Climate change, dead zones, and massive problems in the administrative state: A guide for whittling away

California Law Review

Volumn 98, Issue 1, 2010, Pages 59-120

  Ruhl, J B ^a   Salzman, James ^b,c  

^a FLORIDA STATE UNIVERSITY   (United States)

^b Department of Law   (United States)

^c DUKE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 77952787334     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (416)

1. See Determination of Threatened Status for the Polar Bear, 73 Fed. Reg. 28,212 (May 15, 2008) (to be codified at 50 C.F.R. pt. 17). The agency's decision to list the polar bear was, to say the least, controversial. It followed contentious litigation designed to force the agency to reach a decision, and while the agency did list the species as threatened, it promulgated a special rule, as authorized under section 4(d) of the ESA, that had the effect of limiting the full extent of regulatory protections available under the statute.
2. See Special Rule for the Polar Bear (interim rule), 73 Fed. Reg. 28,306 (May 15, 2008) (to be codified at 50 C.F.R. pt. 17);
3. Special Rule for the Polar Bear (final rule), 73 Fed. Reg. 76,249 (Dec. 16, 2008) (to be codified at 50 C.F.R. pt. 17). Both the listing decision and the special rule have been challenged in litigation that remains pending at the time of this writing. For background on these and related events,
4. see J.B. Ruhl, Climate Change and the Endangered Species Act: Building Bridges to a No-Analog Future, 39
5. ENVTL. L. REP. 10, 735, 10, 744-745 (2009).
6. At a press conference announcing the polar bear listing, Secretary of the Interior Dirk Kempthorne warned that "[w]hile the legal standards under the ESA compel me to list the polar bear as threatened, I want to make clear that this listing will not stop global climate change or prevent any sea ice from melting." News Release, U.S. Department of the Interior, Secretary Kempthorne Announces Decision to Protect Polar Bears under Endangered Species Act (May 14, 2008), available at http://www.doi.gov/news/08-News-Releases/ 080514a.html. Subsequently, in announcing his decision not to alter the previous administration's decision regarding the status of the polar bear and level of protection it will receive under the ESA, Interior Secretary Salazar proclaimed that "the Endangered Species Act is not the proper mechanism for controlling our nation's carbon emissions."
7. News Release, U.S. Fish & Wildlife Service, Salazar Retains Conservation Rule for Polar Bears, Underlines Need for Comprehensive Energy and Climate Legislation (May 8, 2009), available at http://www.fws.gov/news/ NewsReleases/showNews.cfin? newsId=20FB90B6-A188-DB01-O4788E0892D91701. Climate change has been described as "a major threat to the survival of species and integrity of ecosystems world-wide."
8. Philip E. Hulme, Adapting to climate change: is there scope for ecological management in the face of a global threat?, 42 J. APPLIED ECOLOGY 784, 784 (2005).
9. In its 2007 Synthesis Report, the Intergovernmental Panel on Climate Change predicted that "[t]here is medium confidence that approximately 20 to 30% of species assessed so far are likely to be at increased risk of extinction if increases in global average warming exceed 1.5 to 2.50°C," and that if warming "exceeds about 3.50°C, model projections suggest significant extinctions (40 to 70% species assessed) around the globe." INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, CLIMATE CHANGE 2007: SUMMARY FOR POLICYMAKERS 13-14 (2007), available at http://www.ipcc.ch/pdf/ assessment-report/ar4/syr/ ar4-syr-spm.pdf. For additional discussion of the climate change problem,
10. see infra Parts II-III.
11. Florida, no stranger to sprawl, defines "urban sprawl" by regulation as urban development or uses which are located in predominantly rural areas, or rural areas interspersed with generally low-intensity or low-density urban uses. . . . Urban sprawl is typically manifested in one or more of the following land use or development patterns: Leapfrog or scattered development; ribbon or strip commercial or other development; or large expanses of predominantly low-intensity, low-density, or singleuse development. FLA. ADMIN. CODE ANN. r. 9J-5.003(134). There is ongoing debate about the pros and cons of this particular form of suburban development and its antidote, "smart growth."
12. See ROBERT BRUEGMANN, SPRAWL: A COMPACT HISTORY (Univ. Chi. Press 2005);
13. JULIAN CONRAD JUERGENSMEYER & THOMAS E. ROBERTS, LAND USE PLANNING AND DEVELOPMENT REGULATION LAW § 9.1B at 475-79 (Thomson-West Practitioner Treatise Series 2d ed. 2007);
14. Nicole Stelle Garnett, Save the Cities, Stop the Suburbs?, 116 YALE L.J. 598 (2007). For additional discussion of sprawl, see infra Parts II-III.
15. According to the U.S. Geological Survey,[e]xcessive nutrients, in particular nitrogen and phosphorus, have resulted in the growth of large amounts of algae that decay and consume oxygen, thereby causing a zone of low dissolved oxygen or 'hypoxic zone' in the Northern Gulf of Mexico. This can stress and cause death in bottom-dwelling organisms, threatening the economic and ecological health of one of the nation's largest and most productive fisheries. U.S. Geological Survey, Mississippi River Basin and Gulf of Mexico Hypoxia, http://water.usgs.gov/nawqa/spaiTow/gulf-findings/hypoxia.html (last visited Feb. 12, 2008). The most definitive study of the causes concludes that runoff from agricultural sources contributes 70 percent of the excess nutrients.
16. See Richard B. Alexander et al., Differences in Phosphorous and Nitrogen Delivery to the Gulf of Mexico from the Mississippi River Basin, 42 ENVTL. Sci. & TECH. 822, 822 (2007), available at http://pubs.acs.org/doi/pdf/10.1021/ es0716103?cookieSet=l. Hypoxia from agricultural runoff and urban sewage is expanding exponentially throughout the world as well, affecting 400 estuarine systems covering over 245, 000 square kilometers.
17. See Robert J. Diaz & Rutger Rosenberg, Spreading Dead Zones and Consequences for Marine Ecosystems, 321 Sci. 926, 926 (2008);
18. see generally MINDY SELMAN ET AL., EUTROPHICATION AND HYPOXIA IN COASTAL AREAS: A GLOBAL ASSESSMENT OF THE STATE OF KNOWLEDGE (2008), available at http://pdf.wri.org/eutrophication-and-hypoxia-in-coastal-areas.pdf (reviewing instances and the science of estuarine eutrophication from around the world). For additional discussion of agricultural runoff pollution and Gulf hypoxia
19. , see infra Parts II-III and V.
20. -549 U.S. 497 (2007).
21. See Control of Emissions from New Highway Vehicles and Engines, 68 Fed. Reg. 52, 922-02, 52, 922 (Sept. 8, 2003). The EPA dismissed the petition on the broad basis that global climate change is so complicated that either Congress did not provide for greenhouse gas emissions to be subject matter for the Clean Air Act or, if Congress did so provide, the agency properly identified conflicting policy concerns as a basis for deciding not to regulate emissions.
22. See id. at 52, 929-31. For concise yet thorough summaries of the rulemaking petition, the EPA's decision, lower court proceedings, the Supreme Court's majority and dissenting opinions, and the likely impact of the case,
23. see Arnold W. Reitze Jr., Controlling Greenhouse Gas Emissions From Mobile Sources-Massachusetts v. EPA, 37 ENVTL. L. REP. 10535 (2007);
24. Michael Sugar, Comment, Massachusetts v. Environmental Protection Agency, 31 HARV. ENVTL. L. REV. 531 (2007).
25. The Clean Air Act defines "air pollutant" in sweeping terms to include "any air pollution agent... including any physical, chemical, [or] biological... substance or matter which is emitted into or otherwise enters the ambient air." 42 U.S.C. § 7602(g) (2000). The Court found that "greenhouse gases fit well within [this] capacious definition." Massachusetts v. EPA, 549 U.S. 497, 532 (2007).
26. Mass. v. EPA, 549 U.S. at 523.
27. Id. at 524.
28. See Mass v. EPA, 549 U.S. at 506 (quoting 42 U.S.C. § 7602(h)). Rather, the Court concluded, under the clear terms of the Clean Air Act, the EPA can avoid taking further action to regulate carbon emissions from motor vehicles "only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do." Id. at 533. As its only example of a "reasonable explanation," the Court suggested that the EPA might find "the scientific uncertainty is so profound that it precludes EPA from making a reasoned judgment as to whether greenhouse gases contribute to global warming."
29. Id. at 534.
30. Yet having previously observed that "[r]espected scientists" believe greenhouse gas emissions do contribute to climate change, id. at 504, the Court seems to have left the EPA little wiggle room. See Jonathan Z. Cannon, The Significance of Massachusetts v. EPA, 93 VA. L. REV. IN BRIEF 53, 59 (2007), http://www.virginialawreview.org/ inbrief/2007/05/21/cannon.pdf ("The Court's opinion seems to leave EPA little room in dealing with climate change.");
31. Reitze, supra note 6, at 10538 ("[T]he Court's opinion pushes EPA to find that GHGs need to be regulated."). Nevertheless, as a matter of judicial restraint the Court was silent on how the EPA might go about fulfilling the decision, observing simply that "[w]e need not and do not reach the question whether on remand EPA must make an endangerment finding, or whether policy concerns can inform EPA's actions in the event that it makes such a finding."
32. Mass. v. EPA, 549 U.S. at 534-35.
33. Mass. v. EPA, 549 U.S. at 533.
34. The agency has yet to do this. In July 2008, the EPA announced it would delay its decision on endangerment in order to solicit comments on an advance notice of proposed rulemaking from the public and other federal agencies and state and local governments on options for how to proceed.
35. See Regulating Greenhouse Gas Emissions Under the Clean Air Act, 73 Fed. Reg. 44, 354 (July 30, 2008) [hereinafter Regulating Greenhouse Gas].
36. EPA later found that carbon emissions do pose an endangerment. See Endangerment and Cause or Contribute Findings for Greenhouse Gases Under Section 202(a) of the Clear Air Act, 74 Fed. Reg. 66, 496 (Dec. 15, 2009). The agency also proposed rules to regulate greenhouse gas emissions from large industrial sources in October 2009.
37. See Prevention of Significant Deterioration and Title V Greenhouse Gas Tailoring Rule, 74 Fed. Reg. 55, 291 (Oct. 27, 2009). No further regulatory actions have taken place as of this writing.
