The Actors, Tools, and Processes of Private Environmental Governance

• Pages: 53-72
• Author: Michael P. Vandenbergh,Sarah E. Light,James Salzman

53

Chapter 3

THE ACTORS, TOOLS, AND PROCESSES

OF PRIVATE ENVIRONMENTAL

GOVERNANCE

I.Challenging Traditional Assumptions

Ordinarily, when we think about the traditional model of

environmental law and governance the roles and responsibilities

seem obvious. We know who the regulator is, what tools that

regulator has at its disposal to address environmental challenges,

and the background legal rules that govern how the regulator can

adopt substantive environmental standards. Congress adopts

environmental statutes (subject to the veto authority of the

President), and the EPA sets the specific pollution limits that

factories need to meet. As we will see in this Chapter, though, PEG

upends many of these traditional assumptions. Neither the key

actors, the tools, nor the processes of environmental governance are

obvious. This new model opens the door to new ways for lawyers,

managers, and advocates to solve some of the most persistent

environmental problems.

A.The Traditional Model of Environmental Law and

Governance

In the traditional model, it is clear who is the source and enforcer

of environmental standards: the government. That government actor

could be Congress or a state legislature that passes a statute like the

Clean Air Act, the Clean Water Act, or the National Environmental

Policy Act. In many cases, these statutes require further detail to

become capable of enforcement. So Congress delegates authority to

interpret the statutes to a regulatory agency like the Environmental

Protection Agency (EPA), the Department of Transportation, or the

Department of the Interior. State legislatures do the same,

delegating authority to the equivalent state or local regulatory

agency. These agencies then promulgate more specific environmental

regulations like the New Source Performance Standards under the

Clean Air Act or Corporate Average Fuel Economy (CAFE) standards

for new motor vehicles under the Energy Policy and Conservation

Act. These detailed regulations make clear both to the regulated

parties and the enforcement officials what is required to comply.

The “enforcers” of environmental standards set forth by

legislatures and regulatory agencies are also clear: they are part of

the executive branch. The EPA and its state equivalents typically

54

TOOLS AND CONCEPTS

Pt. I

monitor compliance, conduct civil or criminal investigations, and

have the power to impose fines or enter into consent agreements for

some violations. For the most serious violations, the Department of

Justice and its state equivalent work with the environmental

regulatory agencies to prosecute environmental crimes or engage in

civil environmental enforcement.

Courts also play a part. Both state and federal courts decided

early environmental cases under the common law doctrine of

nuisance. When local landowners contended that nascent industries

like copper smelting plants were belching smoke that harmed their

crops, livestock, and their own health, they filed lawsuits against

those companies, as in the famous 1904 case of Madison v. Ducktown

Sulphur, Copper & Iron Co.

1

Courts could determine damages or

issue injunctions to address these legal claims of environmental

harm. Even the Supreme Court has played the role of environmental

regulator. For example, in 1906 it was called upon to decide an

environmental dispute between states in the case of Missouri v.

Illinois.

2

In that case, the Court had to determine whether to issue

an injunction when the State of Missouri claimed that the City of

Chicago’s dumping of sewage in a river was responsible for an

increase in cases of typhoid fever downstream in St. Louis (it did not

issue the injunction).

The notion of courts as sources of environmental standards is

not merely a historical curiosity. Recently, the common law of

nuisance has seen a resurgence of activity in which cities across the

country have sued fossil fuel firms, seeking damages to fund

resilience and adaptation measures to address the harms of climate

change. Beyond the law of nuisance, in Juliana v. United States, the

plaintiffs have asserted that the U.S. Constitution’s guarantee of life,

liberty, and property requires the government to limit greenhouse

gas emissions more stringently for the benefit of our nation’s youth.

Whether or not individual cases succeed, the fact is that courts

continue to play a role in deciding environmental disputes even

today.

Moving past the question of “who?” in the traditional model of

environmental law and governance, there are background rules that

govern “how?” environmental standards can legitimately be adopted.

For example, if the regulator is Congress, we know that the

Constitution requires legislation—such as the Clean Air Act or the

Clean Water Act—to be adopted in the same form by both chambers

of Congress (bicameralism) and that it must be either signed by the

President (presentment) or both chambers of Congress must vote to

1

83 S.W. 658 (Tenn. 1904).

2

200 U.S. 496 (1906).