Volume 40, Issue 1

WINTER 2010—FORTIETH ANNIVERSARY ISSUE

Table of Contents

TRIBUTE

Words from the First Editor-in-Chief

Ann Morgenstern Reynolds

FORWARD

Ashes and the Phoenix

Ronald B. Lansing

The following six excerpts are from my book manuscript (a memoir in progress) tentatively titled Crystallizing: The Accreditation Era of Northwestern School of Lewis & Clark Law School (1965–1974). The excerpts focus on the first five or six years of the forty-year old Environmental Law. The segments, taken out of context, will be better understood with these background materials:

1. My account of that era is a memoir. I lived the times as one of the five original faculty. The text, therefore, is written in first-person, from my witness and research.
2. The era began in 1965 when two venerable colleges merged—one a law school and the other a liberal arts and sciences school. Both traced their origins back to Oregon pioneer times in the 1800s. Joined, they became contractually titled Northwestern School of Law of Lewis & Clark College.
3. In spite of its veneration and strong acceptance in the bench and bar of Oregon, the law school had never bothered to become recognized by the two national law school accrediting agencies: the American Bar Association (ABA) and the American Association of Law Schools (AALS). Now, in 1966, the school began upon that quest.
4. Among many accrediting requirements was the need for building a law school complex. The law school and its evening education never had a home of its own. It had operated out of various rented quarters in downtown Portland. Having moved to the Lewis and Clark campus, the law school still did not have its own building complex. Nighttime law education was temporarily spread throughout the campus, once undergrad classes were put to bed. Schooling was conducted in chemistry, literature, and other liberal arts and sciences classrooms. The 7000-book law library was in the basement of a music hall. Law school headquarters were improvised in two residential homes owned by the college and shared by the language department. A law dean, associate dean, four professors, and three staff were officed in bedrooms, dining rooms, and kitchens. My office was the living room in one of the houses. The law school was quartered in that fashion for four years, in wait for the building of its Tryon Forest home, which was not completed until fall semester of 1970.
5. Lewis and Clark college trustees and administrators had a heavy hand in its new law school management. The trustees created a Standing Committee on the Operation of the Law School (SCOLS), composed mainly of trustees, Oregon Supreme Court justices, trial judges, prominent lawyers, and other dignitaries, plus the law school dean and one law professor. SCOLS formed subcommittees on law school admissions, buildings, budget, development, and other ad hoc matters. The small, newborn law faculty was at the threshold of law schooling and just beginning to peek at and squeeze into the business of operations. Paths were fated to cross.

It was in such humble settings that Environmental Law was conceived, gestated, born, and christened.

ARTICLES

Capping Carbon

David M. Driesen

This Article addresses the problem of how to set caps for a cap- and-trade program, a key problem in pending legislation addressing global climate disruption. Previous scholarship on emissions trading programs focuses overwhelmingly on trading’s advantages and sometimes wrongly portrays environmental improvement as an automatic byproduct of adopting a cap-and-trade approach. A trading program’s success, however, depends critically upon timely and effective cap setting.

This Article shows that often regulators have employed a best available technology (BAT) approach to cap setting for trading programs, i.e., setting the cap at a level that regulated polluters can achieve with government-identified technology. This descriptive claim suggests that trading does not necessarily provide an antidote to the problems associated with BAT regulation, as the literature often claims; instead, trading programs often constitute a form of BAT regulation in many respects. The rest of the Article explores this insight’s implications.

Analytically, this Article reviews three ways to establish aggregate caps: effects-based, cost-benefit based, and technology-based cap setting. It shows that each of these approaches has theoretical and practical advantages and disadvantages, but only effects-based cap setting frees the regulator from the need to evaluate technologies in order to establish a cap.

Since trading does not automatically transcend BAT, this Article provides recommendations on how to improve cap setting both generally and in the climate disruption context. It suggests that in the climate disruption context, a legislative effects-based approach offers an attractive and viable cap-setting method. But normative acceptance of effects-based caps requires some adjustments in how we think about costs—mainly a recognition that they are neither fixed nor predictable, but can change as a result of a cap-and-trade program.

This Article also shows that auctions can play an important role in facilitating avoidance of the problems of administrative delay and strife that accompanied BAT regulation. While commentators usually agree that auctions offer economic advantages, the literature has not paid sufficient attention to their administrative advantages. We should think of auctions as essential to effective cap setting, not just as a nice way of avoiding unattractive distributional consequences like windfall profits. But this Article also explores how the possibility of BAT-like administrative delay should influence criteria and administrative procedures for agency distribution of allowances to firms. Finally, this Article makes recommendation on how cap-setting decisions can circumvent favoritism toward existing sources and the difficulty of revising limits once establishes—both BAT problems that can arise under trading as well. Thus, jettisoning the notion that trading automatically avoids problems traditionally associated with BAT leads to a set of useful insights about how to set caps.

Climate Exceptionalism

By John Copeland Nagle

“Climate exceptionalism” is the belief that the problem presented by climate change is different from the air pollution problems that we have addressed in the past. The Supreme Court appeared to have rejected that claim in Massachusetts v. EPA, when it held that greenhouse gases are pollutants within the meaning of the Clean Air Act. But climate exceptionalism persists as advocates emphasize the differences between climate change and traditional air pollution, and as they question whether the entire pollution paradigm is appropriate for responding to climate change.

This Article explores the debate about climate exceptionalism. It identifies the ways in which climate change is like other air pollution problems and the ways in which it is different. It then analyzes how the debate concerning climate exceptionalism affects the preferred response to climate change. If climate change is simply the latest air pollution problem, then the tools that we have developed to respond to pollution can be deployed to address climate change. But if climate change is exceptional, then the lessons of air pollution regulation may be less suitable, and other strategies should be developed instead. The broader understanding of pollution as a phenomenon that exists outside of environmental law shows why multiple responses to the emission of greenhouse gases is preferable to mitigation, adaptation, tolerance, or any other single purported solution to the problem of climate change.