balance between complexity and feasibility will lead to a well-executed and comprehensive research paper.
• Consider Comparative Studies : Comparative studies in environmental law allow you to analyze legal frameworks and their effectiveness in different countries or regions. Investigating how various jurisdictions address similar environmental issues can provide valuable insights and open doors for cross-cultural learning.
• Emphasize Interdisciplinary Approaches : Environmental law is inherently interdisciplinary, encompassing elements of science, economics, policy, and ethics. Consider topics that allow you to explore these interdisciplinary connections. For instance, you can investigate the economic impact of environmental regulations, the ethical implications of wildlife conservation policies, or the scientific basis for climate change mitigation strategies.
• Evaluate the Policy Implications : Environmental law research often has a policy-oriented focus. Analyze how your chosen research topic aligns with existing policies or how it can influence policy formulation. Understanding the policy implications of your research will add practical significance to your work.
• Brainstorm and Refine : Take the time to brainstorm multiple research ideas and then refine them gradually. Discuss your potential topics with peers and instructors to get feedback and suggestions. The iterative process of brainstorming and refining will lead you to a well-defined and compelling research paper topic.

Selecting an environmental law research paper topic is an important and exciting step in your academic journey. By identifying your passion, staying updated with current environmental issues, considering practical implications, and seeking guidance from experts, you can choose a research topic that not only interests you but also contributes meaningfully to the field of environmental law. Remember to balance complexity and feasibility, explore interdisciplinary connections, and evaluate the policy implications of your chosen topic. With thoughtful consideration and dedication, you can embark on a rewarding research endeavor that advances environmental law knowledge and addresses critical environmental challenges.

How to Write an Environmental Law Research Paper

Writing an environmental law research paper requires a systematic approach and a keen understanding of legal concepts, environmental issues, and academic writing conventions. Whether you are a seasoned researcher or a student new to the field, mastering the art of crafting an effective research paper is essential to convey your findings and insights convincingly. Here are ten essential tips to guide you through the process of writing a compelling and well-structured environmental law research paper:

• Conduct Thorough Research : Begin your environmental law research paper by conducting in-depth research on your chosen topic. Utilize academic journals, books, reputable websites, and legal databases to gather relevant and credible information. Analyze previous studies, court cases, and legislation related to your topic to develop a comprehensive understanding of the subject matter.
• Outline Your Paper : Creating a clear and organized outline is fundamental to the success of your research paper. Develop a well-structured outline that includes the introduction, thesis statement, main arguments, supporting evidence, counterarguments, and conclusion. A well-crafted outline will serve as a roadmap, ensuring your paper flows logically and cohesively.
• Craft a Strong Introduction : The introduction is the gateway to your research paper. It should provide essential background information on the topic, state the purpose of the study, and present your thesis statement. A compelling introduction captures the reader’s attention and sets the tone for the rest of the paper.
• Develop a Strong Thesis Statement : The thesis statement is the central argument of your research paper. It should be clear, concise, and specific, outlining the main point you aim to prove or discuss. Ensure that your thesis statement reflects the scope of your research and aligns with your chosen environmental law topic.
• Use Clear and Precise Language : Environmental law research papers require clarity and precision in language. Avoid jargon and use straightforward terms to communicate complex legal concepts and environmental issues. Clearly define any legal terms or specialized vocabulary to ensure your readers understand the content.
• Support Your Arguments with Evidence : As you present your main arguments, back them up with relevant and credible evidence. Cite case law, legislation, expert opinions, and empirical data to support your claims. Properly referenced evidence strengthens the credibility of your research and demonstrates your thorough understanding of the subject matter.
• Address Counterarguments : Anticipate potential counterarguments to your thesis and address them in your paper. Acknowledging counterarguments and offering thoughtful responses demonstrate critical thinking and strengthen the overall argument of your research paper.
• Analyze and Interpret Data : If your research involves data analysis, take the time to interpret the results accurately. Present your findings in a clear and organized manner, using charts, graphs, or tables if necessary. Analyze the implications of your data on environmental law and draw well-supported conclusions.
• Discuss Policy and Practical Implications : Environmental law research often involves exploring policy implications. Discuss how your research findings can influence or inform environmental policy, regulation, or legal frameworks. Consider the practical implications of your research and offer recommendations for addressing environmental challenges.
• Write a Convincing Conclusion : In your conclusion, summarize the key points of your research and restate your thesis statement. Emphasize the significance of your findings and how they contribute to the broader field of environmental law. Avoid introducing new information in the conclusion and end with a thought-provoking final remark.

Writing an environmental law research paper demands careful research, meticulous planning, and effective communication of ideas. By following these ten tips, you can craft a compelling and well-structured research paper that not only showcases your knowledge of environmental law but also makes a valuable contribution to the field. Remember to proofread your paper thoroughly and adhere to citation guidelines to ensure academic integrity. With diligence and attention to detail, you can produce a high-quality environmental law research paper that showcases your expertise and passion for the subject.

iResearchNet’s Custom Research Paper Writing Services

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• Custom Written Works : We believe in the uniqueness of each research paper. Our writers craft every paper from scratch, tailoring it to your specific requirements and ensuring that it is entirely original and plagiarism-free.
• In-Depth Research : To provide you with a comprehensive and well-supported environmental law research paper, our writers conduct extensive research using reputable sources and up-to-date academic materials.
• Custom Formatting : Our writers are well-versed in various citation styles, including APA, MLA, Chicago/Turabian, and Harvard. They will format your research paper according to your preferred style or any other specified guidelines.
• Top Quality : At iResearchNet, quality is our priority. We aim to deliver research papers that not only meet but exceed your expectations, earning you top grades and accolades from your instructors.
• Customized Solutions : We understand that each research paper has unique requirements. Our writers take the time to understand your specific needs and tailor the paper to address your research objectives effectively.
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Environmental Law and Its Crucial Points

The historical validity of serious consideration of environmental law’s place and role in the modern legal system is quite obvious. This is caused by a significant change in both the concept of environmental law and, at the same time, its place in the system of world law over the past decade. On the one hand, ideological validity lies in the sphere of a significant rethinking of the world’s environmental policy and ideology. On the other hand, it is also associated with the reformation of society’s environmental consciousness (Fisher, 2017). Environmental law’s meaning lies in the inseparable, logically, and scientifically grounded unity of legal regulation of all social relations regarding nature. An attempt to narrow the scope of environmental law to legal protection of the human environment is unscientific and futile.

Several multidirectional factors simultaneously influence the determination of the place of environmental law in the modern legal system. For example, this is the expanding involvement of natural resources in the range of objects of civil rights. It is caused by financial requirements and the requirements of the reforming legal system itself. Unfortunately, there are noticeable defects of a technical and legal nature, primarily in the terminological field. It can also be noted that there are some internal contradictions of environmental legislation and the diminution of the role of environmental law (Godden & Peel 2010). They can be met both in the scientific and in the educational, methodological spheres. The process of forming the terminological apparatus of environmental law is characterized today by many significant difficulties, contradictions, and errors. These include the absence of an internal system and development strategy (Bell et al., 2017). The lack of legal and substantial theoretical and ecological foundation is also a critical issue.

The modern behavior of people in the field of nature conservation and use can be characterized as reasonable pragmatism within the consumer concept of interaction between society and nature. This implies a decrease in interest in environmental issues as such. It can also be noted that the regulation of relations for the protection of nature is subordinate to the regulation of relations for its use. Thus, macroeconomic and socio-economic goals and objectives completely dominate environmental protection goals and objectives (Gunningham & Holley, 2016). Unfortunately, this often negatively affects nature’s conservation, since its problems are not given due attention.

The current needs and challenges from the essence of environmental law and nature lead to the conclusion that it is necessary to form a scientific and educational environmental law school. Such a school presupposes a specific conceptual basis, which helps form a circle of specialists and organize the corresponding scientific life and traditions. It is crucial to understand the need to publish books, hold conferences, and create an information field in the area of environmental law. This will allow scientists worldwide to look at environmental problems in the same way and solve them more effectively.

There are different ways to develop environmental law required to preserve nature. First, it is a radical modernization of the economic mechanism of nature management and environmental protection. At the same time, corresponding changes should be made to tax and budget legislation. It is also important that states have the necessary and sufficient powers in the environmental field. It is worth paying particular attention to the specification of environmental standards and their tightening as a stimulus for sustainable socio-economic development and improvement of ecological conditions (Bell et al., 2016). It is also vital to simplify and de-bureaucratize the execution of permits for users of natural resources. These steps will contribute to the development of environmental law and the preservation of the environment.

Bell, C., et al. (2016). Environmental law handbook. Bernan Press.

Bell, S., et al. (2017). Environmental law. Oxford University Press.

Fisher, E. (2017). Environmental law: A very short introduction. Oxford University Press.

Godden, L., & Peel, J. (2010). Environmental law: Scientific, policy and regulatory dimensions. Oxford University Press.

Gunningham, N., & Holley, C. (2016). Next-generation environmental regulation: Law, regulation, and governance. Annual Review of Law and Social Science, 12 , 273-293.

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What is the Importance of Environmental Law?

March 27, 2019

Home  /  News  /  What is the Importance of Environmental Law?

Environmental law describes a network of regulations and customary laws that address the effects of human activity on the natural environment. These laws are also referred to as environmental and natural resource laws and center on the idea of environmental pollution.

In addition to this issue, environmental law works to manage specific natural resources and environmental impact assessment.