38. See J.B. Ruhl, Climate Change and the Endangered Species Act: Building Bridges to the No-Analog Future, 88 B.U. L. REV. 1 (2008) (describing ecological effects that climate change will cause and their implications for administration of the ESA).
39. See Trisha L. Smith et al., Climate Change in SEC Disclosures: Charting a Course Through Murky Waters Without a Compass, in CLIMATE CHANGE: LITIGATION, REGULATION, AND RISK 21 (2008). Several institutional investors recently petitioned the Securities and Exchange Commission to require companies to disclose more information and analysis of the financial risks they face from climate change effects and the regulation of greenhouse gas emissions.
40. See California Public Employees Retirement System et al., Petition for Interpretive Guidance on Climate Change Disclosure (2007), available at http://www.sec.gov/rules/petitions/ 2007/petn4-547.pdf.
41. Similarly, in 2008 the Attorney General of New York entered into agreements with several energy companies requiring them to disclose increased financial, regulatory, and litigation risks likely to be triggered by the impact of climate change on their plans to construct coal-fired power plants. See John Herzfeld, Xcel Energy Agrees to Disclosure Plan On Climate-Related Risk for Shareholders, DAILY ENV'T (BNA), Aug. 28, 2008, at A-8;
42. see, e.g., In re Dynegy Inc., AOD 08-132 (N.Y. Att'y Gen'l 2008), available at http://www.oag.state.ny.us/media-center/2008/oct/dynegy-aod.pdf.
43. See Ctr. for Biological Diversity v. Nat'l Highway Traffic Safety Admin., 508 F.3d 508, 548-558 (9th Cir. 2007) (faulting the National Highway Traffic Safety Administration for failing to take climate change effects into account when promulgating fuel economy standards for light trucks and SUVs).
44. For summaries of proposed and adopted state and local climate change measures, see John C Dembach & Seema M. Kakade, Climate Change Law: An Introduction, 29 ENERGY L.J. 1, 15-20 (2008);
45. David Hodas, State Initiatives, in GLOBAL CLIMATE CHANGE & U.S. LAW, 343369 (Michael B. Gerrard ed., ABA Press 2007);
46. J.R. DeShazo and Jody Freeman, Timing and Form of Federal Regulation: The Case of Climate Change, 155 U. PA. L. REV. 1499, 1521-30 (2007);
47. Stephen C Jones & Paul R. McIntyre, Filling the Vacuum: State and Regional Climate Change Initiatives, 38 ENV'T REP. (BNA) 1640 passim (2007);
48. PEW CENTER ON GLOBAL CLIMATE CHANGE, A LOOK AT EMISSIONS TARGETS, http://www.pewclimate.org/ what-s-being-done/targets (last visited Feb. 12, 2008). Many observers believe the measures are unrealistic.
49. See, e.g., Robert N. Stavins, Free GHG Cuts: Too Good to be True?, ENVTL. F., MayJune 2007, at 16 (asserting that the cost estimates California is providing for its greenhouse gas reduction benchmark goals are wildly low).
50. In his comprehensive study of the problem, Halting Hypoxia, Jay Landers concludes that "[t]o address hypoxia in the Gulf of Mexico, the enormous amounts of nutrient entering the water body via the Mississippi River must be reduced. Achieving this goal will require an array of actions and strategies across a broad swath of America's heartland." Jay Landers, Halting Hypoxia, Civ. ENGINEERING, June 2008, at 54. For a legal analysis of agricultural nonpoint source pollution,
51. see J.B. Ruhl, Farms, Their Environmental Harms, and Environmental Law, 27 ECOLOGY L.Q. 263, 287-91 (2000) (examining the failure of legal measures to address agricultural runoff).
52. As Robert Bruegmann concludes in his survey of sprawl's history and the efforts to arrest it, "a great many people have concluded... that sprawl is inevitable and that efforts to stop it are doomed." BRUEGMANN, supra note 3, at 220.
53. For legal discussions of sprawl's intractability, see William W. Buzbee, Urban Sprawl, Federalism, and the Problem of Institutional Complexity, 68 FORDHAM L. REV. 57, 64 (1999);
54. Henry R. Richmond, Sprawl and Its Enemies: Why the Enemies Are Losing, 34 CONN. L. REV. 539 (2001). For the argument against the so-called "inevitability theory" of sprawl,
55. see Michael Lewyn, Sprawl in Europe and America (Aug. 1, 2008), available at http://ssrn.com/abstract=l194862. 17.1, p 147 and 17.2, 150.
56. See Lesley Wexler, The Non-Legal Role of International Human Rights Law in Addressing Immigration, 2007 U. CHI. LEGAL F. 359 (2007) (examining the causes and human rights implications of the "recent migration explosion").
57. One analysis concluded that "it is hard to overstate the extent of this reversal in fortunes," Securitisation-When it Goes Wrong, ECONOMIST, Sept 20, 2007, at 1, and another suggested that "the regulators are trying to figure out how to work around it, but the Hill is going to be in for one big surprise."
58. Gretchen Morgenson, Crisis Looms in Market for Mortgages, N. Y. TIMES, Mar. 11, 2007, at 1 (quoting Josh Rosner). In a candid evaluation of how the problem reached dimensions that outstripped the capacity of regulatory agencies, a former chairman of the Securities and Exchange Commission observed that "as the markets grew larger and more complex-in scope and in products offered-the commission failed to keep pace."
59. Julie Hirschfield Davis, Former SEC Chief Says Agency Dropped Ball, USA TODAY, Oct. 17, 2008, at 5B (quoting Arthur Levitt). Among the gathering swirl of theories from pundits, the popular press, and academics, a careful account of the anatomy of the rise and fall of the American subprime mortgage market and its fallout around the globe comes from a Korean financial analyst, Man Cho, who meticulously surveys the complex set of "key economic and institutional factors that boosted the rise of the market, and those that contributed to the abrupt fall in 2007."
60. Man Cho, Subprime Mortgage Market: Rise, Fall, and Lessons for Korea 3 (KDI Sch. of Pub. Policy & Mgmt. Paper No. 08-08, 2008), available at http://ssrn.com/abstract=l 132976. For a probing examination of the complexity of the causes and the proposed solutions, see John A. Tatom, The US. Foreclosure Crisis: A Two-Pronged Assault on the US. Economy (Networks Fin. Inst., Working Paper No. 2008-WP-10, 2008), available at http://ssrn.com/abstract=l194975.
61. For discussion of the scholarship on these questions, see infra Part I.A.
62. Scholars of Dynamic Federalism theory reject the "minimal overlap" model in which there is a "particular allocation of at least primary regulatory authority between the states and the federal government," replacing it with one "in which multiple levels of government interact in the regulatory process." Kirsten H. Engel, Harnessing the Benefits of Dynamic Federalism in Environmental Law, 56 EMORY L.J. 159, 161 (2006). More detail on Dynamic Federalism theory is presented infra Part IV.B.
63. New Governance theory turns "away from the familiar model of command-style, fixedrule regulation by administrative fiat, and toward a new model of collaborative, multi-party, multilevel, adaptive, problem-solving" governance. Bradley C. Karkkainen, "New Governance" in Legal Thought and in the World: Some Splitting as Antidote to Overzealous Lumping, 89 MINN. L. REV. 471, 473 (2004). More detail on New Governance theory is presented infra Part IV.B.
64. Transgovernmental Networks theory emphasizes the role of "networks of similarlysituated technocrats" who work in many different governance units, and "conceive[s] of lawmaking as an organic enterprise, harnessing the technical expertise of bureaucrats who do not possess heady titles but nonetheless intimately understand the practical exigencies of their particular issue areas." Janet Koven Levit, A Bottom-Up Approach to International Lawmaking: The Tale of Three Trade Finance Instruments, 30 YALE J. INT'L L. 125, 182 (2005). More detail on Transgovernmental Network theory is presented infra Part IV.B.
65. Broad legislative delegation of authority to administrative agencies is a long-practiced component of governance in the modem regulatory state which we take as a given, leaving the normative question of whether the practice is consistent with constitutional separation of powers and theories of legislative responsibility outside the scope of this Article. For examples of the vast body of commentary on the ubiquity and inevitability of legislative delegations,
66. see Steven P. Croley, Theories of Regulation: Incorporating the Administrative Process, 98 COLUM. L. REV. 1 (1998);
67. For examples of contrasting views of the propriety of legislative delegations, compare David Schoenbrod, Delegation and Democracy: A Reply to My Critics, 20 CARDOZO L. REV. 731 (1999)
68. (arguing against delegation), with Jerry Mashaw, Prodelegation: Why Administrators Should Make Political Decisions, 1 J.L. ECON. & ORG. 81 (1985) (arguing in favor of delegation).
69. See, e.g., Robert L. Glicksman, Balancing Mandate and Discretion in the Institutional Design of Federal Climate Change Policy, 102 Nw. U. L. REV. COLLOQUY 196, 197 (2008) ("Congress should vest more discretion in agencies to decide how to address climate change than it does on the question of whether to do so.").
70. As Don Elliott describes the fate of agencies "tasked with solving emerging problems without legislative guidance," they must "adapt[] their statutes creatively to emerging problems by seizing on bits and pieces of language or legislative history." E. Donald Elliott, Portage Strategies for Adapting Environmental Law and Policy During a Logjam Era, 17 N. Y.U. ENVTL. L.J. 24, 25 (2008).
71. "Centralized federalism suggests that the federal government should address environmental problems on its own. Devolved federalism argues that environmental decisions are best made at the state and local level. Dual federalism posits that each level of government should have distinct and separate approaches to environmental regulation."
72. Benjamin K. Sovacool, The Best of Both Worlds: Environmental Federalism and the Need for Federal Action on Renewable Energy and Climate Change, 27 STAN. ENVTL. L.J. 397, 405 (2008). "[C]ooperative federalism is a system of shared authority between federal and state governments" in which "state programs adopt environmental standards at least as stringent as the federal program. . . . [and] the federal government retains oversight authority."
