Presentation on theme: "Building Better Energy & Environmental Lawyers Nancy B. Rapoport (with a lot of help from the UHLC energy and environmental faculty members) Dean and Professor."— Presentation transcript:
What’s necessary for proper enforcement of environmental laws? Understanding the legal system. Understanding the business environment. Understanding the underlying science(s).
The air pollution problem in Houston has three related issues. Technical complexity. Scope of the problem – sources. Problems with legal administration & enforcement. Problems with administration and enforcement are what lawyers and law professors are most able to address.
2 major types of enforcement: So-called “command and control” (use of a particular process or technology specified by the regulator) “Market” or “incentive based” (allowing the regulated entity to determine the best way to reduce pollution).
Plusses and minuses of each enforcement mechanism: “Command and control”—more expensive for the regulated community, but easier and cheaper to enforce and administer. “Incentive regulation”—much cheaper for the regulated community, but difficult to administer or enforce. The more complex the regulated system, the more likely the dependence on cooperation or voluntary mechanisms to enforce “incentive regulation.” Voluntary mechanisms may fail under certain circumstances, such as when there is an incentive to cheat (rewards from cheating > penalties if caught).
The Clean Air Act uses both methods of regulation. Houston’s ozone is supposed to be brought into “healthy” levels by state action through the SIP. But having each state determine the best way to reduce pollution is an “incentive system” of enforcement. The EPA does not have a stringent, credible way to require state action. See Victor B. Flatt, A Dirty River Runs Through It (The Failure of Enforcement in the Clean Water Act), 25 B.C. Envt'l Aff. L. Rev. 1 (1997) (empirical analysis).
The Houston ozone problem, which is incredibly complex, must be subject to either extraordinarily expensive monitoring and enforcement OR must depend on voluntary actions. Using either enforcement mechanism alone is not going to solve our problems. The dilemma:
What to do? Recognize legitimacy of the various enforcement theories. Provide resources to get correct inventory of sources (all sources) – work already begun and spurred by NGOs. SIP should have systems that are easily enforceable OR where there is no incentive to cheat. The Texas Houston SIP is problematic on this front, BUT Texas must WANT to have effective controls and regulation AND/OR the Federal government must DEMAND it.
What this means at UHLC: Students are taught about theories of how enforcement and administration works – not just cases. Students are taught that they must understand the issues surrounding the regulated community, government, and affected citizens. We train JD candidates (who will someday be lawyers) and LLM candidates (lawyers who want to focus on issues of energy and environmental law).
THUS: Faculty members with backgrounds in everything from international relations to antitrust and economics. Extensive curriculum in energy and environmental topics. Institute for Energy, Law and Enterprise— sponsored research arm of an overall energy & environmental law program.
New Center for Environmental Interagency Cooperation. First of its kind—run by Prof. Victor Flatt. Will hear hand-picked class. Class will hear from federal, state, and local administrators from all over the country. Focus on problem solving regarding agency procedural enforcement problems.
Truly interdisciplinary: law, business, engineering. Faculty editors working hand-in-hand with student editors to select and edit articles. Hosting and publishing symposia: first one is “Creating Competitive Wholesale Energy Markets.”
Next steps. Greater affiliation with UH: Bauer College of Business. Cullen College of Engineering. Greater affiliation with Shell Center for Sustainability at Rice University. Greater interaction with companies, agencies, citizen groups—UHLC as a way to help research and solve problems (and to train new lawyers to be problem-solvers as well).
Marcilynn Burke Assistant Professor of Law. A.B., International Studies, Univ. of North Carolina-Chapel Hill. J.D., Yale Law School. Courses: Property; Environmental Land Use Law; Land Use; Natural Resources.
Darren Bush Assistant Professor of Law. B.A. (Economics), California State University, San Bernardino. Ph.D. (Economics), University of Utah. J.D., University of Utah. Courses: Antitrust; Regulated Industries; Law & Economics; Administrative Law.
Victor Flatt A.L. O'Quinn Chair in Environmental Law. B.A., magna cum laude, in Chemistry and Mathematics at Vanderbilt University. J.D., Northwestern University School of Law. Courses: Environmental Law; Law of Hazardous Waste; Torts; Administrative Law.
Michelle Michot Foss Executive Director, Institute for Energy, Law & Enterprise, UHLC. B.S. in Biology, Geology Minor, Univ. of Louisiana at Lafayette. M.S., Mineral Economics, Colorado School of Mines. Ph.D., Political Science, Univ. of Houston (with honors).
Sanford E. Gaines Law Foundation Professor of Law. B.A., magna cum laude, Harvard College. J.D., cum laude, Harvard Law School. M.A., East Asian Regional Studies, Harvard University. Courses: Administrative Law; Coastal Zone Management; Environmental Law; International Trade; Torts.
Jacqueline Lang Weaver A.A. White Professor of Law. B.A., Harvard University Ph.C., University of California at Los Angeles. J.D., magna cum laude, University of Houston. Courses: Energy Policy; Environmental Law; Oil and Gas; Property; Public Land Use; Water Law.
Shameless plugs: Victor B. Flatt, The Enron Story and Environmental Policy, 33 Envt’l. L. Rep. (Envt'l. L. Inst.) 10,485, 10,491 (2003), reprinted in ENRON: CORPORATE FIASCOS AND THEIR IMPLICATIONS (Nancy B. Rapoport & Bala G. Dharan, eds.) (Foundation Press 2004) Available on Amazon.com, BN.com and at fine used bookstores everywhere. Victor B. Flatt, Spare The Rod and Spoil The Law: Why The Clean Water Act Has Never Grown Up, 55 Ala. L. Rev. 595 (2004).