There are a few key areas that environmental law works to regulate in order to lessen the impact on the environment. Some of these areas include:

• Air Quality
• Water Quality
• Waste Management
• Contaminant Cleanup
• Chemical Safety
• Resource Sustainability

Why is Environmental Law Important?

As you can see from the list above, environmental laws play a huge part in protecting humans, animals, resources, and habitats. Without these laws, there would be no regulations concerning pollution, contamination, hunting, or even response to disasters.

Environmental law works to protect land, air, water, and soil. Negligence of these laws results in various punishments like fines, community service, and in some extreme cases, jail time. Without these environmental laws, the government would not be able to punish those who treat the environment poorly.

3 Environmental Law Degrees

There are many ways that you can get involved with environmental law. Whether you are interested in developing policies or enforcing them, there is a place for you in this field.

1. Environmental Criminal Justice Degree

You may know that you can acquire a degree in criminal justice, but did you know you can specify that degree and earn your online environmental criminal justice degree ?

What this means is that you can get a formal education that teaches you how to protect and serve both your community and the environment. A degree in environmental criminal justice gives you knowledge of a combination of criminal law, law enforcement, and environmental studies.

Throughout this education, you learn about law, psychology, environmental studies, sustainability, political science, and more. With a degree from this program, you will be prepared to take on a position with the U.S. National Park Service, Fish and Wildlife Service, and a myriad of other federal agencies.

This field is growing at a rapid pace due to the consistent pollution that is happening all over our world and it is estimated that from 2016 to 2026, there will be an 11% increase in employment opportunities . The demand for environmental specialists within not only government buildings, but also to consult businesses regarding their practices and how to decrease their pollution is on a consistent, upwards climb. This industry is one that will continue to expand as our world becomes more in tune with climate change and the effects that humans have on the environment.

2. Environmental Policy, Law, and Society Degree

If enforcement isn’t quite the route you’d like to take, but you still want to have an impact on environmental law, you may want to look into getting an environmental law bachelor’s degree .

When studying this discipline, you will not only learn about the environment and its laws, but you’ll gain valuable knowledge concerning advocacy, ethics, and American democracy. You can learn about state and local governments as well as natural resource law and policy.

All of these components come together and allow you to find a career as a lawyer, policymaker, grant writer, or non-profit leader, all within the environmental science industry. You can make a difference within policy and law, rather than enforcement.

3. Conservation Law Enforcement Degree

A bachelor’s degree in conservation law enforcement gives you a well-rounded educational experience that opens you up to opportunities involving resource management and environmental protection.

Throughout your education, you’ll learn vital skills like crime scene investigation, policy procedures and search warrants, interviews and interrogations, and surveillance techniques all coupled with knowledge of environmental science and studies.

Careers associated with this degree include a wide variety of options like forest rangers, marine patrols, game wardens, and jobs within the Bureau of Land Management. This education path is a great choice for someone who wants to actively defend this Earth’s resources and make a difference.

Game Wardens: A Common Career Path for People with Environmental Law Degrees

A qualified game warden is someone who has dedicated their career to keeping natural resources safe from humans as well as protecting humans and animals during outdoor recreational activities.

These activities include things like fishing and hunting.

Not only are game wardens protectors of nature, but they are also environmental law enforces. They are committed to hard work and have a special dedication to both humans and animals and their protection. Game wardens have to enforce specific laws, but they also need to lead by example.

Game wardens should have or acquire sound knowledge of law and government, biology, sociology, public safety, geography, and customer service. A combination of these skills allows a game warden to perform their necessary daily tasks.

Their daily tasks can include patrols by car, boat, airplane, horse, or on foot. They should interact with people participating in outdoor activities to enforce and make clear laws for fishing, hunting, boating, etc. The median annual wage for a game warden is $56,410 but depends based on the state in which you live. The states with the highest demand for game and fish wardens are Texas, New York, and California.

Additionally, game wardens compile evidence, make arrests and serve warrants, promote safety, and participate in search and rescue missions. There are many other responsibilities bestowed upon game wardens, and you can find a more comprehensive list here that includes tasks, skills, and university courses necessary for a game warden to become the best they can be.

The Bottom Line

Environmental law sounds like a complicated establishment of policies and procedures, but the truth is that anyone can learn more about it and become involved with the proper education. As stated earlier, the environmental science industry is on a rapid increase with employment opportunities flourishing as more people become aware of the situation at hand. This job stability, brought on by the fact that we are continuing to pollute the world, is exactly why high school students should be considering environmental science as their field of study. It is current, ever-changing, and incredibly important to human life.

Degree Programs

Degree programs

To match your passion, b.s. in environmental science.

B.S. in Environmental Science and Climate Change

B.s. in environmental studies.

B.S. in Conservation Law Enforcement

B.S. in Environmental Justice and Social Change

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• < Previous chapter

20 Environmental Law and Economics

Michael A. Livermore, University of Virginia School of Law

Richard L. Revesz, New York University School of Law

• Published: 06 June 2017
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This chapter begins with a brief general overview of the economics of environmental law. It then focuses on recent developments in the field of environmental law and economics, with an emphasis on the experience of the United States. When setting environmental policy, decision makers must address two general types of questions. The first concerns the ends of environmental policy, and examines the socially desirable level of environmental quality. The second type of question concerns the means of policy making and focuses on the types of regulatory instruments that will be used and the allocation of responsibility between governmental actors. Section 2 addresses the first type of question concerning the goals of environmental policy. Sections 3 and 4 address the means of environmental policy, focusing on instrument choice and jurisdictional allocation, respectively.

20.1. Introduction

The law and economics perspective provides a useful lens for many environmental policy questions. Normative deliberation concerning the construction of environmental policy can be informed by an economics perspective. Economic analysis can also be brought to bear on empirical questions concerning the effects of environmental policies ( Faure 2012 ) and the political economy factors that affect the selection of environmental policies ( Keohane, Revesz, Stavins 1996 ; Burtraw 2012 ). Indeed, the overlap between environmental policy and economics is sufficiently extensive that environmental economics constitutes a distinct discipline within the field of economics ( Field and Field 2012 ).

Revesz and Stavins (2007) presented an overview of environmental law and economics, focusing on three themes that have been of particular importance in the field: cost–benefit analysis, instrument choice, and the allocation of policymaking responsibility in a federal system. That work canvassed the robust literature that had developed on those themes and examined the political and policy contexts that affected the application of law and economics to environmental policymaking.

There have been important developments since the publication of Revesz and Stavins (2007) . Climate change has become an even more dominant issue in environmental law, both in the United States and internationally. The scale of the threatened harms from climate disruption, the global and diffused nature of greenhouse gas emissions, the degree of scientific uncertainty, the long time horizons involved, and the extent of economic transformation needed to substantially curtail emissions all make climate change a uniquely vexing environmental problem ( Intergovernmental Panel on Climate Change [IPCC] 2013 ).

The issue of climate change has precipitated important changes in the field of environmental law and economics. Many normative and positive challenges are posed by climate change and attempts to reduce greenhouse gas emissions, and scholars have responded to those challenges with important conceptual and empirical advances. The political context of environmental law and economics has also been affected by conflict over climate policies. After providing a brief general overview of the economics of environmental law, this chapter will focus on these recent developments, with an emphasis on the experience of the United States. Consistent with Revesz and Stavins (2007) , this chapter focuses on pollution control and does not examine natural resource management.

When setting environmental policy, decision makers must address two general types of questions. The first concerns the ends of environmental policy, and examines the socially desirable level of environmental quality. The second type of question concerns the means of policymaking and focuses on the types of regulatory instruments that will be used and the allocation of responsibility between governmental actors. Section 20.2 addresses the first type of question concerning the goals of environmental policy. Sections 20.3 and 20.4 address the means of environmental policy, focusing on instrument choice and jurisdictional allocation, respectively.

20.2. Cost–Benefit Analysis

There is widespread agreement that environmental quality is a good worth providing. Not only do people enjoy the benefits of environmental quality directly—for example, through improved health and better recreational opportunities—but natural systems provide the foundation for many diverse forms of economic activity (such as agriculture) and, indeed, create the basic conditions for human life to exist at all. But although it is impossible to dismiss the value of a clean environment, there is much less agreement on the level of environmental quality that society ought to pursue. The question of how clean is clean enough? is an essential preliminary to environmental policymaking, and one on which economics provides useful guidance.

20.2.1. Normative Issues and Analysis

Welfare economics provide a general framework for answering questions concerning the ends of environmental policy. The general recommendation is that environmental policy should be selected to maximize well-being, measured by the value that individuals place on improved environmental quality minus the value of sacrifices that must be made to achieve those improvements. Because most environmental policy involves tradeoffs between positive and negative consequences, the value of those consequences must be weighed against each other. The dominant technique for weighing policy consequences and estimating the net effects of policy options is cost–benefit analysis.

20.2.1.1. General Framework

Pollution presents a classic market failure that can be addressed through appropriate government intervention. Pollution can be described as an externality ( Pigou 1920 ) in which the “activity of one agent … affects the well-being of another agent and occurs outside the market mechanism” ( National Research Council 2010 ). The solution proposed by Pigou is a tax or fee to internalize the external costs imposed by pollution. Such a move is not necessary in world of well-defined property rights and low transaction costs because private bargaining will account for all relevant effects ( Coase 1960 ; Krutilla and Krause 2011 ). Nevertheless, the existence of transaction costs and incomplete property rights imply that private bargaining alone will not always result in a social-welfare-maximizing outcome.

