Beyond Environmental Markets: or Three Modest Proposals for the Future of Environmental Law

Abstract

Legend has it that the great architect Frank Lloyd Wright was once asked what he would do if he was appointed city planner for New York City. "Blow it up, move fifty miles up the Hudson, and start again," he supposedly harrumphed. The line is usually good for a chuckle, precisely because we all understand that life really doesn't work that way. Most of the time, we have to work with the raw materials that previous generations have bequeathed us, and we are only able to make modest changes that build on what has gone before. Only in fantasy do we get the chance to blow it all up, move fifty miles up the Hudson, and start all over again. In that spirit, I offer three modest proposals for what we might do to improve environmental law in the United States in the next generation. They are: (1) increased use of environmental markets ("cap and trade" or bubble programs) and other incentive-based regulatory instruments; (2) retroactive application of the Chevron decision, which would help to clear out some of the policy underbrush left by overly aggressive past court decisions; and (3) increased use of information production and dissemination as a strategy to stimulate so-called "voluntary" actions to protect the environment.