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May 14, 2002
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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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