Once it is determined that government intervention can, in principle, improve well-being, the question of the socially desirable level of pollution control must be addressed. Within the field of welfare economics, the traditional answer is the test developed by Kaldor (1939) and Hicks (1939) of potential Pareto improvements. A Pareto improvement is one that makes at least one person better off and no one worse off ( Pareto 1896 ). A potentially Pareto improvement is one in which the beneficiaries of the policy could fully compensate those who are burdened by the policy.

Kaldor–Hicks efficiency is the basis for formal cost–benefit analysis ( Zerbe and Bellas 2006 ). A measure is Kaldor–Hicks efficient if it maximizes the difference between the value of its benefits (as measured by the beneficiaries) and its costs (as measured by bearers of those costs). Because total benefits typically increase at a decreasing rate while cost increases at an increasing rate, net benefits are maximized by policies that equate marginal benefits with marginal costs.

There is a robust debate over the normative attractiveness of cost–benefit analysis as a means of identifying socially desirable environmental policy. Issues that are relevant to this debate include the normative status of preference satisfaction ( Adler and Posner 2006 ), the importance of distribution of costs and benefits for well-being ( Adler 2012 ; Cai et al. 2010; Farrow 2011 ), and broader critiques concerning incommensurability ( Anderson 1995 ; Ackerman and Heinzerling 2004 ) or commodification ( Radin 2001 ). While many of the criticisms leveled against cost–benefit analysis apply generally to normative economics, the use of cost–benefit analysis to evaluate environmental policies has been particularly controversial ( Kysar 2010 ). Additional conceptual frameworks for evaluating environmental policy include environmental rights (Kelman 1981a), environmental justice ( Rhodes 2003 ), non-anthropocentric approaches ( Ariansen 1998 ), green growth ( Livermore 2013 ), and sustainable development ( Dasgupta and Heal 1974 ; Stiglitz 1974 ; Solow 1974 ; Organisation for Economic Cooperation and Development [OECD] 2004 ). Many of these concepts can be understood as emphasizing distributional, rather than efficiency, considerations ( Stavins et al. 2003 ). For example, one definition of sustainable development that is reasonably well accepted in the economics community is monotonically increasing consumption ( Solow 1986 ; Hartwick 1977 ; Daly 1990 ), which concerns the intergenerational allocation of resources, rather than the static maximization of welfare.

Environmental policymaking poses several methodological difficulties for cost–benefit analysis. Several of these are described in detail in Revesz and Stavins (2007) . The most important environment-specific challenge is to provide valid monetary estimates of the value of hard-to-price goods, including non-market goods (like clean air) ( Alberini and Scarpa 2005 ; Banzhaf 2010 ; Phaneuf et al. 2009 ) and mortality risk reduction ( Cropper et al. 2011 ). Continent valuation (e.g., stated preference studies) remains the most widespread tool to estimate non-market values ( Viscusi et al. 2008 ). While this approach has been endorsed by leading economists, it remains controversial ( Hausman 2012 ). In recent years, the concept of ecosystem services—the goods and services provided by natural systems—has been used to help structure research on the benefits of environmental protection ( Goulder and Kennedy 2011 ; Brown et al. 2007 ). An important challenge for the ecosystems services approach is to identify estimation methods that disaggregate intermediary goods, such as water quality from final services such as recreation or human health ( Keeler et al. 2012 ).

20.2.1.2. Discounting and Future Generations

Carbon dioxide, the most important greenhouse gas pollutant, has a long atmospheric lifetime, about 100 years (IPCC 2013). In addition, global warming processes are not instantaneous, but involve the interaction of large, complex physical systems that may involve irreversible feedback loops (IPCC 2013). The consequences of greenhouse gas emissions today, then, will be felt for many years into the future. As in many other environmental contexts, limits on greenhouse gas emissions impose immediate costs to produce benefits that will accrue only in the long term.

Traditionally, future benefits have been discounted at a constant rate. The choice of a discounting procedure and rate is particularly important in the case of climate change because of the very long time horizons involved ( Revesz and Shahabian 2011 ). The standard approach to analyzing this problem is contained in the following formula ( Arrow et al. 1996 ):

where d is the discount rate, ρ is the rate of pure time preference, θ is the absolute value of the elasticity of marginal utility of consumption and g is the growth rate of per capita consumption.

There are two interpretations for the first term, ρ . Under a prescriptive approach, ρ would be derived from ethical principles ( Arrow et al. 1996 ). There is no strong consensus concerning whether a pure time preference is normatively justified. Many prominent economists agree with the proposition, first articulated by Ramsey (1928) , that ρ should be zero ( Broome 1992 ; Dasgupta 2008 ; Cline 2006 ; Harrod 1966 ; Heal 2009 ; Koopmans 1967; Philibert 1999 ; Solow 1974 ). Others disagree ( Arrow 1999 ; Beckerman and Hepburn 2007 ).

Revesz (1999) and Revesz and Shahabian (2011) argue that there is an ethical distinction between intergenerational and intragenerational discounting that is relevant for determining the appropriate pure rate of time preference. The latter reflects individuals’ preferences to spread consumption across their lifetime. The former reflects a social decision concerning the allocation of resources between individuals. While there are reasons to endorse policies that reflect individuals’ desire to consume sooner rather than later, there is no straightforward justification for a bare social preference for current over future generations.

The descriptive approach avoids the preceding normative questions and simply substitutes observed market interest rates for the discount rate in cost–benefit analysis. The benefit of this approach is that it does not attempt to address difficult questions of intergenerational equity. The problem is that it fails to provide a normative reason for why market interest rates are an appropriate source for the social discount rate ( Revesz and Shahabian 2011 ). Sophisticated defenders of intergenerational discounting recognize the possibility for “net welfare losses and distributional inequity” but argue that the issue of moral obligations to future generations should be treated as a separate inquiry from efficiency ( Sunstein and Rowell 2007 ).

Once society decides how to trade off utility between generations, discounting can be used to account for opportunity costs in determining the degree to which pollution control should be included in the basket of future-oriented investments ( Schelling 1995 ; Samida and Weisbach 2007 ; Weisbach and Sunstein 2009 ).

Accounting for the marginal utility of consumption through growth discounting also generates difficulties. As a preliminary matter, long-term growth is difficult to predict ( Moyer et al. 2013 ). The countries most likely to benefit in the future from current climate change mitigation—developing countries in the tropics—are far poorer than the industrial powers that are most likely to pay in the present for such mitigation ( Ruhl 2012 ). And even in the relatively distant future, these developing countries may be poorer than developed countries are today. Scholars have also argued that greenhouse gas reductions in developed countries can be viewed as foreign aid and noted that intragenerational wealth transfers are a more efficient mechanism to reduce global inequality than climate mitigation ( Schelling 1995 ; Posner and Sunstein 2007 ).

There appears to be an emerging consensus that discount rates should decline with the length of the time horizon, with higher discount rates applied to the near-term future and lower discount rates applied to the long-term future ( Gollier and Weitzman 2010 ). A declining discount rate approach has been adopted by France and the United Kingdom ( Cropper 2012 ). The first argument in favor of such an approach is that it is more consistent with observed behavior. Stated preference studies typically indicate that individuals apply a very low discount rate to benefits to future generations ( Cropper et al. 1992 ; Johannesson and Johansson 1997 ). Even in individual market behavior, hyperbolic discounting is commonly observed ( Laibson 1997 ), although it raises rationality concerns ( Skog 2005 ).

The second and more powerful argument in favor of declining discount rates stems from uncertainty about the appropriate discount rates ( Arrow et al. 2013 ; Gollier and Weitzman 2010 ). When these rates are uncertain, the utility maximizing approach requires that decisions be made based on expected discounted costs and benefits, not discounted expected costs and benefits (Weitzman 1998 , 2001 ). The consequence is that the correct discount rate is lower than the mean of the probability distribution of possible rates. Over sufficiently long time horizons, the lowest rate in the distribution dominates ( Weitzman 2001 ). Newell and Pizer (2003) show that rational treatment of interest rate uncertainty, based on historic variance in US Treasury bill rates, leads to quickly declining discount rates.

20.2.1.3. Employment Effects

A growing area of research interest, spurred in part by changes in the political context of cost–benefit analysis discussed below, concerns the effects of environmental regulation on employment. A threshold question is whether, and how, effects on labor markets ought to be accounted for in cost–benefit analyses of environmental regulation.

The standard approach for government agencies in the past had been to assume a well-functioning, full-employment labor market ( Environmental Protection Agency [EPA] 2000 ). Under these conditions, workers hired to comply with an environmental regulation are reallocated from positions with similar wages, and workers that are laid off because an environmental regulation find new positions at similar compensation levels.

When the assumption of full employment is relaxed, the estimation of the labor effects of environmental regulation is extremely difficult ( Coglianese et al. 2014 ). Morgenstern et al. (2002) note three distinct potential effects of regulation on employment. A demand effect occurs if regulation increases production costs, thereby increasing prices and lowering the quantity of production, resulting in lower demand for labor. A cost-effect occurs if plants must add more capital and labor per unit of output, potentially increasing demand for labor. A factor-shift effect occurs if a regulation induces a shift in spending from capital to labor or vice versa. The authors note that the net effects of these three effects are ambiguous, and in a study of four highly polluting and regulated industries, find mild positive employment effects from regulation. Sectoral studies have found negative employment effects from environmental regulation, but may measure employment shifts rather than net losses ( Greenstone 2002 ; Kahn 1997 ). Walker (2011) examines wage effects from the Clean Air Act, finding that wages within regulated industries declined because of environmental controls. Office of Management and Budget (OMB) (2011) provides a useful overview of research on employment effects from environmental regulation.

