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Bundling Public and Private Goods: The Market for Sustainable Organics

Margot J. Pollans

Modern agriculture has vast environmental externalities. The pesticides, fertilizers, and sediments in irrigation runoff pollute surface and groundwater; single-crop farms destroy biodiversity; and massive amounts of fossil fuels are burned in agricultural production, post-harvest processing, and shipping. Nevertheless, farming operations have largely escaped the post-1970 expansion of federal environmental regulation. Compounding the problem, federal farm policy has encouraged the very farming practices that most cause this degradation.

In 1990, Congress passed the Organic Foods Production Act (OFPA), which created an organic food certification and labeling system. While OFPA’s primary purposes are to facilitate the growth of the organic sector and to protect consumers, this Note suggests that the Act’s secondary purpose, underimplemented by the United States Department of Agriculture (USDA), is to foster sustainable farming practices. This Note explores whether the OFPA’s organic labeling system does or could fill the regulatory gap described above.

This Note finds that under current standards the labeling program does not foster sustainable farming, not only because of shortfalls with the standards themselves but also because the market suffers from a freerider problem: Organic foods cost more, but consumers do not want to pay more for dispersed public benefits. Strengthening the standards would drive up production costs and exacerbate the freerider problem, but this Note argues that the USDA could mitigate the resulting decline in demand by taking advantage of the fact that organic products bundle sustainability, a public good for which people are not willing to pay much, with health, a private good for which many people are willing to pay more.

Guns, Butter, and Judges: Judicial Frameworks for Cases Implicating Security-Wealth Tradeoffs

L. Rush Atkinson

Many policies in foreign affairs law increase national security at the expense of national wealth and vice versa. Courts have struggled to find a suitable framework for adjudicating cases arising out of these policy decisions. In the recent case United States v. Eurodif S.A., the Supreme Court seemingly abandoned previous assumptions about security-wealth cases, relying instead on the Chevron framework commonly used in administrative law. This Note outlines the potential shift to Chevron and its merits vis-à-vis older frameworks for security-wealth cases. It concludes that Eurodif may well represent a profound change in the Court’s treatment of international relations and predicts that continued application of the Chevron framework will improve foreign policymaking.

The Institutional Dynamics of Transition Relief

Jonathan S. Masur, Jonathan Remy Nash

Whether and how to provide transition relief from a change in legal regime is a question of critical importance. Legislatures and agencies effect changes to the law constantly, and affected private actors often seek relief from those changes, at least in the short term. Scholarship on transition relief therefore has focused almost entirely on examining when transition relief might be justified and now recognizes that there may be settings where relief from legal transitions is appropriate. Yet largely absent from these treatments is an answer to the question of which institutional actor is best positioned to decide when legal transition relief is appropriate and what form it should assume. In this Article, we address this issue in two parts: Can the private market develop adequate risk-spreading devices such that government relief is unnecessary? If government relief is warranted, what government actors are best suited to provide relief? We find that private markets will be unable to provide adequate transition insurance due to insurmountable pricing difficulties, and that the task must thus fall to governmental actors. We then analyze the available governmental actors and conclude that, in many cases, an independent agency will be best positioned to make reliable and welfare-enhancing decisions regarding transition relief.

Improving the Protection of Species Endangered in the United States by Revising the Distinct Population Segment Policy

Allison L. Westfahl Kong

While one primary goal of the Endangered Species Act is to prevent the global extinction of species, it is less clear whether the Act is intended, and can be used, to protect species that are endangered solely within the United States. Although the global preservation of species may be sufficient to achieve many of the goals of the Endangered Species Act, some goals may only be completely served by ensuring that certain populations of species occur within the United States, even if the animals are abundant elsewhere. The current Distinct Population Segment Policy being used by the Fish and Wildlife Service and the National Marine Fisheries Service to determine whether to list domestic populations of species as threatened or endangered only allows the agencies to protect these population segments if they are significant to the species’ taxon as a whole. This Note argues that this policy should be changed because there are many compelling reasons to protect domestic populations of particular species, even if these species are abundant elsewhere, and suggests criteria that should be used to determine whether a particular population segment should be protected, including the species’ conservation status and importance to the American people. It also demonstrates that this proposal would be consistent with the goals of the Endangered Species Act.

The Tailoring Rule: Mending the Conflict Between Plain Text and Agency Resource Constraints

Kirti Datla

In 2010, the Environmental Protection Agency (EPA) promulgated the Tailoring
Rule. The Rule “tailors” the numeric triggers for permitting requirements in the
Clean Air Act by revising the numbers upward by several orders of magnitude.
EPA argued that doing so was necessary to avoid the impossible administrative
burden that would result from having to carry out the plain text of the Act as
applied to greenhouse gases. At first glance, the Tailoring Rule seems to be a classic
case of an agency exceeding its authority and subverting congressional intent. Upon
further examination, it becomes clear that EPA is grappling with an important issue
that current administrative law doctrine fails to adequately address: What should an
agency do when it does not have the resources to carry out all of its required duties?
This Note argues that courts should use the rationale of administrative necessity to
allow agencies to openly demonstrate that it would be impossible to fully carry out
their nondiscretionary statutory duties. Upon that demonstration, courts should
allow agencies to promulgate regulations that propose a solution to that
impossibility.