73. David E. Adelman & Kirsten H. Engel, Adaptive Federalism: The Case Against Reallocating Environmental Regulatory Authority, 92 MINN. L. REV. 1796, 1811-12 (2008). Scholarly and judicial discussion of these different strands of federalism theory is legion. For a thoughtful survey of "the ongoing tension between the oftvoiced judicial and scholarly preference for distinctly delineated federal and state roles and the reality of overlapping federal and state roles that one finds [in] federalism's central debates,"
74. see William W. Buzbee, Asymmetrical Regulation: Risk, Preemption, and the Floor/Ceiling Distinction, 82 N. Y.U. L. REV. 1547, 1551 (2007).
75. William A. Brock & Stephen R. Carpenter, Panaceas and Diversification of Environmental Policy, 104 PROC. NAT'L ACAD, OF SCI. 15206, 15206 (2007). For more on policy panaceas,
76. see Elinor Ostrom, A Diagnostic Approach for Going Beyond Panaceas, 104 PROC. NAT'L ACAD, OF SCI. 15181 (2007).
77. Henry N. Butler & Jonathan R. Macey, Externalities and the Matching Principle: The Case for Reallocating Environmental Regulatory Authority, 14 YALE L. & POL'Y REV. 23, 53 (1996).
78. See, e.g, Buzbee, supra note 18, at 106-07 nn.202, 205;
79. Daniel C. Esty, Good Governance at the Supranational Scale: Globalizing Administrative Law, 115 YALE L.J. 1490, 1493 (2006);
80. Matthew D. Fortney, Devolving Control Over Mildly Contaminated Propee Local Cleanup Program, 100 Nw. U. L. REV. 1863, 1897-98 (2006).
81. Compare Jonathan B. Wiener, Think Globally, Act Globally: The Limits l Climate Policies, 155 U. PA. L. REV. 1961, 1962 (2007) ("subnational state-level action is not the best way to combat global climate change"),
82. with Kirsten H. Engel, Mitigating Global Climate Change in the United States: A Regional Approach, 14 N.Y.U. ENVTL. L.J. 54 (2005) (outlining means of implementing a "regional interstate cooperative approach"),
83. with Hart M. Osofsky & Janet Koven Levit, The Scale of Networks?: Local Climate Change Coalitions, 8 CHI. J. INT'L L. 409 (2008) (arguing the advantages of a local jurisdiction "bottom-up networking" approach).
84. Some are of two minds, hoping for more federal regulation but recognizing the importance of local, state, and regional regulation as, at the very least, catalysts for eventual federal regulation, if not effective in their own right. See Randall S. Abate, Kyoto or Not, Here We Come: The Promise and Perils of the Piecemeal Approach to Climate Change Regulation in the United States, 15 CORNELL J.L. & PUB. POL'Y, 369, 401 (2006) (concluding that "[s]tate, regional, and local climate change initiatives may be subject to criticism, but in light of the current federal regime, such criticism may be unduly harsh.");
85. Stephen C. Jones & Paul R. McIntyre, Filling the Vacuum: State and Regional Climate Change Initiatives, 30 ENV'T REP. (BNA) 1640 (2007) (comparing the paucity of federal initiatives to date with the proliferation of state and regional measures). Others reject the state catalyst theory, arguing it will lead ultimately to a less effective federal response.
86. See Cary Coglianese & Jocelyn D'Ambrosio, Policymaking under Pressure: The Perils of Incremental Responses to Climate Change, 40 CONN. L. REV. 1411 (2008);
87. Benjamin K. Sovacool & Christopher Cooper, The Hidden Cost of State Renewable Portfolio Standards (RPS), 15 BUFF. ENVTL. L.J. 1 (2008). And yet others argue against federal preemption of state and local initiatives and in favor of a "cooperative federalism" approach under which federal legislation sets a preemptive "floor" of greenhouse gas emission standards above which states are free to regulate.
88. See WILLIAM ANDREEN ET AL., CENTER FOR PROGRESSIVE REFORM, COOPERATIVE FEDERALISM AND CLIMATE CHANGE: WHY FEDERAL, STATE, AND LOCAL GOVERNMENTS MUST CONTINUE TO PARTNER (2008), available at www.progressivereform.org;
89. Robert L. Glicksman & Richard E. Levy, A Collective Action Perspective on Ceiling Preemption by Federal Environmental Regulation: The Case of Global Climate Change, 102 Nw. U. L. REV. 579 (2008);
90. Thomas D. Peterson et al., Developing a Comprehensive Approach to Climate Change Policy in the United States that Fully Integrates Levels of Government and Economic Sectors, 26 VA. ENVTL. L.J. 227 (2008).
91. For background on horizontal federalism, or "federalism without Washington," and the cross-jurisdiction coordination challenges it presents, see Ann O'M. Bowman, Horizontal Federalism: Exploring Interstate Interactions, 14 J. PUB. ADMIN. RES. & THEORY 535 (2004);
92. Allan Erbsen, Horizontal Federalism, 93 MINN. L. REV. 493 (2008);
93. Noah D. Hall, Toward a New Horizontal Federalism: Interstate Water Management in the Great Lakes Region, 77 U. COLO. L. REV. 405 (2006).
94. See Hari M. Osofsky, Is Climate Change "International": Litigation's "Diagonal" Regulatory Role, 49 VA. J. INT'L L. 585 (2009) (suggesting greater emphasis on connections between governance institutions at different scales).
95. We use case studies of multiagency water management efforts in California (known as CalFed) and the Chesapeake Bay to demonstrate this effect in Part V, infra. Our focus is on collaboration primarily between numerous public agencies rather man between public agencies and private stakeholders. For one of the seminal discussions of public-private collaboration as a regulatory strategy,
96. see Jody Freeman, Collaborative Governance in the Administrative State, 45 UCLA L. REV. 1 (1997).
97. See also Eric W. Orts & Cary Coglianese, Debate: Collaborative Environmental Law: Pro and Con, 156 U. PA. L. REV. PENNUMBRA 289 (2007) (a pointcounterpoint debate over public-private collaborative regulation).
98. A recent example is the collapse of the CalFed multiagency collaborative process for water resources planning in the Bay-Delta area of California. See Dave Owen, Law, Environmental Dynamism. Reliability: The Rise and Fall of CALFED, 37 ENVTL. L. 1145 (2007).
99. See William W. Buzbee, Recognizing the Regulatory Commons, 89 IOWA L. REV. 1 (2003).
100. See Jody Freeman & Daniel A. Farber, Modular Environmental Regulation, 54 DUKE L.J. 795 (2005) (reviewing different proposed approaches).
101. See, e.g., CASS R. SUNSTEIN, THE COST-BENEFIT STATE: THE FUTURE OF REGULATORY PROTECTION (2002). For a comprehensive critique of cost-benefit analysis,
102. see Sidney A. Shapiro & Christopher H. Schroeder, Beyond Cost-Benefit Analysis: A Pragmatic Reorientation, 32 HARV. ENVTL. L. REV. 433 (2008).
103. See, e.g., Freeman & Farber, supra note 38.
104. See, e.g., Robert Baldwin & Julia Black, Really Responsive Regulation, 71 MOD. L. REV. 59 (2008) (suggesting regulatory strategies that incorporate factors such as cognitive frameworks of regulated firms).
105. Professor Bill Buzbee's theory of the regulatory commons, with its attention to scale of sources and effects for complex regulatory problems, is a notable exception. See Buzbee, supra note 28, at 604-06.
106. Climate change has, in particular, motivated increased attention to scalar properties of problems as a driver of regulatory design. See Robin Kundis Craig, Climate Change, Regulatory Fragmentation, and Water Triage, 79 U. COLO. L. REV. 825, 898-903 (2008) (using Buzbee's model to examine climate change, among other factors, as a driver of multiscalar regulatory fragmentation in coastal and marine ecosystem contexts);
107. Hari M. Osofsky, The Geography of Climate Change Litigation: Implications for Transnational Regulatory Governance, 83 WASH. U. L.Q. 1789, 1791-95 (2005) (using Buzbee's model to identify an array of scalar mismatches confounding efforts to regulate climate change causes). Our purpose is to advance this line of thinking to a more formal model of how the spatial and temporal scales of cumulative effects problems operate to confound regulatory strategy, and how best to respond.
108. There is no fixed model of a "wicked" problem and no final outcome to solving the problem short of running out of time or resources. See Donald Ludwig, The Era of Management Is Over, 4 ECOSYSTEMS 758 (2001).
109. The classic discussion is found in Horst W.J. Rittel & Melvin M. Webber, Dilemmas in a General Theory of Planning, 4 POL'Y SCI. 155, 160-67 (1973).
110. See, e.g., Richard J. Lazarus, Super Wicked Problems and Climate Change: Restraining the Present to Liberate the Future, 94 CORNELL L. REV. 1153 (2009) (discussing climate change as a wicked problem for environmental lawmaking).
111. See Charles E. Lindblom, The Science of "Muddling Through," 19 PUB. ADMIN. REV. 79 (1959) [hereinafter Muddling Through];
112. Charles E. Lindblom, Still Muddling, Not Yet Through, 39 PUB. ADMIN. L. REV. 517 (1979). Lindblom critiqued what he called the "rational comprehensive method" of public administration, offering in its place a model of incremental policy making focused on "continually building out from the current situation, step-by-step and by small degrees."
113. Lindblom, Muddling Through, supra, at 81.
114. During its first twenty years, Muddling Through had "been cited, re-cited, ex-cited, mal-cited, and well-cited," to the point that public administration academics and professionals considered the article's impact on public policy and administration to be "enormous." Editorial, Here Comes Tomorrow, 39 PUB. ADMIN. REV. 509, 509 (1979) (journal editorial introducing a symposium issue on the paper). Yet Lindblom referred to "complex problems" repeatedly-over thirty times in his two primary articles- without ever defining what makes a problem complex.
115. See, e.g., A. Dan Tarlock, Is There A There There in Environmental Law?, 19 J. LAND USE & ENVTL. L. 213, 253-254 (2004) ("environmental law will for the foreseeable future be a messy process of adapting the contingencies and limitations of science to 'wicked' problems informed by rebuttable principles.").
116. 2 and 1/4 of all NO, come from electric power generation that relies on burning fossil fuels, like coal. Acid rain occurs when these gases react in the atmosphere with water, oxygen, and other chemicals to form variousacidic compounds. The result is a mild solution of sulfuric acid and nitric acid. When sulfur dioxide and nitrogen oxides are released from power plants and other sources, prevailing winds blow these compounds across state and national borders, sometimes over hundreds of miles. U.S. Environmental Protection Agency, What Is Acid Rain?, http://www.epa.gov/acidrain/what/ index.html (last visited Apr. 23, 2008).
