28-29 March 2008 | New York University School of Law Background of the Breaking the Logjam Project The Breaking the Logjam Project is a response to the environmental logjam that has been building in the United States for over two decades. A major cause of this logjam is the failure of Congress to pass a major piece of environmental legislation since 1990. The Problems With the Current Legislative Framework The regulatory infrastructure for dealing with today’s environmental problems consists of environmental statutes enacted in the 1970s and 1980s. Many of these statutes share a number of failings: Compartmentalization: Often aimed at pollution in specific media, such as air, water or soil, many of the statutes are ill-suited to addressing the cross-cutting environmental problems that we now face, such as climate change, the loss of biodiversity, ocean degradation and urban sprawl. Hidden trade-offs: The landmark environmental statutes of the 1970s often ignored the inevitable trade-offs between environmental quality and other concerns. For example, the Clean Air Act called upon the EPA to set ambient air quality standards without regard to the cost of achievement. As a result, when agencies do make these inescapable trade-offs, they must do so in secret, thus shielding these pivotal decisions from public scrutiny and judicial review. Regulatory authority is not scaled to the problem: The landmark federal environmental statutes made federal agencies responsible for environmental problems that in some cases would be better dealt with by local or state levels of government. There is an important continuing role for federal environmental agencies, however; there are many environmental problems where the federal government must take the lead, sometimes working with other countries because the problems are transboundary or global. Indeed, one of the major federal environmental policy challenges of the next few years will be figuring out a way for the U.S. to engage in international efforts to address climate change while also devising effective federal regulatory programs and simultaneously providing a role for state, local and private initiatives. Dominance of command-and-control regulation: In the late 1960s and early 1970s markets were assumed to be the cause of environmental problems and government mandates the solution. Reflecting this belief, federal environmental statutes from the 1970s rely heavily on command-and-control regulation. Existing command statutory programs, encrusted with legalistic ossification, ignore the advantages of decentralized flexibility and innovation and make far too little use of cost-saving regulatory tools, such as market mechanisms and information-based strategies. The Logjam’s Consequences The current logjam means that many critical environmental problems are getting worse, not better. America’s coasts and oceans have become increasingly degraded; fish stocks are being depleted; urban sprawl and traffic congestion threaten ecosystems; factory farms pollute the environment; nuclear waste disposal is stalemated; conflicts over water use grow more acute. Moreover, the U.S. is also left ill-equipped to deal with new problems, most prominently climate change. The Project’s Role In the past few decades many academics and policy experts from a wide range of disciplinary perspectives, and from across the political spectrum, have criticized federal environmental regulation under the statutes of the 1970s and the 1980s. But most analyses have been generic or limited to a single program, and there have been few concrete proposals for new legislation. Regardless of party, Congress and the new administration elected in 2008 will be forced to reassess and reform the obsolete patchwork of environmental regulatory programs. To do their job well, they will need a concrete and comprehensive program for new legislation. That is where the Breaking the Logjam project comes in. It will provide the ideas, ambitious but practical, to revamp our regulatory programs and build an environmental law for the 21st Century. The time has come to break the logjam with fresh, innovative thinking. The project sets out to generate a comprehensive vision of a new structure for environmental protection. This vision would help environmental law to break out of the existing statutory and regulatory policy ruts. After the Symposium The symposium is the first major component of the larger NYLS-NYU Breaking the Logjam project. Other components include: Symposium issue of the NYU Environmental Law Journal: After the symposium and in light of the commentary by panelists and audience members at the symposium, the various authors of the papers produced in connection with the symposium will revise their papers, and they will be published, along with a small number of student papers, in a symposium issue of the NYU Environmental Law Journal. Report: The symposium organizers will synthesize the various proposals from the symposium in a report of approximately 50 pages. Tribeca Square, the press of New York Law School, will publish the report in advance of the November 2008 elections. The report will be distributed to a wide group of leaders including members of both houses of Congress, candidates for Congress, the Presidential candidates and later the transition team of the incoming administration, state and local officials interested in environmental issues, environmental non-profit organizations, business leaders and trade associations, and members of the mainstream press specializing in environmental issues. Presentations to policymakers: After the election, the organizers will travel to Washington D.C. to present the project’s findings to newly elected members of Congress, the incoming administration, and other policymakers. Project participants will also be encouraged to popularize their ideas and propose and comment on legislative proposals. Book: After the election, the organizers will also produce a book expanding on the report. The book will be a substantive work of policy-oriented scholarship, yet written in a form accessible to the general public. Follow-up Seminar: A follow-up seminar at New York Law School in the spring of 2009 will review and evaluate proposed legislative changes in light of the project’s principles. The evaluations may be published in an environmental law journal, presented as testimony at legislative hearings, and/or popularized in op-ed pieces in newspapers and similar publications. New York University School of Law | COPYRIGHT 2007. ALL RIGHTS RESERVED.