Selected Publications

“Does EPA’s §111(d) Proposal Rely on an Unprecedented and Legally Forbidden Approach to Emissions Reduction?” 45 Environmental Law Reporter 10278 (2015)
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“The Overwhelming Case for Clean Air Act Reform” 43 Environmental Law Reporter 10970 (2013) (with David Schoenbrod)

We know how to amend the Clean Air Act so as to reduce its costs and reduce pollution at the same time, saving both money and thousands of lives

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“Should EPA Use Emissions Averaging or Cap and Trade to Implement §111(d) of the Clean Air Act?” 43 Environmental Law Reporter 10731 (2013)

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“Adapting Environmental Law to Greenhouse Gas Controls”, 17 N.Y.U. Envt’l L. J. 256 (2008)

Since almost all measures to reduce greenhouse gas emissions also reduce conventional air pollution, and since almost no measures to reduce conventional pollution reduce greenhouse gases, we should focus on greenhouse gas reductions rather than conventional pollution reduction where the issue which pollutant to reduce is evenly debatable.

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“Using Federal Environmental Regulations to Bargain for Private Land Use Control”, 21 Yale J. on Reg.1 (2004)

Increasingly, persons subject to environmental regulations can meet their obligations by granting the government an interest in land that the government otherwise could only have acquired by purchase. This raises both clear opportunities for abuse and chances for significant environmental gains. Such bargains should still be allowed in principle, but should often be subject to clearer safeguards than now prevail.

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“Contracting with the Regulated for Better Regulations” 53  Administrative Law Review 1067 (2001)

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“Regulation and Information Disclosure as Parallel Universes”  25 Harv. Env. L. Rev. 151 (2001) (1994)

Information disclosure programs have both unique strengths and many unrecognized similarities with the regulatory programs for which they can substitute. In particular, they offer agencies a chance to improve their own functioning and autonomy by using these programs to structure a dialogue with their various constituencies.

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“Turning the Tide on Water Quality” 15 Ecology Law Quarterly 69 (1988)

Water pollution controls that really produce clean water should address all sources of the problem, including farms and urban runoff, rather than focusing on industry and sewage treatment plants as at present.

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“Why the Clean Air Act Works Badly”, 129 University of Pennsylvania Law Review 1059 (1981)

Argued that Congress should simplify and improve the Clean Air Act by replacing regulations with source-specific permits to implement many statutory requirements. Congress adopted many of these suggestions, but not the simplifying parts.

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“The Decline of Separation of Functions in Regulatory Agencies”, 64 Virginia Law Review 991 (1978)

Use of trial-type hearings to make agency policy decisions invariably deprives the decisionmakers of advice from some of their most expert staff. Substituting less adversarial procedures can avoid this problem.

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“Formal Records and Informal Rulemaking”, 85 Yale Law Journal 38 (1975)

Agencies should issue legally binding regulations through procedures that generate a clearly defined record for judicial review. Congress wrote these recommendations into the Clean Air Act and they have been almost universally adopted as agency practice beyond that.

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