117. U.S. ENVIRONMENTAL PROTECTION AGENCY, ACID RAIN PROGRAM: 2004 PROGRESS REPORT 3 (2005).
118. Id. at 4.
119. See id. at 6-7.
120. See Jennifer Yelin-Kefer, Warming Up to an International Greenhouse Gas Market: Lessons from the U.S. Acid Rain Experience, 20 STAN. ENVTL. L.J. 221, 243 (2001) (discussing the strong preexisting relationships and common interests of the domestic utilities subject to the Acid Rain Program).
121. See Joseph Goffman, Title IV of the Clean Air Act: Lessons for Success of the Acid Rain Emissions Trading Program, 14 PENN ST. ENVTL. L. REV. 177 (2006).
122. For an overview of the program's structure and operation, see Yelin-Kefer, supra note 51, at 234-241
123. As Bruegmann observes, "When it comes to setting public policy about anything as complex as sprawl ... the 'solution' to any given problem depends on the vantage point of the person doing the proposing." BRUEGMANN, supra note 3, at 222.
124. Thomas G. Pelham, A Historical Perspective for Evaluating Florida's Evolving Growth Management Process, in GROWTH MANAGEMENT IN FLORIDA: PLANNING FOR PARADISE 7, 17 (Timothy S. Chapin et al., eds., Ashgate 2008). A similar "leapfrog" effect was induced by growth boundaries the city of Seattle imposed.
125. See Nancy B. Grimm, Global Change and the Ecology of Cities, 319 Sci. 756 (2008).
126. BRUEGMANN, supra note 3, at 96.
127. See Yelin-Kefer, supra note 51, at 235-39.
128. 2 Allowance Trading, 20 CHOICES 53, 53 (2005).
129. For a thorough comparison of the two problems, see Yelin-Kefer, supra note 51, passim.
130. This causal chain as well as other primary and secondary drivers, both natural and anthropogenic, are covered in INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, SUMMARY FOR POLICYMAKERS, CLIMATE CHANGE 2007: THE PHYSICAL SCIENCE BASIS, CONTRIBUTION OF WORKING GROUP I TO THE FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 10-17 (2007) [hereinafter IPCC SUMMARY], available at http://www.ipcc.ch/pdf/assessment-report/ar4/wg l/ar4-wg 1-spm.pdf.
131. See INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE, SUMMARY FOR POLICYMAKERS, CLIMATE CHANGE 2007: IMPACTS, ADAPTATION AND VULNERABILITY, CONTRIBUTION OF WORKING GROUP II TO THE FOURTH ASSESSMENT REPORT OF THE INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE 19 (2007), available at http://www.ipcc.ch/pdf/assessment- report/ar4/wg2/ar4-wg2-spm.pdf ("Past emissions are estimated to involve some unavoidable warming . . . even if atmospheric greenhouse gas concentrations remain at 2000 levels");
132. V. Ramanathan & Y. Feng, On Avoiding Dangerous Anthropogenic Interference with the Climate System: Formidable Challenges Ahead, 105 PROC. OF THE NAT'L ACAD. OF SCI. 14245 (2008) (estimating committed warming of 2.40°C even if greenhouse gas concentrations are held to 2005 levels);
133. Susan Solomon et al., Irreversible Climate Change Due to Carbon Dioxide Emissions, 106 PROC. OF THE NAT'L ACAD. OF SCI. 1704 (2009) (estimating a thousand-year committed warming effect).
134. For an in-depth examination of this lag effect and the resistance it is likely to generate against costly policy measures that may take decades to produce results, see Eric Biber, The Sting of the Long Tail: Climate Change, Backlash and the Problem of Delayed Harm (UC Berkeley Public Law Research Paper No. 1292529, 2008), available at http://papers.ssm.com/sol3/papers. cfm?abstract-id=1292529.
135. See U.S. CLIMATE CHANGE SCI. PROGRAM, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION, THE FIRST STATE OF THE CARBON CYCLE REPORT (SOCCR): THE NORTH AMERICAN CARBON BUDGET AND IMPLICATIONS FOR THE GLOBAL CARBON CYCLE 5-9 (2007).
136. See, e.g., U.S. CLIMATE CHANGE SCI. PROGRAM, THRESHOLDS OF CLIMATE CHANGE IN ECOSYSTEMS (2009) (examining numerous positive feedback properties leading to nonlinear thresholds in climate change dynamics);
137. Gordon B. Bonan, Forests and Climate Change: Forcings, Feedbacks, and the Climate Benefits of Forests, 320 SCI. 1444 (2008) (explaining the complex and nonlinear forest-climate interactions);
138. I. Eisenman & J.S. Wettlaufer, Nonlinear Threshold Behavior During the Loss of Arctic Sea Ice, 106 PROC. OF THE NAT'L ACAD. OF SCI. 28 (2009) (describing the nonlinear "tipping points" in the ice-albedo feedback effect);
139. Jerome Gaillardet & Albert Galy, Himalaya-Carbon Sink or Source?, 320 SCI. 1727 (2008) (explaining the uncertainties of the sinks and sources of the carbon geological cycle);
140. Steven W. Running, Ecosystem Disturbance, Carbon, and Climate, 321 SCI. 652 (2008) (explaining the uncertainties of ecological sinks and sources such as fires and insect epidemics). Dust, pollutant haze, and other aerosols in the atmosphere, for example, deflect incoming solar radiation and thus have a cooling effect.
141. See Richard A. Kerr, Another Global Warming Icon Comes Under Attack, 317 SCI. 28, 28 (2007) (explaining that because "[a]erosols cool the planet by reflecting away sunlight and increasing the reflectivity of clouds," climate change models can vary widely depending on assumptions about aerosol levels). As temperatures rise on average, moreover, other positive and negative feedback effects are triggered that could amplify or impede further warming. Melting tundra, for example, releases more greenhouse gases, and researchers have found this effect is far exceeding expected levels because of its feedback properties.
142. See Katey M. Walter et al., Methane Bubbling from Siberian Thaw Lakes as a Positive Feedback to Climate Warming, 443 NATURE 71, 71 (2006). The effect leads to a positive feedback loop in the following manner: as the greenhouse gases are released, they contribute to warming that melts the tundra faster, which releases more greenhouse gases more rapidly, and so on.
143. See Katey M. Walter et al., Methane Bubbling from Northern Lakes: Present and Future Contributions to the Global Methane Budget, 365 PHIL. TRANSACTIONS OF THE ROYAL SOC'Y A 1657, 1671 (2007).
144. 4 During the Last Deglaciation, 318 SCI. 633, 633 (2007).
145. Ecologists believe these and other transformations in the tundra "could be a one-way ticket." John Bohannon, The Big Thaw Reaches Mongolia 's Pristine North, 319 SCI. 567, 568 (2008).
146. See Diaz & Rosenberg, supra note 4 (analyzing over 400 hypoxia zones globally).
147. Bruegmann discusses "the difficulty of pinning down a common definition or linking it to realities on the ground." BRUEGMANN, supra note 3, at 3. Numerous scholarly, interest group, and media efforts have been aimed at defining a "sprawl index," with many different criteria and methodologies being proposed.
148. See e.g., George Galster et al., Wrestling Sprawl to the Ground: Defining and Measuring an Elusive Concept, 12 HOUSING POL'Y DEBATE 681 (2001);
149. Russ Lopez & H. Patricia Hynes, Sprawl in the 1990s: Measurement, Distribution, and Trends, 38 URB. AFF. REV. 325 (2003);
150. see also Haya El Nasser & Paul Overberg, A Comprehensive Look at Sprawl in America, USA TODAY, Feb. 22, 2001, at 1A.
151. One interest group, Smart Growth America, issued a sprawl index report, see REID EWING ET AL., MEASURING SPRAWL AND ITS IMPACT (2002), and an Internet site at which people can find their metropolitan area's rank.
152. See Smart Growth America, Measuring Sprawl and Its Impact: The Character & Consequences of Metropolitan Expansion, 2009, available at http://www.smartgrowmamerica.org/sprawlmdex/Measuring Sprawl.pdf.
153. See R.B. Alley et al., Abrupt Climate Change, 299 SCI. 2005 (2003);
154. Stephen H. Schneider, Abrupt Non-linear Climate Change, Irreversibility and Surprise, 14 GLOBAL ENVTL CHANGE 245 (2004).
155. See Bohannon, supra note 62.
156. For other examples of ecological thresholds of irreversibility that climate change is likely to cross, see U.S. CLIMATE CHANGE SCI. PROGRAM, THRESHOLDS OF CHANGE IN ECOSYSTEMS (2009), available at http://www. climatescience.gov/ Library/sap/sap4-2/public-review-draft.
157. The U.S. Fish and Wildlife Service has estimated that the contiguous forty-eight states lost over half their wetlands land cover from the time of European settlement until the 1990s, going from over 200, 000 million acres to just over 100, 000 million acres. CLAUDIA COPELAND & JEFFREY A. ZINN, CONGRESSIONAL RESEARCH SERVICE, WETLANDS: AN OVERVIEW OF ISSUES 5 (2006).
158. Conversion to agriculture accounts for over 80 percent of those losses, but in the past several decades loss to urbanization has taken over as the leading cause of wetland resource losses. Id. at 14.
159. See also U.S. FISH AND WILDLIFE SERVICE, STATUS AND TRENDS OF WETLANDS IN THE COTERMINOUS UNITED STATES 1998-2004 15, 47 (2006) [hereinafter STATUS AND TRENDS].
160. Consider a popular 1957 children's book, Dear Garbage Man, which tells the supposedly happy story of how garbage was used: "That night as the city slept, the tugboats chugged and whistled softly as they pulled the barges down the river. The trash and ashes they carried would be used to fill in swampland. Then parks and playgrounds would be built there." GENE ZION, DEAR GARBAGE MAN (1957).
161. For example, even during the period from the mid-1950s to the mid-1970s, national wetland losses exceeded 450, 000 acres annually. See STATUS AND TRENDS, supra note 67, at 15.
