The Joseph Biden Administration has signaled an interest in ensuring that regulations appropriately benefit vulnerable and disadvantaged communities. Prior presidential administrations have focused on ensuring that regulations are efficient, maximizing the net benefits to society, without considering who benefits or who loses from these policies. Supporters of the current process are concerned that pursuing equity will come at significant cost to efficiency and ultimately leave everyone worse off. This framework—efficiency versus equity—is misguided and counterproductive in many cases. Caroline Cecot's Efficiency and Equity in Regulation, 76 Vand. L. Rev. 361 (2023), from which this abstract is adapted, proposes two rules of thumb for agencies to follow in order to promote both equity and efficiency using their existing authorities and avoid lose-lose scenarios.

This Comment touches on some of the key concerns that Dave Owen's The Negotiable Implementation of Environmental Law raised about equity and transparency in environmental law, and shares a couple of examples that have emerged in the last few months that people are inventing to try to address this.

Black letter law is implemented in countless shades of gray, with interpretation and negotiation at virtually every step of the way. Prof. Dave Owen’s The Negotiable Implementation of Environmental Law digs deep, beyond the obvious, to underscore that negotiation is not a dark art but a necessary skill that deserves more attention and training. He catalogs the importance, prevalence, and pitfalls of negotiation, providing examples of what is negotiable, when and by whom, how it happens and what results, and whether it can be good or bad on the scale of rigid “command and control” versus flimsy “slippage.” Professor Owen’s analysis is thorough and balanced on the “centrality of negotiation” and how it impacts outcomes in the world of standards, permits, cleanup, conservation, and enforcement. He also underscores the value of and need for improving the transparency, effectiveness, and equity of negotiation, particularly in state agencies.

Dave Owen's The Negotiable Implementation of Environmental Law did a nice job of highlighting some of the major statutes that are the backbone of our practice and the launching point for effective negotiation. One of the implications of the article that highlights the axiom “wake up . . . people are negotiating” is to understand that promulgation of the law by regulations is not the end point. Rather, the final product, often a permit, is the product of specific facts, a relevant setting, and the application of external forces and needs, such as environmental justice. The article also addresses and promotes transparency, which always sounds good but does have practical implications. The problem, as Professor Owen wisely points out, is that there isn’t really a repository of settlement documents. But the Comment notes that DOJ has a repository of consent decrees, because all the consent decrees subject to public comment are available.

In theoretical accounts of environmental law, traditional environmental-law education, and much of the discourse of environmental-law implementation, negotiation is absent, except in a few celebrated and seemingly exceptional settings. When scholars and policy advocates do address the roles of negotiation, they tend to default to two competing conceptions. In one—the “command-and-control” view—environmental law is problematically centralized and rigid, and negotiation exists only in exceptional circumstances. In the alternative conception—call it the “slippage” view—the rigid protections exist on paper but not in practice, and environmental-law implementation involves government regulators allowing regulated industries to get away with varying degrees of noncompliance. In this latter view, negotiation is common, but it serves only to decide how far real-world practices can deviate from the law. However, negotiation is a defining feature of environmental law. This Article, which is adapted from Dave Owen, The Negotiable Implementation of Environmental Law, 75 Stan. L. Rev. 137 (2023), uncovers ample anecdotal evidence that negotiation-based systems do not serve the underlying values of environmental law nearly as well as they could or should. It asserts a massive buildout of new infrastructure will probably require navigating many of the negotiation points described in the Article, and argues that if these negotiation points can be navigated efficiently and in ways that produce both better economic outcomes for regulated industries and stronger environmental protections, the nation and the world will benefit.

Choice architecture as defined by Professor Mormann in Climate Choice Architecture is helpful and important, but it is also easy to overestimate its impact. It is not everything. This Comment argues that choice architecture is framing a decision at the point of decisionmaking, presenting a list in a specific way, like the decoy effect, setting defaults. Sometimes, social norms and feedback is choice architecture if presented at the time of making a decision or if presented at the optimal choice opportunity. But Sussman doesn't typically put these in the choice architecture bucket. There are many other psychology-based approaches and understandings that are important, like reward and punishment.

Prof. Felix Mormann’s Climate Choice Architecture provides a comprehensive framework and a masterful summary of the state of knowledge on behavioral nudges as they are applied to environmental outcomes. It does a great job of summarizing the literature and also crosses over from energy into water as well. This Comment supports Professor Mormann's conclusion that nudges can be very powerful instruments for achieving climate goals.