Masur and Posner (2012) argue that, when realistic economic conditions are taken into account, there can be substantial costs associated with layoffs. Not only do laid-off workers incur transition costs, including job search costs and time away from work, but there are psychological and physical hardships associated with joblessness that are not fully captured by lost wages or search costs. Adler (2014) discusses how a welfare-oriented approach would account for these types of harms.

Labor effects from environmental regulation are not always negative. If firms that must hire new workers to comply with an environmental regulation draw from a pool of unemployed labor, then the social costs are below the wages that are paid out to those workers, because the opportunity costs of these workers are very low ( Bartik 2013 ). There may also be physical and psychological benefits associated with hiring unemployed workers that imply a negative social cost (CBO 2012).

20.2.1.4. Behavioral Economics and the Energy Paradox

Since the mid-1990s, scholars have begun applying the insights of behavioral economics to the law ( Krieger 1995 ; Korobkin and Ulen 2000 ; McAdams 1997 ; Sunstein 1996 ). The behavioral revolution has touched environmental economics as well ( Shogren and Taylor 2008 ). Arguably, the most important consequence of behavioral research for cost–benefit analysis of environmental policy concerns the issue of energy efficiency standards. Measures to promote energy efficiency have taken on increasing importance as a low-cost means of reducing greenhouse gas emissions.

Energy-efficiency standards have two potential categories of benefits. By reducing energy consumption, they can reduce externalities such as air pollution from burning fossil fuels or thermal pollution associated with nuclear power generation. A second category of benefits is consumer savings. Consumer savings, however, are complicated by the fact that rational consumers should be willing to invest in all net present value-positive energy-efficiency improvements ( Jaffe et al. 2004 ). Therefore, under the standard model of rational economic behavior, it should be impossible for government regulation to generate consumer benefits through energy-efficiency mandates in most circumstances.

Notwithstanding this prediction, there is much literature demonstrating widespread underinvestment in energy efficiency ( Gillingham et al. 2009 ). This phenomenon is referred to as the “energy paradox” in the environmental economics literature ( Jaffe and Stavins 1994 ). Several behavioral hypotheses have been forwarded to explain the energy paradox: consumers may myopically apply above market discount rates to future energy savings ( Alcott and Wozny 2012 ); account for energy efficiency only after having settled on other product characteristics ( Geistfeld et al. 1977 ); demonstrate loss aversion ( Greene 2008 ); incorrectly associate energy efficiency with poor performance ( Rogers and Shrum 2012 ); or use other decision heuristics that fail to account for efficiency ( Helfand and Wolverton 2011 ). There is no consensus on the dominant source of the energy paradox.

Despite the lack of a strong theoretical understanding of the energy paradox, its persistence in the marketplace indicates that consumer savings are a valid benefit associated with energy-efficiency standards. While market-based tools, such as an energy tax, are likely to be lower-cost tools for achieving emissions reductions ( Karplus and Paltsev 2012 ), energy-efficiency standards may be justified even in situations where they have no environmental benefits, for example when implemented together with a comprehensive cap on emissions. In those cases, efficiency standards could be justified purely based on consumer savings ( Bubb and Pildes 2014 ).

20.2.2. Positive Issues and Analysis

Cost–benefit analysis has become the dominant paradigm for environmental policy analysis in the United States, and its use is now becoming more common around the globe. But that does not mean that the technique is uncontroversial, and debates about its use continue.

20.2.2.1. A Changing Political Context for Cost–Benefit Analysis

In US environmental law, two general alternatives to cost–benefit analysis for setting environmental standards are absolute standards ( Sinden 2005 ) and feasibility standards ( Driesen 2005 ). Absolute standards seek to set environmental quality at levels that present zero (or negligible) risk of harm. The National Ambient Air Quality Standards (NAAQS) under the Clean Air Act, which must be set at a level “requisite to protect the public health” with an “adequate margin of safety” 1 are the most important examples of an absolute health-based standard in US environmental law. Feasibility standards are set to maximize stringency, subject to the constraints of “physically impossible environmental improvements” or standards “so costly that they cause widespread plant shutdowns” (Dreisen 2011). Both absolute standards and feasibility standards are subject to serious objections. Absolute standards raise conceptual and practical problems if there is no known threshold that presents zero risk ( McGarity 1979 ; Coglianese and Marchant 2004 ; Sunstein 1999 ). Furthermore, and paradoxically, the majority of recent NAAQS (adopted under an absolute health-based approach) are less stringent than would be economically efficient, which undermines the normative justification for such an approach ( Livermore and Revesz 2014 ). Feasibility standards have been criticized as “creating significant problems of over- and underregulation” because they are completely insensitive to some costs while weighing other costs as infinitely high ( Masur and Posner 2010 ).

Perhaps in part because of the limitations of these alternatives, cost–benefit analysis has come to be the dominant framework for US environmental policy ( Sunstein 2002 ). While cost–benefit analysis is required in only a few environmental statutes—notably the Toxic Substances Control Act; 2 the Federal Insecticide, Fungicide, and Rodenticide Act; 3 and the Safe Drinking Water Act 4 —for more than 30 years, US presidents have required that significant proposed regulations be subject to cost–benefit analysis ( Revesz and Livermore 2008 ). This presidential requirement applies to all agency decisions unless precluded by statute. 5 The most important case limiting the use of cost–benefit analysis within the environmental arena is American Trucking Associations, Inc v Whitman 6 , in which the Supreme Court held that the statutory silence in Section 109 of the Clean Air Act should be interpreted to bar the consideration of costs (and therefore the use of cost–benefit analysis) for setting the NAAQS. The effect of American Trucking on other statutory provisions was called into question in the 2009 decision Entergy Corp. v Riverkeeper, Inc . 7 In that case, the Supreme Court declined to extend American Trucking to cover a provision of the Clean Water Act that was silent on the use of cost–benefit analysis. After Riverkeeper , it appears that, except in perhaps a handful of instances, Executive Order 13,563 will apply and require agencies to justify their significant environmental regulations by reference to cost–benefit analysis.

Cost–benefit analysis and the closely related practice of regulatory impact analysis are now common practices outside the United States as well. The European Union has undertaken several important steps to promote assessment of costs and benefits of regulatory policy ( Wiener 2006 ). Cost–benefit analyses carried out by governments, independent academics, or non-governmental organizations is now commonly used in many developing and emerging countries to evaluate environmental policy as well ( Livermore and Revesz 2013 ).

The global growth of cost–benefit analysis, and its universal support by presidents of both major US political parties over the past three decades, masks a complex political struggle over the degree to which concerns over economic efficiency ought to inform how environmental policy is set. Because there are important policy consequences associated with cost–benefit analysis, its use is not only debated by scholars, but by organized interest groups as well ( Revesz and Livermore 2008 ).

In the United States, when the Reagan executive order placed cost–benefit analysis at the center of the regulatory state, protection-oriented groups (such as environmentalists) strongly opposed the move, while interest groups that favored more lax regulation (such as industry trade associations) promoted expanded use of the technique. This interest group dynamic remained remarkably consistent over time, surviving multiple changes in party control of the White House ( Revesz and Livermore 2008 ).

Recently, however, the political alignment around cost–benefit analysis has become less stable. In light of congressional failure to enact climate legislation in 2009, the Obama administration has pursued an aggressive agenda of clean air protections, which either directly limit greenhouse gas emissions or have substantial climate co-benefits. At the same time, the administration has continued the long-standing presidential support for cost–benefit analysis and relied heavily on economic arguments to support environmental standards that are more stringent.

Three environmental rules adopted by the EPA under the Obama administration were supported by particularly persuasive cost–benefit analyses: the updated Corporate Average Fuel Economy (CAFE) Standards released in 2012; the 2013 Mercury and Air Toxics Standards (MATS); and EPA’s Cross-State Air Pollution Rule. The CAFE Standards will raise average fuel economy to 54.5 mpg by 2025, with estimated net benefits of approximately $700 billion by 2025 ( National Highway Traffic Safety Administration 2012 ). The MATS extended air-quality standards for mercury and other toxic pollutants to power plants, with estimated net benefits of at least $27 billion in 2016 (EPA 2011a). The Cross-State Air Pollution Rule (CSAPR) is the EPA’s latest attempt to address air-quality problems presented by interstate externalities. The agency’s impact assessment estimated that the rule will produce at least $120 billion annually in net benefits by 2014 (EPA 2011b). Statutorily mandated retrospective analysis prepared by the EPA of air-quality rules adopted pursuant to the Clean Air Act Amendments of 1990 estimated that by 2020, the rules would have at least $1 trillion in net benefits and, under more favorable assumptions, up to $35 trillion ( EPA 2011c ).

Perhaps unsurprisingly, willingness to endorse cost–benefit analysis has shifted in light of these developments. Protection-oriented groups have shown greater openness to cost–benefit analysis ( Livermore and Revesz 2011 ). At the same time, regulatory skeptics have distanced themselves from the technique ( Volokh 2011 ) as did the 2012 Republican presidential nominee Mitt Romney, who argued that cost–benefit analysis “tend[s]‌ to be vulnerable to manipulation and also disconnected from the central issue confronting our country today, namely, generating economic growth and creating jobs” ( Romney 2011 ).

