Academic

Organ on Subsidiarity & Environmental Regulation

By Lawrence Solum

Jerome N. Organ (University of St. Thomas - School of Law (Minnesota)) has posted Subsidiarity and Solidarity: Lenses for Assessing the Appropriate Locus for Environmental Regulation and Enforcement (University of St. Thomas Law Journal, Vol. 5, No. 262, 2008) on SSRN. Here is the abstract:

This article will use the principles of subsidiarity, solidarity and the common good to analyze the extent to which some specific aspects of the environmental statutory and regulatory regimes in the United States are "rightly ordered." Specifically, this article will look at aspects of two different environmental regulatory systems - the Resource Conservation and Recovery Act ("RCRA") and the Comprehensive Environmental Response Compensation and Liability Act ("CERCLA") - to evaluate whether principles of subsidiarity, solidarity and the common good suggest that the locus of regulation and enforcement makes sense as presently structured.

Section I begins with an outline of subsidiarity, solidarity and the common good and evaluates these principles in contrast to considerations of economics and political science, which are more frequently used within secular discussions of the need for, and appropriate locus of, environmental regulation. Section II then analyzes how these principles apply to RCRA and CERCLA: first, the section suggests that RCRA is largely "rightly ordered" in terms of being a regulatory system in which regulation is designed and promulgated at the federal level, implemented and enforced at the state level, and considered by individual businesses when deciding upon manufacturing processes that may (or may not) generate hazardous wastes subject to regulation; second, the section suggests that in contrast to RCRA, CERCLA is a regulatory system inappropriately ordered toward federal control (at least in part) when state or local control might be more appropriate. Section III concludes with a brief discussion of how the principles of subsidiarity, solidarity and the common good might provide a useful methodology for evaluating other environmental regulatory regimes.

Full post as published by Legal Theory Blog on September 08, 2008 (boomark / email).