Chap 2: Environmental Law- A Structural
Overview
Economic
Report of the President
GAO
Lawsuit
Approaches to Regulation:
Assessing the Options - The Economic Report of the President (pp.
133-167)
The 2002 Economic Report of the President devotes an
entire chapter to discussion of institutional mechanisms for
controlling environmental risks. Entitled "Building Institutions for
a Better Environment," Chapter 6 of the report reviews progress in
environmental policy, the government's role in environmental
protection, cost-benefit analysis, and the advantages and
disadvantages of different regulatory strategies. Depicting
environmental policy as having plucked most of the low-hanging
fruit, the report states that "[n]ow that most of the largest and
most glaring environmental problems have been tackled, however, the
gains to be expected from further measures have become less obvious
and more contentious." It notes that as societies become more
affluent demand for environmental protection typically increases,
but it emphasizes the importance of adopting "flexible approaches to
environmental regulation" that "increase the benefits and lower the
costs relative to alternative schemes."
After noting that the Supreme Court rejected the use
of cost-benefit analysis in setting national air quality standards
in the American Trucking decision, the report emphasizes the
importance of cost-benefit analysis in light of "the many competing
needs for public and private expenditures." It then reviews the
advantages of market-based approaches to regulation, such as
tradable permits and fees, and "other flexible approaches,"
including informal markets and tradable performance standards. The
report then seeks to debunk four "myths" about the fairness and
efficacy of flexible approaches before reviewing the successes of
emissions trading under Title IV of the Clean Air Act and tradable
quotas for Alaskan halibut and sablefish. It concludes by deriving
lessons for developing climate change policy, which include using
"sound science," a "flexible, gradual approach" that sets
"reasonable, gradual goals" and gives "technology...and
institutions...time."
Congressional Oversight (pp.
177-182): GAO Lawsuit over Access to Energy Task Force
Records
On February 22, 2002, the U.S. General Accounting
Office (GAO) filed suit in federal district court in Washington,
D.C., against Vice President Richard Cheney seeking a court order to
gain access to records of the National Energy Policy Development
Group, the task force Cheney chaired that prepared the Bush
administration's national energy plan. The GAO is seeking
information concerning what private parties the task force met with
when preparing the plan. The lawsuit, Walker v. Cheney, is
the first time GAO has sued a federal official in connection with
access to records. The GAO initially had been asked to obtain the
information by Democratic Congressmen Henry Waxman and John Dingell
who seek to learn more about how the administration's energy plan
was developed. The lawsuit may provide an important constitutional
test of Congress's right to conduct oversight of the executive
branch in the face of White House efforts to keep information
concerning its actions confidential. Although the GAO has dropped
its request to obtain records concerning the substance of what was
discussed at the meetings, the Vice President has refused to provide
information concerning who the task force met and when, although he
has provided some financial information to GAO.
Another federal district judge has ordered the US
Department of Energy (DOE) to release its records concerning
meetings by DOE officials with private parties in connection with
development of the administration's energy plan. The ruling came in
response to a lawsuit by the Natural Resources Defense Council under
the Freedom of Information Act (FOIA). Because the Vice President's
office is not deemed an "agency" for purposes of FOIA, it cannot be
used to gain access to the records GAO is seeking in its
lawsuit.
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