Toxic Assets: The EPA’s Settlement of CERCLA Claims in Bankruptcy

Scott E. Blair

The Environmental Protection Agency’s (EPA) recent settlement of environmental
cleanup claims against Asarco, the highest such settlement in history, highlights the
incongruity between the tools at the Agency’s disposal to recover cleanup costs and
its actual behavior in pursuing such claims. The Comprehensive Environmental
Response, Compensation, and Liability Act of 1990 (CERCLA) provides statutory
authority that should allow EPA to force polluters to fully bear the burden of
cleaning up pollution. However, despite EPA’s relative success against solvent
responsible parties, EPA appears to be less aggressive in pursuing CERCLA
claims against insolvent polluters, even though the Bankruptcy Code provides additional
tools to give EPA an advantage relative to creditors. This Note explains the
statutory advantages that EPA has under CERCLA and the Bankruptcy Code, and
then explores how EPA fails to behave like a rational economic actor in pursuing
its CERCLA claims. I conclude by positing political factors and budget shortfalls
as two potential explanations of EPA’s behavior.

The PII Problem: Privacy and a New Concept of Personally Identifiable Information

Paul M. Schwartz, Daniel J. Solove

Personally identifiable information (PII) is one of the most central concepts in
information privacy regulation. The scope of privacy laws typically turns on
whether PII is involved. The basic assumption behind the applicable laws is that if
PII is not involved, then there can be no privacy harm. At the same time, there is no
uniform definition of PII in information privacy law. Moreover, computer science
has shown that in many circumstances non-PII can be linked to individuals, and
that de-identified data can be re-identified. PII and non-PII are thus not immutable
categories, and there is a risk that information deemed non-PII at one time can be
transformed into PII at a later juncture. Due to the malleable nature of what constitutes
PII, some commentators have even suggested that PII be abandoned as the
mechanism by which to define the boundaries of privacy law.
In this Article, we argue that although the current approaches to PII are flawed, the
concept of PII should not be abandoned. We develop a new approach called “PII
2.0,” which accounts for PII’s malleability. Based upon a standard rather than a
rule, PII 2.0 utilizes a continuum of risk of identification. PII 2.0 regulates information
that relates to either an “identified” or “identifiable” individual, and it establishes
different requirements for each category. To illustrate this theory, we use the
example of regulating behavioral marketing to adults and children. We show how
existing approaches to PII impede the effective regulation of behavioral marketing,
and how PII 2.0 would resolve these problems.

Judicial Review and the Humane Treatment of Animals

Craig A. Wenner

Humans have a complicated relationship with animals. Animals are at the same
time companions, food, subjects of research, and competitors for resources. Determining
how we should treat them in these different contexts—setting the standards
that capture our concern for their welfare—is difficult. Our contemporary scientific
understanding of animal behavior and physiology should ultimately inform our
standards for animal welfare. However, what science cannot determine is how
much concern we should have in the first place.

This Note focuses on those laws that aim to set humane standards for the treatment
and care of animals. When legislatures place the burden of setting those standards
on administrative agencies, courts should ensure that the meaning of “humane”
relied upon by an agency reflects more than science alone. Through examining a
recent opinion of the Supreme Court of New Jersey, this Note argues that such
standards must incorporate the social value that we place on mitigating animal pain
and suffering and provides examples of how such value should be measured. Furthermore,
judicial review of agency action can be conducted in a manner that both
respects the institutional role of the court and ensures that agencies have actually
made tough ethical decisions.

Taxes as Regulatory Tools: An Argument for Expanding New York City’s Taxing Authority

Erin Adele Scharff

This Note explores the regulatory role of tax policy in New York City and argues
that the City’s power to tax independently should be increased. Currently, New
York City must seek permission from the New York State Legislature to impose
new taxes or change the structure of existing taxes. This restriction is justified primarily
by the revenue-raising function of tax policy—an analysis that ignores the
important role tax policy plays in creating effective regulatory regimes. The first
Part of this Note sorts out the tangled relationship between fiscal policy tools such
as taxation, regulation, user fees, and spending, and suggests factors relevant to
determining which tool is most appropriate to use in a given situation. The Note
next discusses New York State’s scheme for distributing authority over taxation and
regulation, and provides an overview of local government law. The concluding Part
of this Note argues that New York City should be given more independent taxing
authority and directly addresses arguments against the granting of greater municipal
taxing power.

Medical Devices and Preemption: A Defense of Parallel Claims Based on Violations of Non-Device Specific FDA Regulations

Elliot Sheppard Tarloff

In Riegel v. Medtronic, Inc., the Supreme Court held that because the FDA
imposes device-specific requirements on the most sophisticated medical devices, tort
claims that would impose different or additional requirements on such devices are
preempted. The Court created an exception to this preemption rule for claims that
parallel federal requirements. However, it failed to define precisely what constitutes
a parallel claim. Lower courts have split on whether claims based on violations of
non–device specific, industry-wide federal regulations survive preemption. Several
courts, including the Eighth Circuit, and at least one scholarly article, have concluded
such claims are expressly and/or impliedly preempted. However, the Fifth
and Seventh Circuits, and a handful of district courts, have taken a more liberal
approach, holding that these claims should survive preemption. This Note explores
the split and argues that the liberal approach is preferable for doctrinal and public policy
reasons.

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