Salzman, Duke’s Mordecai Professor of Law and Nicholas Institute Professor of Environmental Policy, co-authored “Climate Change, Dead Zones, and Massive Problems in the Administrative State: Strategies for Whittling Away,” (98 California Law Review 59-120), with Professor J.B. Ruhl of Vanderbilt Law School. Its selection for publication in the Land Use & Environmental Law Review’s annual review of scholarship (Volume 42) marks the fifth time one of Salzman’s articles has appeared in the special volume.
The article examines, from theoretical and practical perspectives, what it means for agencies to whittle away at massive and complex problems such as climate change, sprawl, and low oxygen in the Gulf of Mexico, known as dead zones. Mandates that agencies solve massive problems such as sprawl and climate change roll easily out of the halls of legislatures, but as a practical matter what can any one agency do about any such problem? Serious policy challenges such as these have dimensions far beyond the capacity of any single agency to manage effectively. Rather, as the Supreme Court observed in Massachusetts v. Environmental Protection Agency, “[a]gencies, like legislatures, do not generally resolve massive problems in one fell regulatory swoop. They instead whittle away at them over time, refining their preferred approach as circumstances change and they develop a more-nuanced understanding of how best to proceed.” Easy to say, but hard to do.
Agencies are increasingly being told to address massive problems — whether sprawl, climate change, or some other daunting challenge — but are without obvious tools or strategies to do so. In their article, Salzman and Ruhl explore what it means for agencies to whittle away at massive problems. Administrative law scholarship has assumed that massive problems are similar to one another, focusing instead on issues of jurisdiction and instrument choice — who should whittle and which knife they should use. The article argues that the nature of the problem — the stick to be whittled — deserves equal attention. Some problems, because of the presence of certain types of cumulative effects from multiple sources, are significantly more difficult for agencies to manage. “It is the combination of a large, loose network of diverse actors, a complex causal chain, and spatial and temporal discontinuities,” they write, “that make these cumulative effects problems such a snarl for the administrative state.”
Using examples from the fields of environmental and land use law, they develop a model to identify the attributes of various cumulative effects that drive massive problems and examine how these cumulative effects can distort or undermine policy responses. Arguing that conventional policy approaches to guide the design of regulatory institutions and tools have proven deeply inadequate to tackle these issues, which generally fall under or touch on the regulatory authority of multiple agencies, Salzman and Ruhl draw on recent scholarship in political science to propose an effective strategy for agencies to whittle away at massive problems through loosely linked “weak ties” networks of federal, state, and local agencies. They illustrate how this can work in practice, using a case study of water pollution in the Gulf of Mexico.