162. See Brant Keller, What We Always Knew: Wetlands Win Hands Down at Pollution Mitigation, 27 NAT'L WETLANDS NEWSL., Sept-Oct 2005, at 12;
163. Sandra Postel & Stephen Carpenter, Freshwater Ecosystem Services, in NATURE'S SERVICES: SOCIETAL DEPENDENCE ON NATURAL ECOSYSTEMS 195 (Gretchen C. Daily ed., Island Press 1997).
164. See ENVIRONMENTAL LAW INSTITUTE, AFTER THE STORM: RESTORING AMERICA'S GULF COAST WETLANDS, A SPECIAL REPORT OF THE NATIONAL WETLANDS NEWSLETTER (Gwen Arnold ed., Envtl. L. Inst. 2006). Not surprisingly, the most economically destructive flooding in New Orleans was on prior coastal wetland areas that had been drained and developed.
165. See Nature Destroys, But It Also Can Protect, THE ENVTL. F., Sept.-Oct 2005, at 18.
166. See, e.g., STATUS AND TRENDS, supra note 67, at 24-36.
167. See id. at 39-41.
168. See id. at 81-87.
169. See Compensatory Mitigation for Losses of Aquatic Resources, 73 Fed. Reg. 19, 594, 19, 594 (Apr. 10, 2008) (describing "no net loss" of wetlands as a longstanding national goal guiding federal policy).
170. -33 U.S.C. 1344(a) (2000).
171. For background on the wetlands regulation program, see WETLANDS LAW AND POLICY: UNDERSTANDING SECTION 404 (Kim Dana Connolly, Stephen M. Johnson & Douglas R. Williams eds., American Bar Association Publishing 2005). The Corps evaluates over 85, 000 permits annually.
172. See COPELAND & ZINN, supra note 67, at 7.
173. For a history and overview of the wetland compensatory mitigation program, see ENVTL. LAW INST., BANKS AND FEES: THE STATUS OF OFF-SITE MITIGATION IN THE UNITED STATES (2002).
174. See, e.g., NAT'L RESEARCH COUNCIL, COMPENSATING FOR WETLAND LOSSES UNDER THE CLEAN WATER ACT (2001);
175. GOVERNMENT ACCOUNTABILITY OFFICE, GAO-05-898, WETLANDS PROTECTION: CORPS OF ENGINEERS DOES NOT HAVE AND EFFECTIVE OVERSIGHT APPROACH TO ENSURE THAT COMPENSATORY MITIGATION IS OCCURRING (2005).
176. For comprehensive discussions of concerns expressed about the wetlands mitigation program, see Rebecca L. Kihslinger, Success of Wetland Mitigation Projects, 30 NAT'L WETLANDS NEWSL., Mar.-Apr. 2008, at 14;
177. James Salzman & J.B. Ruhl, Currencies and the Commodification of Environmental Law, 53 STAN. L. REV. 607, 657-68 (2000).
178. Wetlands land cover saw a slight net gain during the period from 1998-2004. See STATUS AND TRENDS, supra note 67, at 46.
179. See Rapanos v. United States, 547 U.S. 715 (2006) (describing criteria for limiting federal jurisdiction);
180. see generally Symposium, Rapanos v. United States, 22 NAT. RESOURCES & ENV'T, Summer 2007, at 1 (series of articles exploring the rationales for and potential consequences of the decision).
181. See Turner Odell, On Soggy Ground-State Protection for Isolated Wetlands, 25 NAT'L WETLANDS NEWSL., Sept.-Oct. 2003, at 7 (evaluating effectiveness of state programs in addressing nonfederal wetlands).
182. For example, the 2006 Status and Trends study has been criticized for including farm stock ponds, golf course ponds, and urban storm water control ponds in its count of freshwater wetland acres.
183. See COPELAND & ZINN, supra note 67, at 5.
184. See, e.g., J.B. Ruhl and James Salzman, The Effects of Wetland Mitigation Banking on People, 28 NAT'L WETLANDS NEWSL., Mar-Apr. 2006, at 1.
185. See 73 Fed. Reg. 19, 594 (Apr. 10, 2008) (codified at 33 C.F.R. pts. 325, 332; 40 C.F.R. pt. 230).
186. See Susan-Marie Stedman & Thomas E. Dahl, Coastal Wetlands of the Eastern United States: 1998-2004 Status and Trends, 30 NAT'L WETLANDS NEWSL., July-Aug. 2008, at 4, 18, 19--20 (losses of eastern freshwater, estuarine, and marine wetlands were less than 1 percent over the six-year period).
187. See Josh Eagle, Regional Ocean Governance: The Perils of Multiple-Use Management and the Promise of Agency Diversity, 16 DUKE ENVTL. L. & POL'Y F. 143 (2006).
188. See id. at 143-145
189. Id. at 146.
190. See id. at 157-158
191. See id. at 158-162
192. Id. at 147.
193. See id. at 166-176
194. This is reminiscent of the "Tunnel Vision" problem Justice Breyer has written about in risk management. STEPHEN BREYER, BREAKING THE Vraous CIRCLE: TOWARD EFFECTIVE RISK REGULATION (1993).
195. For background on the federal and state legislative and regulatory initiatives, see L. Leon Geyer et al., Ethanol, Biomass, Biofuels and Energy: A Profile and Overview, 12 DRAKE J. AGRIC. L. 61 (2007);
196. Peter Z. Grossman, If Ethanol Is the Answer. What Is the Question?, 13 DRAKE J. AGRIC. L. 149 (2008);
197. Arnold W. Reitze, Should the Clean Air Act Be Used to Turn Petroleum Addicts into Alcoholics?, 36 ENVTL. L. REP. 10754, 10756 (2006).
198. G. Philip Robertson et al., Sustainable Biofuels Redux, 322 SCI. 49, 49 (2008).
199. See Dan Charles, Corn-Based Ethanol Flunks Key Test, 324 SCI. 587 (2009) (land clearing to produce feedstock will increase greenhouse gas emissions);
200. Joseph Fargione et al., Land Clearing and the Biofuel Carbon Debt, 319 SCI. 1235 (2008);
201. Timothy Searchinger et al., Use of U.S. Croplands for Biofuels Increases Greenhouse Gases Through Emissions from LandUse Change, 319 Sci. 1238 (2008).
202. See NATIONAL ACADEMY OF SCIENCES, WATER IMPLICATIONS OF BIOFUELS PRODUCTION IN THE UNITED STATES (Oct 2007);
203. David Pimintel, Ethanol Fuels: Energy Balance, Economics, and Environmental Impacts are Negative, 12 NAT. RESOURCES RES. 127 (2003);
204. Stanley Mubako & Christopher Lant, Water Resources Requirements of Corn-Based Ethanol, 44 WATER RESOURCES RES. (2007).
205. See William F. Laurence, Switch to Corn Promotes Amazon Deforestation, 318 SCI. 1721 (2007) (discussing rising soy and beef prices).
206. See James Pease & Thomas Simpson, Corn Grain Ethanol and Water Quality in the Chesapeake Bay Watershed, 30 NAT'L WETLANDS NEWSL., Jan.-Feb. 2008, at 1 (discussing this effect).
207. These and other effects are comprehensively discussed in Rudolf M. Smaling, Environmental Barriers to Widespread Implementation of Biofuels, 2 ENVT'L & ENERGY L. & POL'Y REV. 287, 295-305 (2007).
208. See Nancy B. Grimm et al., Global Change and the Ecology of Cities, 319 SCI. 756, 756 (2008).
209. For a thorough discussion of this effect in the context of climate change, see Biber, supra note 60.
210. See Edward B. Barbier et al., Coastal Ecosystem-Based Management with Nonlinear Ecological Functions and Values, 319 SCI. 321 (2008) (examining the policy difficulties flowing from such nonlinearities).
211. Biber, supra note 60, at 6.
212. Id.
213. COMMITTEE ON THE MISSISSIPPI RIVER AND THE CLEAN WATER ACT, NAT'L RESEARCH COUNCIL, NUTRIENT CONTROL ACTIONS FOR IMPROVING WATER QUALITY IN THE MISSISSIPPI RIVER BASIN AND NORTHERN GULF OF MEXICO 49 (2008) [hereinafter 2008 NRC REPORT].
214. See id. at 47 ("The major nutrient sources and their approximate, relative importance are well known.");
215. id. at 48 ("There is scientific consensus that nitrogen is causing the northern Gulf hypoxic zone in the largest areas and for the longest period.").
216. Hypoxia generally occurs once per year, in the summer season.
217. See Diaz & Rosenberg, supra note 4, at 926.
218. See id. passim (discussing 400 hypoxic estuarine systems).
219. In this sense Gulf hypoxia is just one of many examples of the policy fragmentation resulting from the discontinuities between land-based sources and marine-based effects and the political struggles that follow. See Craig, supra note 42, at 831 (arguing that marine ecosystems have long been ignored by the regulatory fragmentation with respect to water). Going back to Eagle's agency diversity model for oceans management,
220. see supra text accompanying notes 8692, this may be yet another complicating factor for his proposal, as some dominant-use agencies would not have control over distant but substantial sources affecting their respective priority-use zones, though that puts them in no worse position than the multiple-use agencies he advises against expanding.
221. Landers, supra note 17, at 54.
222. Id.
223. Id. at 63.
224. See MISSISSIPPI RIVER/GULF OF MEXICO WATERSHED NUTRIENT TASK FORCE, GULF HYPOXIA ACTION PLAN 2008, at 9 (2008) [hereinafter ACTION PLAN], available at http://www.epa.gov/msbasin/pdf/ghap2008-update082608.pdf. The task force action plan is discussed in more detail infra Part V.
225. C.S. Holling et al., Science, Sustainability, and Resource Management, in LINKING SOCIAL AND ECOLOGICAL ECOSYSTEMS 342, 352 (Filkret Berkes & Carl Folke eds., 1998).
226. There is no universally applied definition for complex adaptive systems. A comprehensive overview is provided in JOHN H. MILLER & SCOTT E. PAGE, COMPLEX ADAPTIVE SYSTEMS: AN INTRODUCTION TO COMPUTATIONAL MODELS OF SOCIAL LIFE (2007). For applications in environmental law settings,
227. see Daniel A. Farber, Probabilities Behaving Badly: Complexity Theory and Environmental Uncertainty, 37 U.C. DAVIS L. REV. 145 (2003);
228. J.B. Ruhl, Thinking of Environmental Law as a Complex Adaptive System: How to Clean up the Environment by Making a Mess of Environmental Law, 34 Hous. L. REV. 933 (1997).