An important component of this political realignment is an expanded emphasis on the employment effects of regulation by the regulated community and some politicians. The phrase “job-killing regulation,” which appeared only four times in major US newspapers in 2007, appeared nearly 700 times in the same outlets 4 years later ( Livermore and Schwartz 2014 ). During the 112th congressional session, employment effects were used to justify several bills to reduce EPA’s regulatory authority. 8 The House Republican Plan for America’s Job Creators included several provisions affecting the rulemaking process ( House Republican Conference 2011 ) and the Regulatory Freeze for Jobs Act, which would block all new significant regulations until unemployment dropped below 6%, passed the House in July 2012. 9

Estimates of the employment effects of regulation have become common in political discourse over environmental policy ( Livermore and Schwartz 2014 ). These estimates, which are typically based on input–output or computable general equilibrium models, are highly sensitive to analytic assumptions and modeling choices, resulting in widely disparate results. In one telling example, a report by the America Coalition for Clean Coal Electricity estimated that two EPA rules would trigger 1.4 million job losses, while a Political Economy Research Institute study predicted the same two rules would spur a 1.4 million job gain ( Livermore and Schwartz 2014 ).

Agencies have also begun to include employment effects alongside cost–benefit analyses. The EPA in particular has included a statement on employment effects in several high profile rulemakings (e.g., EPA 2012a; EPA 2012b). Employment effect estimates generated by agencies are often quite modest, providing a useful counterweight to extravagant jobs claims made by advocacy organizations.

20.2.2.2. Social Cost of Carbon

The application of cost–benefit analysis to regulations with greenhouse gas emissions has become a particular focal point for political conflict over the methodology. In 2009, the Obama administration convened an interagency task force that was charged with developing a “social cost of carbon” to be used across the government to assign a monetary value to greenhouse gas emission reductions in cost–benefit analyses of rulemakings (Interagency Working Group on Social Cost of Carbon [IWG] 2010). The original central estimate provided by the 2010 report for Year 2015 was $24 (2007 dollars), using a 3% discount rate (IWG 2010), and an updated estimate was released in 2013 of $38 (IWG 2013). Since being developed, the social cost of carbon has been used in a number of important rulemakings, including EPA’s fuel-efficiency standards and several Department of Energy appliance efficiency rules (e.g., EPA 2010a; Department of Energy 2013 ).

The taskforce based its estimate on three Integrated Assessment Models (IAMs) that link the physical and economic effects of climate change: the Dynamic Integrated Model of Climate and the Economy (DICE) ( Nordhaus and Sztorc 2013 ); the Climate Framework for Uncertainty, Negotiation, and Distribution (FUND) model ( Anthoff and Tol 2013 ); and the Policy Analysis of the Greenhouse Effect (PAGE) model ( Hope 2013 ). These models translate predictions concerning greenhouse gas emission, temperature change, and physical impacts associated with climate change (such as sea-level rise or effects on agricultural productivity) into monetary terms.

Because many of the systems that are represented by these IAMs are not well understood, there is considerable uncertainty concerning the accuracy of their estimates ( Pindyck 2013 ). Some scholars have argued that these uncertainties make climate change a special case where cost–benefit analysis cannot be usefully applied ( Masur and Posner 2011 ; Rose-Ackerman 2011 ). These arguments have been repeated by industrial trade associations and politicians that oppose greenhouse gas regulations in support of efforts to prohibit the use of the social cost of carbon. Environmental advocacy groups, on the other hand, have argued that the social cost of carbon can be a useful tool for setting climate policy, although they argue that current estimates are too low, because, for example, they fail to adequately account for catastrophic outcomes (Environmental Defense Fund et al. 2013; Weitzman 2009 ; Weitzman 2011 ;). The social cost of carbon, then, represents another example where the traditional interest group alignment concerning cost–benefit analysis has been inverted by new political dynamics.

20.3. Instrument Choice

Identifying the socially desirable level of environmental quality is useful only if there are means to achieve that end. This section explores different types of government interventions (i.e., policy instruments) that can be used to reduce pollution. It first discusses normative questions and then examines instrument choices that have been made in US environmental policymaking. Section 20.4 will explore questions concerning the level of government that is best suited to implement these instruments.

20.3.1. Normative Issues and Analysis

There are a wide range of policies that can be adopted to achieve environmental goals, including labeling and disclosure requirements, technology standards, liability regimes, effluent fees, and tradable emission allowances. These policies may differ along a number of important dimensions, including the flexibility they provide for regulated actors, their ease of enforcement, the information necessary to implement the policy, and the incentives they provide for technological development on the part of private actors ( Goulder and Parry 2008 ). Selecting among instruments involves a sometimes-complex inquiry that is conceptual, as well as practical, and context specific.

20.3.1.1. General Framework

For a given environmental goal, the cost-effective policy will be the one that achieves that goal at the lowest total cost ( Office of Management and Budget 2003 ). While there is substantial controversy about appropriate environmental goals, the aspiration of cost-effectiveness is widely shared. In general, cost-effective policies will equalize marginal abatement costs across all pollution sources or which reductions are possible. When marginal abatement costs are not equal, lower-cost abatement opportunities have not been fully implemented, implying that cost-effectiveness has not been achieved.

An important qualification to the general principle that marginal costs be equalized is the need to ensure compliance with environmental requirements. Enforcement may be easier at some sources than others: point sources of pollution are easier to monitor than non-point sources; inspection of a small number of large sources is less costly than inspection of a large number of small sources; certain companies or private individuals may be judgment proof, undermining the incentive effect of potential penalties ( Farmer 2007 ). For these reasons, and others, the aspiration of equalizing marginal abatement costs may sometimes be subject to practical enforcement constraints. Cost-effective policies will achieve environmental goals at the lowest aggregate costs, including monitoring, inspection, and enforcement, meaning that some theoretical lower-cost abatement opportunities may not be realized.

Dynamic effects may also provide reasons to depart from cost-effectiveness in the short term. Environmental regulations often generate incentives for the development and deployment of new technologies ( Downing and White 1986 ; Ellerman et al. 2003 ; Malueg 1989; Milliman and Prince 1989 ). Frequently, cost-effective instruments will provide the correct incentive for efficient technological development: firms will make marginal decisions to invest in new technologies or use existing technologies in ways that minimize the present value of their compliance costs ( Zerbe 1970 ; Downing and White 1986 ; Milliman and Prince 1989 ). Positive externalities associated with knowledge spillovers, however, may result in underinvestment in technological development ( Katsoulacos and Xepapadeas 1996 ). In such cases, regulations designed to require firms to overinvest in new technologies (relative to their private costs and benefits) may be welfare maximizing ( Jaffe et al. 2001 ). In the long run, this approach would be cost-effective, but in the short term, lower-cost abatement opportunities may be forgone.

An additional element of instrument choice concerns the selection of regulatory tools in the face of uncertainty. A social decision maker can be uncertain about either environmental damages or abatement costs, or both. Weitzman (1974) shows that when a regulator must either set a price (e.g., through effluent fee) or a quantity (e.g., through a pollution cap) cost uncertainty can significantly affect this choice, with the relative elasticity in damage and cost functions determining whether a price instrument is more efficient that a quantity instrument. Recent research shows that nonlinear taxes, graded quantities, or hybrid tax-quantity instruments have advantages over either flat prices or fixed quantities ( Roberts and Spence 1976 ; Weitzman 1978 ; Kaplow and Shavell 2002 ; Pizer 2002 ; Fell et al. 2012 ).

20.3.1.2. Market Mechanisms versus Command and Control Regulation

A particularly important choice that is often presented in the environmental context is between command-and-control style regulation and market-based approaches. The typical example of a command-and-control environmental regulation is a design standard that requires a specific pollution reduction technology to be adopted by all regulated firms. An example of a market-based mechanism is a comprehensive, economy-wide “cap-and-trade” system of tradable emission allowances. There are many alternatives along a command-to-market continuum ( Freeman and Kolstad 2006 ). Performance-based standards, which set effluent limits but do not specify a particular technology, are more market-like than they are a prescriptive design standard (EPA 2010b). Flexibility can be added to a command-and-control standard by allowing firms to comply with emissions requirement through offsets, in which new emissions must be accompanied by equivalent reductions. A particular version of an offset mechanism is the use of “bubbling” to treating a facility or firm as a single source. The use of bubbling under the Clean Air Act new source performance standards provision was the substantive question at the heart of Chevron v NRDC , 10 the case that sets out the contemporary standard of judicial deference to agency statutory interpretations. Compliance flexibility can also be enhanced through banking and/or borrowing, in which past or future emissions reductions can “count” toward emissions limits. Environmental liability rules ( Viscusi and Zeckhauser 2011 ) and labeling and disclosure can be used to achieve environmental goals ( Thaler and Sunstein 2008 ) in place of, or as a supplement to, ex ante controls.

More market-like instruments are often favored on cost-effectiveness grounds because they provide firms with flexibility in achieving emissions reductions and tend to equalize marginal abatement costs across firms ( Montgomery 1972 ; Baumol and Oates 1988 ; Tietenberg 1995 ). On the other hand, command-and-control mechanisms may be easier to enforce ( Grossman and Cole 1999 ) and they avoid problems that arise when emissions are not spatially or temporally fungible ( Sado et al. 2010 ).

20.3.1.3. Environmental Transitions and Grandfathering

As in all areas of policy change, environmental law creates issues of retroactivity when private or public actions are undertaken under a prior regime that can, at least potentially, be governed by the new regime ( Fisch 1997 ). The issue of retroactivity can be especially important in the environmental context because environmental standards can affect decisions that are extremely widespread (e.g., car purchase decisions in the context of fuel economy standards for automobiles) or touch on extremely high-value infrastructure investments (e.g., power plants affected by air-quality standards). Many environmental regimes adopt a bifurcated approach in response to the retroactivity problem, treating new emissions sources differently than existing sources.

