Taking Slippage Seriously: Noncompliance and Creative Compliance in Environmental Law

Abstract

There is many a slip 'twixt the cup and the lip."' Nowhere is this more true than in environmental law. In all areas of law, there are gaps between the "law on the books" and the "law in action," but in environmental law the gap is sometimes a chasm.' At some level, this fact is well-known to everyone in the field. But, as scholars and teachers of environmental law, our focus has generally been elsewhere: on the standard-setting "cup" rather than the noncompliance "slip."The core focus of environmental scholarship has been on the federal standards governing pollution, hazardous waste, and preservation of wilderness and wildlife. 3 Much scholarship has addressed questions like the following: -Should we base standards on feasibility and available technology, or on quantitative risk assessment and cost-benefit analysis? 4 • How much discretion should agencies have in setting standards? 5 * Henry J. Fletcher Professor of Law and Associate Dean for Faculty Research and Development, University of Minnesota. Helpful comments were provided by Jim Chen, Dan Gifford, and the participants at the Georgetown Law and Economics Workshop and the Harvard Environmental Law Review Symposium on "Environmental Law: Trends in Legal Education & Scholarship." 1. PALLADUS, bk. X, epigram 32, in THE GREEK ANTHOLOGY (John W. Mackail ed., 1906).2. Consider, for instance, the following appraisal of the Toxic Substances Control Act ("TSCA"): "In working circles, TSCA is sometimes called 'the PCB Act,' which gives a fair idea of how one and a half pages [of the statute] that are strictly business can come to dominate sixty-four pages that are mostly talk." WILLIAM H. RODGERS, ENVIRON-MENTAL LAW 492 (2d ed. 1994).3. With numerous variations and some exceptions, the statutes require agencies such as the Environmental Protection Agency ("EPA") to take all feasible measures to attain some environmental goal, often in the form of a requirement of best available technology. For the author's views about this system's virtues and shortcomings, see generally DANIEL FARBER, Eco-PRAGMATISM: MAKING SENSIBLE ENVIRONMENTAL DECISIONS IN AN UNCER-

California groundwater management, science-policy interfaces, and the legacies of artificial legal distinctions

“…Legal scholars often emphasize that law is more than just the words in authoritative legal texts like constitutions, statutes, and court decisions. Rather, laws take effect through the interpretations and actions of a variety of institutions, governmental and otherwise, and those interpretations and actions often expand upon, and sometimes differ from, the letter of written law [28,29]. Relatedly, administrative lawyers emphasize that statutes are often just a starting point for the development of legal rules, and that statutory mandates often need to be fleshed out through regulations, guidance documents, agency orders, and an accumulation of other discretionary decisions [30].…”

The Challenge of Collecting and Using Environmental Monitoring Data

“…The supporters of stronger environmental regulation accordingly face significantly greater organizational challenges compared to the opponents (Zinn 2002), particularly for the ongoing implementation of environmental statutes by agencies. Implementation is essential but low profile compared to the enactment of new laws (Farber 1999).…”

The underappreciated role of regulatory enforcement in natural resource conservation

“…Recent challenges to the use of regulatory enforcement have a history, from SLAPP suits (strategic lawsuits against public participation) initiated by industry, developers, and federal land users; to the use of congressional policy riders exempting various programs and projects from judicial review (Farber 1999;Plater et al 2004;Sher and Hunting 1991). But the criticism and corresponding threats appear deeper and wider today, coming from the executive branch, Congress, interest groups, and the academic and policy communities.…”