229. Michael Batty, The Size. Scale, and Shape of Cities, 319 SCI. 769, 769 (2008).
230. See also MICHAEL BATTY, CITIES AND COMPLEXITY: UNDERSTANDING CITIES WITH CELLULAR AUTOMATA, AGENT-BASED MODELS, AND FRACTALS 1-8 (2007).
231. See ERIC D. BEINHOCKER, THE ORIGIN OF WEALTH: EVOLUTION, COMPLEXITY, AND THE RADICAL REMAKING OF ECONOMICS (2006);
232. Robert M. May et al., Ecology for Bankers, 451 NATURE 893 (2008).
233. See SIMON LEVIN, FRAGILE DOMINION: COMPLEXITY AND THE COMMONS (1999).
234. See R. KEITH SAWYER, SOCIAL EMERGENCE: SOCIETIES AS COMPLEX SYSTEMS (2005).
235. This is because "complexity arises when the dependencies among the elements become important. In such a system, removing one such element destroys system behavior to an extent that goes well beyond what is embodied by the particular element that is removed." MILLER & PAGE, supra note 116, at 9.
236. Thus "work is needed on distinguishing the complex ... from the just complicated in the presence of many possible explanatory models and imperfect data." Nicholas W. Watkins & Mervyn P. Freeman, Natural Complexity, 320 SCI. 323, 324 (2008).
237. See generally Ruhl, supra note 116, at 943-953 (discussing this insensitivity property of complex systems, under which small changes in the system properties can lead to vastly different trajectories, making prediction over the long term difficult).
238. BRUEGMANN, supra note 3, at 18. As he elaborates, "Trying to understand the reciprocal relationships among city, suburbs, and exurbs is like trying to focus the eye simultaneously on numerous objects ricocheting wildly around a confined space."
239. Id.
240. Id. at 222.
241. These and other findings are discussed in IPCC SUMMARY, supra note 58, at 10-17.
242. See Douglas Fox, Back to the No-Analog Future, 316 SCI. 823 (2007). At the global level, one significant limitation for modeling projection accuracy is the obvious fact that we have no experience with a global climate operating at temperatures like those predicted. In short, "[o]nce the world has warmed by 4°C, conditions will be so different from anything we can observe today (and still more different from the last ice age) that it is inherently hard to say when the warming will stop."
243. Myles R. Allen & David J. Frame, Call Off the Quest, 318 SCI. 582, 582 (2007).
244. Gerard H. Roe & Marcie B. Baker, Why Is Climate Sensitivity So Unpredictable?, 318 SCI. 629, 629 (2007). The emerging assessment is that things will not get better in this respect: "[I]t is evident that the climate system is operating in a regime in which small uncertainties in feedbacks are highly amplified in the resulting climate sensitivity. We are constrained by the inevitable: the more likely a large warming is for a given forcing (i.e., the greater the positive feedbacks), the greater the uncertainty will be in the magnitude of that warming."
245. Id. at 632.
246. But see M.D. Meyers et al., USGS Goals for the Coming Decade, 318 SCI. 200, 200 (2007) (expressing optimism that the agency can "increase its capability to provide output from predictive and empirical models for managers to test adaptive strategies, to reduce risk, and to increase the potential for hydrological and ecological systems to be self-sustaining, resilient, or adaptable to climate change and related disturbances.").
247. See Farber, supra note 116, at 156-72. Estimâtes of the economic impact of climate change, the cost of investment in technology and deployment needed to cut greenhouse gas emissions, and the effect of either on gross economic productivity are all over the board.
248. See INTERNATIONAL ENERGY ASSOCIATION, ENERGY TECHNOLOGY PERSPECTIVES-SCENARIOS AND STRATEGIES FOR 2050 (2008);
249. Nicholas Stern, The Economics of Climate Change, 98 AM. ECON. REV. 1 (2008).
250. See Regulating Greenhouse Gas Emissions Under the Clean Air Act, 73 Fed. Reg. 44,354, 44,356-396 (July 30,2008) (to be codified at 40 C.F.R. ch. I).
251. See 73 Fed. Reg. 47,868 (Aug. 15, 2008) (to be codified at 50 C.F.R. pt 402).
252. See Charles E. Connerly, Affordable Housing in Florida: Why Haven't Florida's Growth Management Laws Met the Challenge of Adequately Housing All Its Citizens?, in GROWTH MANAGEMENT IN FLORIDA: PLANNING FOR PARADISE 261
253. (Timothy S. Chapin et al., eds., Ashgate 2008);
254. ARTHUR C NELSON ET AL., A GUIDE TO IMPACT FEES AND HOUSING AFFORDABILITY 3-5 (2008).
255. United States v. MacAndrews & Forbes Co., 149 F. 823, 833-834 (C.C.N.Y. 1906).
256. See, e.g., Am. Trucking Ass'n, Inc. v. Scheiner, 483 U.S. 266, 284 n.16 (1987). Justice Jackson once warned that "[our] danger, as the forefathers well knew, is from the aggregate strangling effect of a multiplicity of individually petty and diverse and local regulations."
257. Duckworth v. Arkansas, 314 U.S. 390,401 (1941) (Jackson, J., concurring).
258. The doctrine's origin is Justice Black's famous observation that the federal civil rights legislation could reach isolated, purely intrastate acts of discrimination because of the "aggregate effect of a great number of such acts of discrimination." Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 276 (1964) (Black, J., concurring).
259. See, e.g., Solid Waste Agency of N. Cook County v. U.S. Army Corps of Engineers, 191 F.3d 845, 850 (7th Cir. 1999).
260. United States v. Lopez, 514 U.S. 549, 606 (1995) (Souter, J., dissenting).
261. Solid Waste Agency of N. Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159, 166 (2001)
262. (quoting Solid Waste Agency of N. Cook County v. U.S. Army Corps of Engineers, 191 F.3d 845, 850 (7th Cir. 1999)).
263. Although the concept, whether called cumulative effects, aggregate effects, cumulative impacts, or some other variant, is rarely mentioned in codified federal statutes, it appears more frequently in federal agency regulations. Based on Westlaw searches in the CFR, SCT, and ALLFEDS libraries, the terms are mentioned in over 100 Supreme Court opinions and over 8700 federal lower court opinions. Many of these references are to trivial matters, such as to the cumulative effect phrases in a jury instruction may have on the jury.
264. See, e.g., Victor v. Nebraska, 511 U.S. 1, 36 (1994) (Ginsburg, J., concurring). For further exploration of the use of cumulative impacts in legal contexts,
265. see Joseph H. Guth, Cumulative Impacts: Death-Knell for Cost-Benefit Analysis in Environmental Decisions, 11 BARRY L. REV. 23 (2008).
266. Only 556 of the 8842 documents returned in the ALLFEDS library search predated 1960, and only 576 predated 1970.
267. See, e.g., 12 C.F.R. §620.11 (2005) (addressing the cumulative effect of changes in accounting principles).
268. See, e.g, 17 C.F.R. §229.302 (2008) (addressing the cumulative effect of changes in accounting principles).
269. See, e.g., 20 C.F.R. §220.14 (2002) (recognizing that multiple impairments can have a cumulative effect).
270. Over 800 cases returned in the ALLFEDS library search involved one or more of these three environmental laws.
271. -42 U.S.C. §§4321-4370f (2000).
272. -16 U.S.C. §§1531-1544 (2006).
273. -33 U.S.C. §1344 (2006).
274. See, e.g., Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,115 (2002) (explaining that hostile workplace environment claims "are different in kind from discrete acts" because they "are based on the cumulative effect of individual acts").
275. -317 U.S. 111(1942).
276. Id. at 128.
277. For example, a judge in one case found that the Endangered Species Act could extend federal regulation to land development affecting the habitat of a protected fly, notwithstanding the fact that the fly was found only in a small area of California and had never been the subject of interstate commerce, because the species contributed to the aggregate of the Earth's biodiversity and that biodiversity in general substantially affects interstate commerce. Nat'l Home Builders Ass'n v. Babbitt, 130 F.3d 1041, 1052-54 (D.C. Cir. 1997). Several commentators have argued that this application of the "aggregate effects" doctrine, which essentially makes every living organism a part of interstate commerce, goes well beyond the principles of Wickard v. Filburn and the Court's other New Deal cases forging the doctrine.
278. See, e.g., John Copeland Nagle, The Commerce Clause Meets the Delhi Sands Flower-Loving Fly, 97 MICH. L. REV. 174, 199-204 (1998) (arguing that this logic would allow federal regulation of any human activity).
279. See 514 U.S. 549 (1995). In Lopez, the Court accepted the validity of the "aggregate effects" doctrine but attached to it the requirement that the regulation must address economic activities which, "viewed in the aggregate, substantially affect[] interstate commerce."
280. Id. at 561. In a subsequent holding, the Court rejected "the argument that Congress may regulate noneconomic, violent criminal conduct based solely on that conduct's aggregate effect on interstate commerce."
281. United States v. Morrison, 529 U.S. 598, 617 (2000). However, in 2005 the Court appeared to restore some vitality to the doctrine in approving federal criminal prosecution of home-consumed marijuana.
282. See Gonzales v. Raich, 545 U.S. 1 (2005). The evolution of the "aggregate effects" doctrine is meticulously traced in
283. Jim Chen, The Story of Wickard v. Filburn: Agriculture, Aggregation, and Commerce, in CONSTITUTIONAL LAW STORIES 69-118 (Michael C. Dorf, ed., 2d ed., 2008),
284. and Bradford Mank, After Gonzales v. Raich: Is the Endangered Species Act Constitutional under the Commerce Clause?, 78 U. COLO. L. REV. 375 (2007).
285. -50 C.F.R. §§402.14(g)(3)(4) (2008). The agency defines cumulative effects as "those effects of future State or private activities, not involving Federal activities, that are reasonably certain to occur within the action area."
286. -50 C.F.R. §402.02 (2008).