Three general justifications can be given for a bifurcated approach. First, existing sources have a life cycle of depreciation and technological obsolescence for reasons unrelated to the environmental regime. Requiring expensive investments to upgrade existing emissions sources that will soon be retired may be unjustified. Second, the marginal cost of pollution control achieved by retrofitting existing sources may be much higher than the same pollution reductions at new sources. Finally, public choice theory may predict that existing sources may act as an effective lobbying coalition against economically justified environmental protections; grandfathering may be the second-best solution to overcome opposition to new controls ( Revesz and Westfahl Kong 2011 ).

An important dynamic effect of the bifurcated approach is referred to as the “old plant effect” ( Ackerman and Hassler 1980 ). When additional costs are imposed on new plants in the form of stringent environmental standards, the life of the existing plants is extended and their replacement by new plants is delayed. The favorable treatment extended to existing sources under the bifurcated approach increases their value, and crowds out new sources based on technologies that are more efficient and would out-compete existing sources in the absence of the environmental policy. The net result on emissions from the imposition of an environmental standard when it is accompanied by an exemption for existing sources is ambiguous ( Nash and Revesz 2007 ). The old plant effect is compounded by a public choice dynamic in which beneficiaries of a grandfathering policy lobby to extend their favorable treatment for as long as possible ( Revesz and Westfahl Kong 2011 ).

Auction-based cap-and-trade or effluent fee systems represent an efficient approach to allocating abatement costs and investments between new and existing sources ( Montero 2008 ). In cases where pure market-based mechanisms are infeasible, bifurcated treatment may be justified, despite the old plant effect. The standard approach to determining the optimal bifurcated treatment is through a two-step, sequential inquiry ( Shavell 2008 ). The first question is the optimal stringency for new sources; the second question concerns the optimal transition rule for existing sources in light of the standards for new sources. The sequential approach, however, does not account for the old plant effect and, therefore, leads to better-than-optimal treatment of existing sources; jointly optimizing the grandfathering rule and the new source standard leads to superior results ( Revesz and Westfahl Kong 2011 ).

20.3.2. Positive Issue and Analysis

Nearly a half-century after the United States embarked on major expansion in federal environmental law, this natural experiment has generated some useful results that can inform future policy design. In particular, experience with the sulfur dioxide trading program established by the Clean Air Act Amendments of 1990 showed that market-based mechanisms have great promise for achieving impressive emissions cuts and low cost. Whether political leaders will profit from this experience is another question.

20.3.2.1. Experience with Market-Based Mechanisms

As noted by Schmalensee and Stavins (2010) , “market-based policies … were innovations developed by conservatives in the [Ronald] Reagan, George H. W. Bush, and George W. Bush administrations.” Given this pedigree, it is perhaps unsurprising that many environmental groups opposed marketable permit schemes ( Hahn and Hester 1989 ). The only major environmental organization that showed a strong interest in developing market-based solutions to environmental problems, the Environmental Defense Fund, was strongly criticized ( Krupp 2008 ).

Developments in the late 1980s and early 1990s shifted this dynamic, holding out the promise that a new political consensus in support of market mechanisms was attainable. The passage of the Clean Air Act Amendments of 1990, which established a national market for trading in sulfur dioxide emissions, is generally regarded as the first large-scale collaboration across the political spectrum to support a marketable permit scheme ( Joskow and Schmalensee 1998 ). The legislation was adopted with wide bipartisan support; only five Democratic and five Republican senators voted against the bill.

The sulfur dioxide emissions-trading program is widely viewed as a major success ( Chan et al. 2012 ). Impressive emissions reductions occurred at low costs ( Ellerman et al. 1997 ). Use of the trading mechanisms allowed firms to deploy relatively low-cost alternatives such as fuel shifting and other production process changes ( Doucet and Strauss 1994 ). The trading program also may have led to technological change that would not have been induced through a design standard ( Burtraw 1996 ; Ellerman and Montero 1998 ; Bohi and Burtraw 1997 ; Keohane 2001 ). The program also resulted in higher-than-expected benefits as the severe health consequences associated with particulate matter (of which sulfur dioxide is a precursor) have become more clear ( EPA 2011c ).

The success of the US sulfur dioxide program spurred major interest in tradable allowance systems ( Ayres 2000 ). Environmental issues for which tradable allowance systems have been implemented include fisheries management and water quality ( Shortle and Horan 2006 ). Most important, a tradable allowance system is widely recognized as the preferred approach to climate change among political leaders ( Stavins 2008 ). The European Emissions Trading System (ETS), created to fulfill obligations under the Kyoto Protocol, is the most important existing greenhouse gas emissions–allowances trading system (IPCC 2007). Despite some continuing difficulties in maintaining price stability, in part owing to an excessively generous overall cap on emissions, the European ETS has led to important emissions reductions and provided valuable lessons in market design ( Brown et al. 2012 ). Within the United States, the political consensus around market-based approaches to greenhouse gas reductions was nearly universal, with presidential nominees of both major parties strongly supporting a cap-and-trade system and environmentalists largely dropping their opposition to market mechanisms ( Bernton 2008 ).

The promise of consensus, however, was short-lived. Comprehensive legislation was an early priority for the Obama administration. A bill to create a comprehensive cap-and-trade regime was adopted by the Democratic-dominated House of Representative without a single Republican vote. 11 When the bill passed the House, debate shifted to the Senate, where it took on a highly partisan tenor. Regulated industry led a major lobbying and public relations push to oppose the legislation. Advocates and politicians that opposed the bill cast it as a tax on energy that would hurt consumers ( Boehner 2009 ). The opposition campaign was ultimately successful, and the bill died in the Senate without being called to a vote ( Stromberg 2010 ). Opposition to cap-and-trade became a centerpiece of the successful Republican effort to retake the House in 2010 ( Good 2011 ). By the time of the 2012 presidential election, the issue had become a political litmus test for conservatism in the Republican primary ( Weigel 2011 ). There is now a broadly shared view that legislation to create a market-based system to control greenhouse gas emissions is not politically achievable in the current political environment ( Broder 2010 ). In the absence of legislation, the EPA moved forward with regulations under the Clean Air Act ( Executive Office of the President 2013 ). While the statutory structure of the Act, especially Section 115, may be broad enough to accommodate a flexible, market-based approach ( Chettiar and Schwartz 2009 ; Chang 2010 ), there is substantial legal uncertainty given the vagueness of the statutory language.

20.3.2.2. Labeling and Disclosure

While political consensus concerning market-based approaches to pollution control was short-lived, there has been renewed interest in labeling and disclosure as a lower cost and, therefore, more politically palatable means of improving environmental quality. In particular, Cass Sunstein’s tenure as the Administrator of the Office of Information and Regulatory Affairs (OIRA) at the White House Office of Management and Budget from 2009 to 2012 was marked by efforts to improve the design of labeling and disclosure regimes to maximize their effectiveness ( Office of Information and Regulatory Affairs [OIRA] 2010 ).

A new fuel economy label adopted in 2011 required all new automobiles to “provide a clear statement about anticipated fuel savings (or costs) over a five-year period” ( Sunstein 2012 ). The label simplifies and clarifies fuel economy information pertinent to consumer decision making, no longer “leav[ing] it to consumers to do the arithmetic needed to figure out the net economic effects of fuel economy standards on their budgets and lives” ( Sunstein 2012 ; EPA 2011d). The design of the new label was foreshadowed in Sunstein and Thaler (2008) , which argued for display of multiyear estimates of fuel costs.

Similarly, in 2009 the EPA promulgated a mandatory greenhouse gas reporting rule, 12 which mimics disclosure programs like the Toxic Release Inventory (TRI) required by the Emergency Planning and Community Right to Know Act. The TRI, which requires reporting of both storage and release of potentially hazardous chemicals, without requiring any additional action, has led to significant reductions in toxic releases into the environment ( Khanna et al. 1997 ). The Greenhouse Gas Reporting Program (GGRP) will create a database covering 85%–90% of total US greenhouse gas emissions by requiring reporting from sources that “emit 25,000 metric tons or more of carbon dioxide equivalent per year in the United States,” excluding the agricultural sector (EPA 2013). The GGRP will increase the quantity of greenhouse gas (GHG) emission information, as well is its visibility and salience, among both GHG sources and the public (OIRA 2010; Cohen and Viscusi 2012 ).

20.3.2.3. Social Norms

There have also been recent efforts to use government institutions to influence social norms in an environmentally friendly direction, an approach that has received attention as a “libertarian paternalist” mechanism to promote social goals ( Sunstein and Thaler 2008 ). One such example is an executive order 13 that seeks to increase the visibility and salience of energy costs within the federal government through methods such as public scorecards and leadership awards ( Sunstein 2011 ). As part of this effort, the federal government has partnered with the private sector to set joint goals for energy efficiency, leveraging its own efficiency improvements to spur improvements more broadly (e.g., Department of Energy 2013 ). These efforts expand on voluntary partnerships programs that have existed in the environmental area for some time ( Borck and Coglianese 2009 ; Coglianese and Nash 2009 ).

20.3.2.4. Reducing the Effect of Grandfathering under the Clean Air Act

Although a bifurcated approach to new and existing sources is a common feature of US environmental law, in recent years the EPA has undertaken a number of significant measures designed to limit the scope of grandfathering. For example, the agency has engaged in a multiyear effort to establish a marketable permit scheme to control interstate pollution that reduces favorable treatment for inefficient pre-Clean Air Act sources. As discussed above, the most recent iteration of this effort, the Cross-State Air Pollution Rule adopted in 2011, was struck down by the D.C. Circuit in 2012. Also in 2011, EPA adopted the MATS, which limits the emissions of a number of toxic air pollutants from both new and existing power plants. 14 And, in 2013, President Obama indicated that in 2014, EPA will propose a rule limiting the greenhouse gas emissions of existing power plants under Section 111(d) of the Clean Air Act. 15 The combined effect of these approaches could significantly accelerate the shutdown of existing plants that had been grandfathered for more than 40 years.

