Salzman article on “whittling away” at massive environmental problems selected among best of 2010

September 16, 2011Duke Law News

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 2010.

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. Its starting point is the Supreme Court’s directive to the Environmental Protection Agency to do just that in its regulation of greenhouse gases in its 2007 ruling in Massachusetts v. EPA — a “hugely important” decision, according to Salzman.

“The EPA, for a variety of reasons, was asking the Court to waive its duty to regulate greenhouse gasses,” he notes. “They made a whole range of arguments, one of them being that even if the agency has legal authority under the Clean Air Act to regulate greenhouse gases, it won’t make any difference,” because it’s a global pollutant causing a cumulative problem.

“One sympathizes with the EPA, but the Court said, ‘We don’t expect you to solve this problem in one fell swoop. We want you to whittle away at it.’ JB Ruhl and I read the opinion and thought, ‘What does that mean?’”

The two saw an opportunity to revisit and expand research they had undertaken earlier on cumulative problems — those caused by non-source point pollution, when multiple small sources contribute to big problems. They represent serious policy challenges, with dimensions far beyond the capacity of any single agency to manage effectively, Salzman points out.

He and Ruhl argue that the nature of the problem — the figurative stick to be whittled — deserves as much attention as issues of jurisdiction and regulatory instrument choice, the traditional focus of administrative law scholars.

“By no means is there a one-size-fits-all regulatory solution to massive problems,” he says. “The type of massive problem makes a big difference in terms of how we should think about dealing with it, and that there are discreet types of these problems. Depending on the problem, in the framework we’ve suggested there are different ways to act effectively.”

They identify several discreet types of massive problems that face agencies: “aggregation problems,” such as wetlands regulation where the nature of the problem doesn’t substantially change depending on size; “spaghetti bowl problems,” such as oceans, where different “strands” — such as fisheries, pollutants, and coastal zone management — must be identified and, to some extent, regulated individually, in order to achieve intelligent regulation of the whole; “feedback problems,” which occur when the strands are effectively connected, so that acting on one strand affects the others; “discontinuity problems” — such as climate change and Gulf hypoxia — when the actors are separated by time or space, and those who suffer are not actually those who caused the problem: and “policy jungles,” or “complex aggregation problems,” such as urban sprawl, which involve different causal chains and discontinuities.”

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,” Salzman and Ruhl write, “that make these cumulative effects problems such a snarl for the administrative state.”

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.

Salzman has had four articles previously selected for inclusion in Land Use & Environmental Law Review annual compilations of the best environmental law scholarship:

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Professor Jim Salzman
Professor Jim Salzman delivered Pace Law School’s 11th Annual Gilbert and Sara Kerlin Lecture on Environmental Law on Oct. 18, 2010. His lecture titled “What is the Emperor Wearing? The Secret Lives of Ecosystem Services,” was published in 28 Pace Environmental Law Review, 591-613 (2011).