287. Statutory policies allow the Corps to issue general permits for disposal of fill material in navigable waters covering classes of activities the agency determines "are similar in nature, will cause only minimal adverse environmental effects when performed separately, and will have only minimal cumulative adverse effect on the environment." 33 U.S.C. §1344(e)(1) (2006). Corps regulations for project-specific fill permits require the agency to conduct "an evaluation of the probable impacts, including cumulative impacts, of the proposed activity." 33 C.F.R. §320.4(a)(1) (2002).
288. See supra note 152 for the agency's definition of "cumulative effects."
289. -42 U.S.C. §4332(2)(C)(i)-(ii) (2000). This provision also requires statements on alternative actions, short- and long-term implications, and "any irreversible and irretrievable commitments of resources." Id. at §4332(2)(C)(iii)-(v).
290. The CEQ has defined direct effects as effects "which are caused by the action and occur at the same time and place," 40 C.F.R. §1508.8(a) (2008), indirect effects as effects "which are caused by the action and are later in time or farther removed in distance, but are still reasonably foreseeable," id. §1508.8(b), and cumulative impacts as the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor but collectively significant actions taking place over a period of time. Id. § 1508.7.
291. COUNCIL ON ENVIRONMENTAL QUALITY, CONSIDERING CUMULATIVE EFFECTS UNDER THE NATIONAL ENVIRONMENTAL POLICY ACT vi (Jan. 1997).
292. Id. at 38.
293. Draft Memorandum from Kathleen A. McGinty, Chairman, Council on Envtl. Qual., to Heads of Fed. Agencies 1 (Oct. 8, 1997).
294. Id. at 4.
295. It is worth noting that some courts have gone in the direction suggested by the CEQ draft policy. For example, the court in Border Power Plant Working Group v. Department of Energy found that, in preparing an EIS in connection with the issuance of permits and rights-ofway allowing two utilities to build electricity transmission lines to connect power plants in Mexico to the power grid in Southern California, the federal agencies had to consider the carbon emissions from the Mexican power plants. 260 F. Supp. 2d 997 (S.D. Cal. 2003). In December 2009, the CEQ informed Senate members that it is considering issuing such guidance, concluding there is "no basis" for excluding greenhouse gas emissions from NEPA assessments.
296. See Letter from Nancy H. Sutley, Chair, CEQ, to Honorable James M. Inhofe and Honorable John Barrasso (Dec. 29, 2009), available at http://www.eenews. net/public/25/13847/features/documents/2010/ 01/15/document-gw-02.pdf.
297. ADAPTIVE ENVIRONMENTAL ASSESSMENT AND MANAGEMENT (Crawford S. Holling ed., 1978).
298. See also Kai N. Lee & Jody Lawrence, Restoration under the Northwest Power Act: Adaptive Management: Learning from the Columbia River Basin Fish and Wildlife Program, 16 ENVTL. L. 431, 442 n.45 (1986) (tracing the term "adaptive management" to Holling's book).
299. For background on the adaptive management model, see Holly Doremus, Adaptive Management, the Endangered Species Act, and the Institutional Challenges of "New Age" Environmental Protection, 41 WASHBURN L.J. 50 (2001);
300. Bradley C. Karkkainen, Panarchy and Adaptive Change: Around the Loop and Back Again, 7 MINN. J.L. SCI. & TECH. 59 (2005);
301. J.B. Ruhl, Regulation by Adaptive Management-Is It Possible?, 7 MINN. J.L. SCI & TECH 21 (2005).
302. NAT'L RESEARCH COUNCIL, PANEL ON ADAPTIVE MANAGEMENT FOR RESOURCE STEWARDSHIP, COMMITTEE TO ASSESS THE U.S. ARMY CORPS OF ENGINEERS METHODS OF ANALYSIS AND PEER REVIEW FOR WATER RESOURCES PROJECT PLANNING, ADAPTIVE MANAGEMENT FOR WATER RESOURCES PROJECT PLANNING 22 (2004).
303. The National Research Council panel explains: Adaptive management is not a "one size fits all" or a "cookbook" process, as experience with the concept and its related procedures to date is limited and evolving. There are multiple views and definitions regarding adaptive management, but elements that have been identified in theory and in practice are: management objectives that are regularly revisited and accordingly revised, a model(s) of the system being managed, a range of management options, monitoring and evaluating outcomes of management actions, mechanisms for incorporating learning into future decisions, and a collaborative structure for stakeholder participation and learning. Id. at 2. For a thorough description of adaptive management theory and protocol, see id. at 19-32.
304. Massachusetts v. EPA, 549 U.S. 497, 524 (2007).
305. See Shapiro & Schroeder, supra note 39, at 446-48.
306. See id.
307. See supra text accompanying note 30.
308. For a comprehensive analysis of the multiscalar attributes of climate change and the corresponding need for multiscalar policy responses, see Osofsky, supra note 34.
309. See Buzbee, supra note 37, at 10 ("sprawl exceeds the reach of local governments").
310. See Michael A. Livermore, Cause or Cure? Cost-Benefit Analysis and Regulatory Gridlock, 17 N.Y.U. ENVTL. L.J. 107, 114-19 (2008);
311. Shapiro & Schroeder, supra note 39, at 450-62.
312. See Daniel H. Cole, The Stern Review and Its Critics: Implications for the Theory and Practice of Benefit-Cost Analysis, 48 NAT. RESOURCES J. 53 (2008).
313. See supra note 32.
314. Indeed, most people agree that all levels of government hold some level of responsibility for responding to climate change. A 2008 survey of Virginians, for example, found that "86 percent of respondents believe that the federal government is responsible on this issue. At the same time, 85 percent of respondents also believe that state governments have some degree of responsibility and 77 percent have a similar view of local governments." BARRY RABE & CHRISTOPHER BORICK, MILLER CENTER OF PUB. AFF., UNIV. OF VA., REPORT OF THE VIRGINIA CLIMATE CHANGE SURVEY 11 (2008), available at http://webstorage3.mcpa.virginia.edu/ panels/pdf/panel- 2008-102 l-borick.pdf.
315. Engel, supra note 22, at 176. As Kirsten Engel explains, "Alternatively named 'empowerment federalism,' 'polyphonic federalism,' 'interactive federalism,' 'dynamic federalism,' and even 'vertical regulatory competition,' this reconceptualization has come in the form of a cluster of theoretical proposals, all rejecting dual federalism and all emphasizing the benefits of overlapping federal and state power." Id. For additional scholarship developing Dynamic Federalism and related principles, see Adelman & Engel, supra note 28;
316. Robert B. Ahdieh, Foreign Affairs, International Law, and the New Federalism: Lessons from Coordination (Emory Law and Econ. Research Paper No. 08-30, 2008), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id= 1272967;
317. Robert B. Ahdieh, From Federalism to Intersystemic Governance: The Changing Nature of Modern Jurisdiction, 57 EMORY L.J. 1 (2007);
318. Renee M. Jones, Dynamic Federalism: Competition, Cooperation and Securities Enforcement, 11 CONN. INS. L.J. 107 (2004);
319. Robert A. Schapiro, From Dualist Federalism to Interactive Federalism, 56 EMORY L.J. 1 (2006) [hereinafter Dualist Federalism];
320. Robert A. Schapiro, Toward a Theory of Interactive Federalism, 91 IOWA L. REV. 243 (2005) [hereinafter Interactive Federalism].
321. Sovacool, supra note 28, at 448. Of course, overlap of authority can occur under dual federalism if federal and state authorities independently regulate the same problem, and under cooperative federalism when the federal government employs (or more accurately, coerces) state governments to implement federal standards. By contrast, overlap of authority under Dynamic Federalism is neither accidental nor coerced. Adelman and Engel explain that cooperative federalism fares somewhat better with the dynamic school. The overlapping authority, although asymmetric, at least has the trappings of a dynamic system. Cooperative federalism nonetheless falls short from the point of view of the dynamic school. The federal laws and regulations are often, but not always, so comprehensive as to exclude for all practical purposes alternative approaches by the states. Adelman & Engel, supra note 28, at 1812-13. Still, many commentators express faith in the ability of traditional cooperative federalism governance to respond effectively to massive problems such as climate change.
322. See, e.g., Holly Doremus & W. Michael Hanemann, Of Babies and Bathwater: Why the Clean Air Act's Cooperative Federalism Is Useful for Addressing Global Warming, 50 ARIZ. L. REV. 799 (2008).
323. Engel, supra note 22, at 161.
324. Adelman & Engel, supra note 28, at 1798.
325. Id. at 1796.
326. See, e.g., Sovacool, supra note 28, at 408.
327. See Adelman & Engel, supra note 28, at 1799-1800.
328. An important exception is the work of Adelman and Engel, who emphasize the complexity and multiscalar attributes of environmental problems in developing and distinguishing the variant of Dynamic Federalism they call Adaptive Federalism. See id. at 1814-18, 1827-28. They focus their attention, however, less on developing and learning from a model of environmental problems than on exploring differences they have with Dynamic Federalism scholars over the status of states in the multijurisdictional overlap of authorities, with their preference being for a strong but not overpowering federal role. See id. at 1830-40.
329. See Adelman & Engel, supra note 28, at 1808;
330. Schapiro, Interactive Federalism, supra note 175, at 292-93;
331. Sovacool, supra note 28, at 448-51.
332. See Jacob E. Gersen, Overlapping and Underlapping Jurisdiction in Administrative Law, 2006 SUP. CT. REV. 201, 214 (2006).
333. See Adelman & Engel, supra note 28, at 1817-18.
334. See id. at 1809-10 (summarizing literature suggesting that overlapping authority can promote initiative at one governance scale and spark other scales to follow promising policy innovations).
335. See generally Abate, supra note 32 (exploring the role of litigation);
336. Victor B. Flatt, Taking the Legislative Temperature: Which Federal Climate Change Legislative Proposal Is "Best"?, 102 Nw. U.L. REV. COLLOQUY 123 (2007) (comparing cap-and-trade proposals);
337. Lisa Heinzerling, Climate Change and the Clean Air Act, 42 U.S.F. L. REV. 111 (2007) (emphasizing regulation);
338. Symposium, Global Warming, 22 NAT. RESOURCES & ENV'T 1 (2008), at 3-55 (series of articles exploring a wide range of instruments).