20.4. Jurisdictional Allocation

The existence of externalities, transaction costs, and imperfect property rights imply that an unregulated marketplace is unlikely to provide efficient levels of environmental quality—government intervention is necessary. Once that preliminary observation has been made, there is a second question concerning how governmental authority over environmental policy ought to be allocated among different levels of government, from the local (municipalities) to the global (international institutions). This question has important implications for the effectiveness and legitimacy of environmental policy.

20.4.1. Normative Issues and Analysis

The allocation of policymaking responsibility across jurisdictions is an important question in many legal domains, and one that has caught the attention of law and economics scholars ( Faure and Johnston 2009 ). Economics, in particular, can address the role of incentives in determining whether a policymaking context is amenable or not to local control. Environmental policymaking presents a number of specific issues that are relevant to questions of jurisdictional allocation.

20.4.1.1. General Framework

Several important inputs into environmental protection can vary by geographic region, a fact that increases the desirability of locally tailored standards. These geographically variable inputs include the marginal costs of pollution control, preferences concerning the value of environmental quality (compared with other goods), and the level of exposure to environmental risk (which is affected by population density, among other factors) ( Mendelsohn 1986 ; Nordhaus 1994 ). To the extent that information about geographic variability is more likely to be held by local government officials, there is a justification for a rebuttable presumption in favor of local control over environmental policy ( Revesz and Stavins 2007 ). At the same time, environmental protection is also an area where, at least in some instances, the local-control presumption is rebutted by the existence of interjurisdictional externalities ( Revesz 1996 ).

Alternative justifications have been given for why national-level control over environmental protection is desirable, but they have important weaknesses. Most prominently, scholars have argued that environmental protection presents a “race-to-the-bottom” problem in which interjurisdictional competition leads to inefficiently low levels of regulation ( Esty 1996 ). Basic models have demonstrated, however, that rational, self-regarding jurisdictions in a perfectly competitive market will arrive at efficient levels of pollution control ( Revesz 1992 ). If the assumption of rationality or perfect competition is relaxed, jurisdictions may over- or underregulate ( Revesz 1997 ). Federal floors (which are common in environmental law), then, are no better justified than federal ceilings (which are relatively uncommon, although not unknown). In addition, to the extent that environmental protection is federalized, jurisdictions may simply compete in other areas more directly under local control and simply over- or underprovide some other public good or service ( Revesz 1997 ).

20.5.2. Positive Issues and Analysis

While economics provides a theoretically attractive framework for analyzing how jurisdiction over environmental policymaking ought to be allocated, observed behavior sharply diverges from its recommendations.

20.4.2.1. Jurisdictional Mismatch

The allocation of authority between the national government and the states in US environmental law is not tailored to a jurisdiction-externality justification for federal authority. There are many federal statutes that address environmental problems that do not have any interjurisdictional externalities. These include federal programs to remediate hazardous waste sites, 16 and set limits on the allowable level of contaminants in drinking water. 17 Furthermore, the Clean Air Act and Clean Water Act, which do address pollution sources with the potential to generate important interstate externalities, are generally focused on local, rather than interstate, pollution. The core of the Clean Air Act consists of federally prescribed air-quality standards designed and implemented at the local level. 18 Indeed, facilities can meet these air-quality standards by exporting more pollution across state lines ( Revesz 1996 ). Plant-level emissions standards are not oriented toward facilities with important interstate consequences, instead covering all sources by pollution category and vintage. 19 The sections of the Clean Air Act that are specifically targeted toward interstate pollution have been devilishly difficult for the EPA to implement, with multiple attempts being struck down by the D.C. Circuit Court of Appeals. 20 The Clean Water Act fares little better, with most of its emphasis placed on pollution sources that have only intrastate effects ( Stewart 1982 ).

20.4.2.2. Lack of a Global Agreement on Climate Change

If governance power should be allocated to the minimally extensive jurisdiction that internalizes any relevant externality, in the context of climate change, that jurisdiction is the entire globe. Because greenhouse gas emissions in any country lead to climate change risks in all countries, a global approach to greenhouse gas limits is well justified.

There has been a substantial effort through the United Nations Framework Convention on Climate Change (UNFCCC) to negotiate a set of meaningful mandatory limits on emissions that would apply to all countries. While the UNFCCC process has had some successes, it has faced extremely serious stumbling blocks. In particular, the failure to negotiate a successor agreement to the Kyoto Protocol at the 15th Conference of the Parties meeting in Copenhagen, Denmark, was seen as a major setback for the Intergovernmental Panel on Climate Change (IPCCC) process ( Vidal et al. 2009 ).

Absent progress at the international level, for a time, initiative for climate policy devolved to the regional or domestic level. The European ETS remains the most robust international emissions-trading program and serves as the primary vehicle for emissions reductions within European countries ( European Commission 2013 ). Domestic efforts to curb greenhouse gas controls have been forwarded successfully in some countries but met with stiff resistance in other countries, such as Australia ( Plumer 2013 ).

20.4.2.3. State Innovation

Within the United States, the lack of national emissions limits, and especially the lack of climate legislation, resulted in a further devolution to the state level ( Carlarne 2008 ). US states have adopted three basic approaches. Early efforts tended to involve command-and-control regulation. In 1997, Oregon enacted the first legislation in the United States addressed at limiting greenhouse gas emissions, setting a standard for carbon dioxide emissions from the state’s natural gas electric plants ( Environmental Defense Fund 2012 ). In 2001, Massachusetts enacted carbon dioxide regulations for all power plants, as part of a comprehensive bill aiming to cut pollution from the electricity sector ( Daley 2001 ). In 2002, California enacted legislation that required the state regulatory agency to “adopt regulations that achieve the maximum feasible and cost-effective reduction of greenhouse gas emissions from motor vehicles.” 21

The California effort was especially significant because the state plays a special role under the Clean Air Act ( Carlson 2009 ). Section 209 of the Act allows California to request a waiver from the EPA to set more stringent mobile source standards than the federal standards. 22 Other states can then follow suit, and depart from the federal standard, if they choose. When California issued regulations in 2004 establishing greenhouse gas limits for motor vehicles, it set in motion a political chain of events that ultimately led to a “car deal” negotiated among major automobile manufacturers, the federal government, and other stakeholders in support of a national greenhouse gas standard for new automobiles under the Clean Air Act ( Freeman 2011 ).

Subsidies to encourage greater reliance on renewable sources of electricity are a second approach adopted by many states. The most common approach, referred to as “renewable portfolio standards,” is a mandate that a target share of the state’s energy supply be generated by renewable sources ( Davies 2012 ). For example, California’s standard requires suppliers to obtain 20% of their energy from renewable sources, with this proportion rising to 33% by 2020 ( Farber 2008 ). Clean energy subsidies face important challenges, including the need to define “renewable” in a manner that accurately captures environmental benefits ( Duane 2010 ) and likely results in relatively high-cost emission reductions (OECD 2013).

Finally, states have experimented with a cap-and-trade approach to greenhouse gas emissions limits. The Regional Greenhouse Gas Initiative (RGGI) is one such effort. RGGI is a collaboration of northeastern states that have signed a joint memorandum of understanding (MOU) setting out each state’s share of a regional carbon dioxide cap, adopted legislation or regulation approving that MOU, and, beginning in 2008, implemented an auctioning and trading process ( Duane 2010 ). While one state from the initial group of ten (New Jersey) has withdrawn, the RGGI regime has remained relatively stable and has raised over $1 billion for participating states in the first four years of operation ( Rabe 2009 ).

In 2006, California passed the California Global Warming Solutions Act, commonly known as AB 32. 23 That legislation launched a multistep process to reduce greenhouse gas emissions in the state to 1990 levels by 2020. The centerpiece of the regulatory approach implementing AB 32 is a statewide cap-and-trade program. California, however, has not adopted a purely market-based approach, having augmented its cap-and-trade approach with a range of additional policies, including plant specific performance standards, energy-efficiency requirements, and a renewable portfolio standard. Many of these additional measures are likely to lead to increased costs without obvious climate benefit ( Carlson 2013 ).

These state efforts set the stage for a renewed round of federal efforts, primarily the Clean Power Plan that was finalized by the EPA in 2015. This rule, promulgated under the agency’s existing authority under the Clean Air Act, establishes state-by-state emissions limitations in part based on prior state experience with emissions reductions. Under the Plan, states have considerable discretion in choosing between different approaches to meeting their emissions budget, a process of experimentation that may ultimately produce information that helps alleviate political gridlock at the national level ( Livermore 2017 , forthcoming).

The EPA’s move to regulate greenhouse gas emissions at the national level in turn helped support efforts by the Obama administration to negotiate a successful emissions reduction agreement during the 21th Conference of the Parties meeting in Paris, France. The Paris Agreement is widely perceived as providing a substantially more meaningful roadmap to genuine greenhouse gas emissions than the products of earlier climate negotiations.

20.5. Conclusion

Since the publication of Revesz and Stavins (2007) , there have been some significant normative advances in the area of environmental law and economics. For example, the emergence of climate change as the area of central concern for environmental regulation has brought a great deal of attention to the question of how to discount benefits that accrue into the far future and primarily affect individuals not yet born. Also, the rise of behavioral law and economics has created a shift away from exclusive reliance on neoclassical models.

