Relative Administrability, Conservatives, and Environmental Regulatory Reform

• Date: 01 August 2018

8-2018 NEWS & ANALYSIS 48 ELR 10733

ARTICLE

Relative Administrability,

Conservatives, and Environmental

Regulatory Reform

Blake Hudson

Blake Hudson is a Professor of Law at the University of Houston Law Center, where his research considers how

property, land use, and natural resources law and policy intersect with environmental and constitutional law.

I. Introduction

Perhaps three things in life are now certain: death, taxes,

and federal environmental regu lation. While the nation has

made great progress on a number of environmental fronts,

the size and cost of the federal environmental regulatory

bureaucracy have come under sharp criticism. Some argue

that the federal government is doing too little and needs to

do more,1 while others frame federal environmental law as

too big, too costly, too intrusive, and too restrictive. If one

accepts these criticisms, then the question becomes: what

is a better way?

One alternat ive policy approa ch—long available, but

underutilized—is based on the straightforward govern-

mental use of line drawing (also known as “geographic

delineations”). ese policies include the creation of devel-

opment buer zones as well as urban growth boundaries

and density/open-space controls that may be utilized to

protect air, water, biodiversity, and other resources targete d

by federal environmental laws. Geographic delineation

policies, for instance, prohibit certain development densi-

ties on one side of a line but not the other, allow individua ls

to only cut trees up to X feet from a watershed, or compel

1. See David W. Case, e Lost Generation: Environmental Regulatory Reform in

the Era of Congressional Abdication, 25 D E. L.  P’ F. 49, 53

(2014).

developers to integrate X acreage of open space into a com-

mercial development.

As discussed below, these policies have very low admin-

istrative costs relative to current federal envi ronmental stat-

utes, which consume vast amounts of economic, human,

and temporal resources. In this way, these policies have

what we can call high “relative administrability.” Even so,

geographic delineation policies remain largely unutilized.

e question is: why? One important reason is the failure

of conservative policymakers and commentators to accept

that prescriptive line-drawing policies actually support a

number of principles valued by conservatives. In fact, geo-

graphic delineations oer great promise as policies that

many, if not most, environmentalists would support but

that would also provide more ecient environmental man-

agement from a conservative perspective— at least more

ecient than relying predominantly on expansive federal

control like we do today.

II. Relative Administrability in

Environmental Law

Despite the wealth of criticism of federal environmen-

tal law, many of the suggestions proered to date have

arguably been too polarized in form. Scholars who dis-

like federal governance simply want environmental regu-

lations to be rolled back and devolved to state and local

governments,2 while scholars in favor of federal environ-

mental governance want more of it.3 ere is a middle

ground, however—geogr aphic delineat ions implemented

primarily through st ate and local government land use law,

supplemented by federal laws that ll gaps. Given its long-

2. See, e.g., Richard L. Revesz, Rehabilitating Interstate Competition: Rethinking

the “Race-to-the-Bottom” Rationale for Federal Environmental Regulation, 67

N.Y.U. L. R. 1210, 1211-13 (1992).

3. See, e.g., Dan L. Gildor, Preserving the Priceless: A Constitutional Amendment

to Empower Congress to Preserve, Protect, and Promote the Environment, 32

E L.Q. 821, 823 (2005).

is Article is adapted from Blake Hudson, Relative Administrability,

Conservatives, and Environmental Regulatory Reform, 68 F. L.

R. 1661 (2016), and is reprinted with permission. Mr. Hudson

presented this Article at Vanderbilt University Law School on March

12, 2018. Although written comments were not produced, the

discussion included oral comments from Michael Butler, CEO of

the Tennessee Wildlife Federation; Robert Martineau, Commissioner

of the Tennessee Department of Environment and Conservation;

and Greer Tidwell, Director of Environmental Management for

Bridgestone Americas.

Copyright © 2018 Environmental Law Institute®, Washington, DC. Reprinted with permission from ELR®, http://www.eli.org, 1-800-433-5120.