339. A recent comprehensive study by Goulder and Parry, for example, uses costeffectiveness, distributional equity, risk minimization, and political feasibility as evaluation criteria for a broad array of incentive-based, regulatory and cost comparison policy tools, concluding that no single instrument is clearly superior along all the criteria. See LAWRENCE H. GOULDER & IAN W.H. PARRY, INSTRUMENT CHOICE IN ENVIRONMENTAL POLICY 1 (Apr. 2008).
340. See id. at 3.
341. See Karkkainen, supra note 23, at 480. For a sweeping overview of New Governance theory, one which Karkkainen reviews,
342. see Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary Legal Thought, 89 MINN. L. REV. 342 (2004) [hereinafter The Renew Deal]. For additional scholarship developing New Governance principles,
343. see THE TOOLS OF GOVERNMENT: A GUIDE TO THE NEW GOVERNANCE (Lester M. Salamon ed., 2001);
344. Christie L. Ford, New Governance, Compliance, and Principles-Based Securities , Regulation, 45 AM. BUS. L.J. 1 (2008);
345. Alana Klein, Judging as Nudging: New Governance Approaches for the Enforcement of Constitutional Social and Economic Rights, 39 COLUM. HUM. RTS. L. REV. 351 (2008);
346. Orly Lobel, Setting the Agenda for New Governance Research, 89 MINN. L. REV. 498 (2004) [hereinafter Setting the Agenda];
347. Lester M. Salamon, The New Governance and the Tools of Public Action: An Introduction, 28 FORDHAM URB. L.J. 1611 (2001);
348. Michael Waterstone, A New Vision of Public Enforcement, 92 MINN. L. REV. 434 (2007). The thesis of New Governance theory is explored more fully infra in Part IV.B.
349. See Lobel, The Renew Deal, supra note 190, at 371-404.
350. For a discussion of how complex, evolving policy problems can adapt around fixed prescriptive rules, see Ruhl, supra note 116, at 967-91.
351. In a different context, Congressman John Dingell threatened that failure to create a federal cap-and-trade program for greenhouse gases would lead to agency regulations and "a glorious mess." John Dingell, Op-Ed., "A Glorious Mess, " WALL ST. J., Apr. 12,2008, at A8.
352. The seminal and still most comprehensive discussion of Transgovernmental Network theory is found in ANNE-MARIE SLAUGHTER, A NEW WORLD ORDER (2004). For additional scholarship developing Transgovernmental Network principles,
353. see Neil Craik & Joseph DiMento, Environmental Cooperation in the (Partially) Disaggregated State: Lessons from the Security and Prosperity Partnership of North America, 8 CHI. J. INT'L L. 479 (2008);
354. Patrick X. Delaney, Transnational Corruption: Regulation Across Borders, 47 VA. J. INT'L L. 413 (2007);
355. Eleanor D. Kinney, The Emerging Field of International Administrative Law: Its Content and Potential, 54 ADMIN. L. REV. 415 (2002);
356. Kal Raustiala, The Architecture of International Cooperation: Transgovernmental Networks and the Future of International Law, 43 VA. J. INT'L L. 1 (2002);
357. Anne-Marie Slaughter, The Accountability of Government Networks, 8 IND. J. GLOBAL LEGAL STUD. 347 (2001);
358. Jenia Iontcheva Turner, Transnational Networks and International Criminal Justice, 105 MICH. L. REV. 985 (2007);
359. Christopher Whytock, A Rational Design Theory of Transgovernmentalism: The Case of E.U.-U.S. Merger Review Cooperation, 23 B.U. INT'L L.J. 1 (2005).
360. See SLAUGHTER, supra note 194, at 18, 22-23.
361. See id. at 19-22.
362. See Freeman & Färber, supra note 38, at 899 ("It is intriguing to see the supposedly hierarchical world of domestic regulation evolving in a direction reminiscent of modern international relations.").
363. See Levit, supra note 24, at 182.
364. Network theory is proving of increasing use and value in the social sciences. See generally Stephen P. Borgatti et al., Network Analysis in the Social Sciences, 323 Sci. 892 (2009) (reviewing advancements and applications of network theory in social sciences). Some social network theorists have suggested that wide networks of small-scale "weak" interactions form efficient large-scale patterns of information flow, whereas narrow networks of intense "strong" ties can isolate interpersonal relations. Thus, as Mark Granovetter famously suggested, "weak ties, often denounced as generative of alienation are ... indispensable to individuals' opportunities and to their integration into communities; strong ties, breeding local cohesion, lead to overall fragmentation."
365. Mark S. Granovetter, The Strength of Weak Ties, 78 AM. J. Soc. 1360, 1378 (1973). Although the literature debating the merits of weak and strong ties is legion (Granovetter's article is cited over 7000 times), few social theorists contend that weak ties are not important.
366. See Daniel Z. Levin & Rob Cross, The Strength of Weak Ties You Can Trust: The Mediating Role of Trust In Effective Knowledge Transfer, 50 MGMT. S. 1477, 1478 (2004) (surveying the literature). Digital records, faster computers, and more robust mathematical models have allowed network theorists to study larger and more complex social networks, with many studies confirming the important role of weak ties.
367. See, e.g., John Bohannon, Tracking People's Electronic Footprints, 314 SCI. 914 (2006).
368. Or, as Nan Hunter puts it, "a circulatory system rather than a set of defined partnerships." Nan D. Hunter, "Public-Private" Health Law: Multiple Directions in Public Health, 10 J. HEALTH CARE L. & POL'Y 89, 103 (2007).
369. See ACTION PLAN, supra note 114. In the Harmful Algal Bloom and Hypoxia Research Control Act of 1998, Congress identified eleven federal agencies to participate in the effort and charged them with providing for "Federal cooperation and coordination with and assistance to the coastal States, Indian tribes, and local governments in the prevention, reduction, management, mitigation, and control of hypoxia and its environmental impacts." Coast Guard Authorization Act of 1998 §603(b)(2)(B), 16 U.S.C. §1451. The Task Force began as a federal interagency working group coordinated through the White House Office of Science and Technology Committee on Environment and Natural Resources. See U.S. Envtl. Protection Agency, Mississippi River Basin Watershed Nutrient Task Force, http://www.epa.gov/ msbasin/taskforce.htm.
370. Its first major work product was the 2001 ACTION PLAN FOR REDUCING, MITIGATING, AND CONTROLLING HYPOXIA IN THE NORTHERN GULF OF MEXICO (2001), available at http://www.epa.gov/msbasin/tfproducts.htm. The 2008 report is the Task Force's effort to "track progress, update the science, and adapt actions to improve the effectiveness of the efforts."
371. See ACTION PLAN, supra note 114, at 4. The work of the Task Force can be followed at its website, http://www.epa.gov/msbasin/ (last visited Dec. 1, 2008).
372. See ACTION PLAN, supra note 114, at 22.
373. -2008 NRC Report, supra note 106, at 49.
374. Id.
375. Id.
376. ACTION PLAN, supra note 114, at 9,60.
377. Id. at 33.
378. Id. at 5.
379. Id. at 30-58 (introducing and then describing each of the eleven action items)
380. See id.
381. See id. at 17.
382. Id. at 32.
383. Id. at 18, 32-33, 37.
384. See id. at 5.
385. Id. at 24-25.
386. See Freeman & Farber, supra note 38, at 837.
387. Hunter, supra note 200, at 101.
388. ACTION PLAN, supra note 114, at 33.
389. Id. at 17.
390. Id. at 48.
391. Id. at 50.
392. -2008 NRC Report, supra note 106, at 4.
393. Id. at 4-5.
394. Id. at 4.
395. Professors Freeman and Farber, for example, identify agency autonomy and accountability as significant issues for their conception of "modular" multiagency environmental regulation. See Freeman & Farber, supra note 38, at 900-09.
396. -42 U.S.C. §4332(2)(C) (2000).
397. For background on CalFed and its rise and fall, see Freeman & Farber, supra note 38, at 837-76;
398. Owen, supra note 36, passim.
399. For a brief but compelling survey of the problems the area faces, see Robert F. Service, Delta Blues, California Style, 317 SCI. 442 (2007).
400. Owen, supra note 36, at 1149.
401. Id.
402. Id.
403. Freeman & Farber, supra note 38, at 907.
404. Id. at 908-09.
405. See id. at 900-01, 906-07.
406. See Owen, supra note 36, at 1215.
407. See Harry R. Hughes & Thomas W. Burke, Jr., The Cleanup of the Chesapeake Bay: A Test of Political Will, 11 NAT. RESOURCES & ENV'T 30,31 (Fall 1996).
408. See Jon Cannon, Choices and Institutions in Watershed Management, 25 WM. & MARY ENVTL. L. & POL'Y REV. 379,380 (2000).
409. Annecoos Wiersema, A Train Without Tracks: Rethinking the Place of Law and Goals in Environmental and Natural Resources Law, 38 ENVTL. L. 1239, 1272 (2008).
410. Id.
411. Id. at 1274.
412. In their recent study of the Chesapeake Bay Program, which involved numerous interviews with staff, Rena Steinzor and Shana Jones found the lack of clear accountability mechanisms as a primary obstacle, along with a slow-moving collaborative structure. See RENA STEINZOR & SHANA JONES, CENTER FOR PROGRESSIVE REFORM, AN ACCOUNTABILITY MECHANISM FOR THE CHESAPEAKE BAY 2-3 (2008).
413. See generally U.S. GOV'T ACCOUNTABILITY OFFICE, CHESAPEAKE BAY PROGRAM: IMPROVED STRATEGIES ARE NEEDED TO BETTER ASSESS, REPORT, AND MANAGE RESTORATION PROGRESS, GAO-06-96 (2005) (reviewing program management difficulties and performance shortfalls).
414. Terry M. Moe, The Politics of Bureaucratic Structure, in JOHN E. CHUBB AND PAUL E. PETERSON, CAN THE GOVERNMENT GOVERN? 285 (1989).
415. THOMAS C. SCHELLING, MICROMOTIVES AND MACROBEHAVIOR 13 (1978).
416. In complex social systems, "[s]tability, security, and equilibrium ... can be deceptive, for they are but momentary eddies in an endlessly complex and turbulent flux." MARK C. TAYLOR, THE MOMENT OF COMPLEXITY: EMERGING NETWORK CULTURE 3 (2001).