But the most significant changes have been on the positive side. In particular, the traditional alignment of interest groups has come close to experiencing an about-face. Conservative, antiregulatory groups traditionally favored cost–benefit analysis, market-based instruments, and decentralization. Progressive, proregulatory groups traditionally opposed these approaches. In recent years, however, the tables have often been turned. These shifts suggest that commitment to principles is secondary to commitment to substantive regulatory outcomes, with groups of both sides of the spectrum availing themselves of whatever argument will better promote their preferences concerning the stringency of regulation.

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For example, the following bills were proposed during 2011 by the 112th Congress: H.R. 1 (a continuing appropriations resolution for FY2011, which passed the House in February, containing more than twenty riders restricting or prohibiting the use of funds to implement various regulatory activities under EPA’s jurisdiction); H.R. 199, Protect America’s Energy and Manufacturing Jobs Act of 2011 (proposing a 2-year suspension of climate rules); H.R. 457, H.R. 517, H.R. 2018, and S. 272 (to modify EPA’s authority under the Clean Water Act); H.R. 750 and S. 228, Defending America’s Affordable Energy and Jobs Act (pre-empting any regulation to mitigate climate change); H.R. 872, Reducing Regulatory Burdens Act of 2011 (amending the Clean Water Act and FIFRA to alter EPA regulation of pesticide discharge into water); H.R. 910, Energy Tax Prevention Act (to prevent greenhouse gas regulations under the Clean Air Act); H.R. 960 and S. 468, Mining Jobs Protection Act (amending EPA’s consultation procedure under the Clean Water Act); H.R. 1391, Recycling Coal Combustion Residuals Accessibility Act of 2011, and H.R. 1405 (prohibiting coal ash from being regulated under Subtitle C of RCRA); H.R. 2021, Jobs and Energy Permitting Act of 2011 (amending the Clean Air Act to change permitting of off shore sources); H.R. 2250 and S. 1392, EPA Regulatory Relief Act of 2011 (to delay the Boiler MACT rules); H.R. 2584 (an appropriations bill with various riders); H.R. 2681, Cement Sector Regulatory Relief Act (to delay the Cement MACT rules); H.R. 3400 and S. 1720, Jobs Through Growth Act (incorporating several of the above restrictions on EPA authority); and S.J. Res. 27 (a resolution to disapprove EPA’s cross-state air pollution rule).

H.R. 4078, Regulatory Freeze for Jobs Act (July 25, 2012). http://www.gop.gov/bill/112/2/hr4078 [Accessed 29 September 2016].

467 U.S. 837 (1984).

Office of the Clerk of the U.S. House of Representatives. (June 26, 2009). “Final Vote Results for Roll Call 477.” http://clerk.house.gov/evs/2009/roll477.xml [Accessed 29 September 2016].

40 C.F.R. pt. 98.

Executive Order 13,514, Federal Leadership in Environmental, Energy and Economic Performance, 74 Fed. Reg. 194 (Oct. 5, 2009).

78 Fed. Reg. 79 (Apr. 24, 2013).

The White House, “Presidential Memorandum—Power Sector Carbon Pollution Standards.” http://www.whitehouse.gov/the-press-office/2013/06/25/presidential-memorandum-power-sector-carbon-pollution-standards [Accessed June 25, 2013].

Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 103 et seq. (2012).

Safe Water Drinking Act, 42 U.S.C. § 300f et seq. (2012).

See Clean Air Act §§ 108–109, 42 U.S.C. §§ 7408–7409 (2012).

§ 111, 42 U.S.C. § 7411 (2012).

See North Carolina v EPA , 531 F.3d 896 (D.C. Cir) (striking down the Clean Air Interstate Rule); EME Homer City Generation, L.P. v EPA , 696 F.3d 7 (D.C. Cir. 2012) (striking down the Cross State Air Pollution Rule), rev’d., EPA v EME Homer City Generation L.P., 134 S. Ct. 1584 (2014).

California Assembly Bill 1493 (July 22, 2002). http://www.leginfo.ca.gov/pub/01-02/bill/asm/ab_1451-1500/ab_1493_bill_20020722_chaptered.pdf [Accessed 29 September 2016].

Clean Air Act § 209, 42 U.S.C. § 7543 (2012).

Global Warming Solutions Act, California Assembly Bill 32 (Sept. 27, 2006). http://www.leginfo.ca.gov/pub/05-06/bill/asm/ab_0001-0050/ab_32_bill_20060927_chaptered.pdf [Accessed 29 September 2016].

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Supreme Court’s Texas Order Highlights Abuse of Dubious Shortcut

The US Supreme Court will likely one day decide the constitutionality of the Texas immigration law it allowed to take effect this month, but the court’s March 19 order in the case turned on an arcane procedural device that has emerged in recent years—the so-called administrative stay.

Administrative stays are an under-the-radar scandal, and the time has come to rein them in.

The administrative stay originated as a tool for appellate courts to solve a problem of timing in evaluating motions for emergency relief. When a lower court issues a ruling that threatens to impose immediate harm, a party may ask an appellate court to stay the trial court’s ruling during litigation with what is called a “stay pending appeal.” Because lower courts’ rulings are presumed correct, a stay pending appeal is an “extraordinary” remedy requiring a showing of a likelihood of success on the merits and irreparable harm.

But appellate courts need time to decide whether to grant a stay pending appeal—they must study the record, read the parties’ submissions, and sometimes issue written opinions.

Enter the administrative stay. Appellate courts may issue an administrative stay to buy some time as they consider whether to grant a full-blown stay pending appeal.

When used for its intended purpose, an administrative stay is a sensible short-term tool that allows appellate courts to maintain the status quo as they take a few days to decide whether the extraordinary relief of a stay pending appeal is warranted.

But administrative stays can be—and ever more frequently have been—used by courts of appeals to award indefinite relief without bothering to resolve the underlying stay request. The practice has metastasized in recent years, and it effectively gives parties a stay pending appeal without any showing that they deserve one.

The Supreme Court’s immigration order spotlights this misuse of administrative stays. After Texas passed its controversial law allowing state officials to arrest individuals suspected of entering the country illegally, a trial court quickly declared the law unconstitutional. Texas then asked for a stay pending appeal from the US Court of Appeals for the Fifth Circuit.

Before even awaiting the plaintiffs’ full response, the Fifth Circuit granted what it called an “administrative stay,” then deferred the motion for a stay pending appeal to the merits panel. For all practical purposes, this gave Texas a stay pending appeal without any finding that it had met the high bar for one.

The Supreme Court blessed this maneuver. While the majority didn’t explain its reasoning, Justice Amy Coney Barrett, joined by Justice Brett Kavanaugh, justified the decision not to intervene on the ground that the Fifth Circuit had merely entered an “administrative stay” and “has not yet rendered a decision on whether a stay pending appeal is warranted.”

In her dissenting opinion, Justice Sonia Sotomayor noted the Fifth Circuit’s “troubling habit of leaving ‘administrative’ stays in place for weeks if not months.” But the Fifth Circuit is hardly the only offender. The practice has become ubiquitous throughout the courts of appeals.

The most egregious case I’m aware of came out of the US Court of Appeals for the District of Columbia Circuit—and I was on the wrong end of it.

The issue arose in landmark litigation addressing whether the House of Representatives had authority to bring suit in federal court to enforce a congressional subpoena against former White House Counsel Don McGahn during the run-up to the first impeachment of former President Donald Trump. The House Office of General Counsel (where I then worked) in 2019 persuaded Ketanji Brown Jackson, then a district court judge, to order McGahn to comply with the subpoena.

The D.C. Circuit granted an administrative stay, noting the stay “should not be construed in any way as a ruling on the merits of either the motion for stay pending appeal or the appeal.”

But it then left that so-called administrative stay in place for more than a year and a half—until the election of President Joe Biden forced the parties to a negotiated resolution of the case. As a result of the administrative stay, the House didn’t obtain the testimony from McGahn that could have made a difference in its impeachment effort.

Even as she acquiesced to the Fifth Circuit’s administrative stay, Barrett noted that an “administrative stay should last no longer than necessary to make an intelligent decision on the motion for a stay pending appeal.” I agree. In the world of high-stakes appellate litigation, delay can be the whole ballgame, and the practice of granting an administrative stay as a substitute for a stay pending appeal is indefensible.

Because improper administrative stays are equal-opportunity offenders, they provide a rare opportunity for reform. The Judicial Conference Advisory Committee on Appellate Rules, which helps set the rules that govern litigation in the federal courts of appeals, should amend the Federal Rules of Appellate Procedure to prevent the misuse of administrative stays.

The rules should be amended to require that administrative stays be limited to the purpose of deciding whether to grant a stay pending appeal, and to specify that administrative stays can’t be used to grant indefinite relief. Critically, the rules should mandate that an administrative stay expire no later than the end of a limited period—say, 10 business days.

This common-sense reform will ensure administrative stays continue to serve their intended purpose, without allowing administrative stays to convert what should be the extraordinary relief of a stay pending appeal into ordinary relief available in most every case.

The case is United States v. Texas, U.S., No. 23A814, 3/19/24.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law and Bloomberg Tax, or its owners.

Author Information

Will Havemann is senior associate and an appellate litigator at Hogan Lovells. He was associate general counsel at the US House of Representatives from 2019 to 2021.

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To contact the editors responsible for this story: Jessie Kokrda Kamens at [email protected] ; Alison Lake at [email protected]

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