An article by Professor Jim Salzman has been selected for publication in an annual peer-selected compilation of the 10 most significant articles in the fields of land use and environmental law from 2011.
Salzman, Duke’s Mordecai Professor of Law and Nicholas Institute Professor of Environmental Policy, co-authored “Gaming the Past: The Theory and Practice of Historic Baselines in the Administrative State," (64 Vanderbilt Law Review 1-57), with J.B. Ruhl, the David Daniels Allen Distinguished Chair in Law at Vanderbilt Law School. Its selection for publication in the Land Use & Environmental Law Review’s annual review of scholarship (Volume 43) marks the sixth time one of Salzman’s articles has appeared in the special volume; another piece he wrote with Ruhl was selected for inclusion in last year’s collection.
The article examines the attributes and operations of historic baselines, a standard used widely by Congress and executive branch agencies in policymaking but rarely considered by scholars.
Some common examples of historic baselines include the Kyoto Protocol’s reliance on 1990 emissions levels as the baseline to measure greenhouse gas reductions by 2012, reliance on the U.S. census to allocate federal benefits, or management of wildlife refuges to recreate “historic conditions.”
“Our central inquiry is to examine what makes historic baselines so attractive to Congress and the President in some contexts but not in others,” Salzman and Ruhl write in the introduction. “Historic baselines are found in many fields, from budgeting and criminal sentencing to environmental protection and land use, yet their particular attributes ─ what makes them potentially different from other approaches ─ remain unexamined. We do not see historic baselines used everywhere, so there must be a converse question: How does reliance on a historic baseline introduce constraints that might not be present with other types of goals? Put another way, when are absolute target, risk-based, technology-based, or cost-based standards more attractive than historic baselines?”
Using examples from wetlands policy, the Kyoto Protocol, the Endangered Species Act, climate change policy, and other regulated fields, Salzman and Ruhl build an analytical framework for understanding how historic baselines are designed and strategically used ─ or abused ─ in regulatory policymaking. They find limits when they examine the potential use of historic baselines in climate change policy.
“Our analysis shows that historic baselines will be an essential policy instrument for designing approaches to limit greenhouse gas emissions and enhance carbon sinks, but that they will prove unworkable or even counterproductive in the context of climate change adaptation policy,” they write. In that context, they find “baselines simply do not easily fit because the policy goal is fundamentally about resetting the clock, not turning it back. There is no past to leverage when it comes to climate change adaptation. This may be true in other cases where massively transformative forces are at work, such as with the global financial crisis. Going back to the past may be appealing in these settings but it is ultimately infeasible. Policymakers reaching for a more forward-looking policy thus should eye warily the appeal to the past embedded in historic baselines.”