The Negotiable Implementation of Environmental Law, 75
Stan. L. Rev.
Available at: https://repository.uclawsf.edu/faculty_scholarship/1975
tional wisdom describes environmental law as a field filled with rigid mandates. ith that rigidity as a key premise, and they allege that inflexibility is a central failing or, alternatively, a squandered virtue. Influential reform proposals follow from both allegations. This Article demonstrates that these premises are often mistaken. Based on literature reviews and interviews with environmental-law practitioners, it shows that flexibility pervades environmental law, and regulators, regulated entities, and other interest groups routinely use negotiations to navigate that flexibility. Indeed, negotiation is so central to the field that one cannot understand environmental law, either in theory or practice, without understanding where negotiations occur, who participates, and what is up for discussion. Appreciating the centrality of negotiation to environmental law has important benefits beyond descriptive accuracy. The importance of negotiation partially undercuts important critiques of environmental law and complicates the policy prescriptions to which those critiques lead. But that understanding also exposes problems—and potential onmental regulatory agencies are not handling tions with as much transparency, efficacy, or equity as they could and should.
Stanford Law Review