November 29, 2023

Reallocating Environmental Risk

[Cross-posted from Evironmental Law Prof Blog]

By Karrigan Bork and Keith Hirokawa

Living the good life has often meant finding ways to allow for growth and construction while ostensibly protecting the natural environment on which we depend. Want to build a housing development, but there’s a wetland in the way? Mitigate the harm by building a new one somewhere else. Want to dam a river, but there’s a salmon run in the way? Build fish passage around the dam. If that’s not feasible, build a hatchery instead. Want to log a forest, but worried about loss of downstream ecosystem services? Allow the harvest, with buffers and a few trees left behind to maintain essential services. Techno-optimism and overconfidence makes it easy to say yes and assume we can mitigate the impacts. Saying yes is much easier than saying no.

Unfortunately, these creative approaches often fail. Constructed wetlands fail to reproduce the essential hydrologic or biodiversity or other functions of natural wetlands. Fish passage fails to get enough fish up and down stream to keep populations viable. Hatcheries can’t sustain fisheries over the long term in the same way that habitat can. Even regulated logging can degrade downstream ecosystem services.  As a result, our good environmental intentions have paved a path to widespread degradation.

Sometimes it is due to a lack of effort or an unwillingness to spend the necessary funds, but often mitigation fails despite the best intentions. It is difficult to predict how natural systems will respond to perturbation, and recreating systems is even harder. The uncertainty of these allow-but-mitigate decisions is critical: we depend on functional natural systems, and failed mitigation risks our future. But our current approach allocates the risk of bad decisions to the environment. That is, when mitigation fails, the environment and the public, not project proponents, pay the price. There are very few consequences to the parties responsible for mitigation if they get it wrong.

Successful mitigation requires that mitigation associated with a regulatory approval be designed to effectively neutralize the damage, rather than simply to ensure that permits are issued and construction commences. Embracing some form of the precautionary principle might help, but we seem unwilling to put off decisions or simply deny projects with uncertain impacts. Iterative adaptive management with long term monitoring might help, but this approach often stumbles due to the difficulty in refashioning policies. If we’re going to keep relying on engineering or policy fixes to soften the blow (and all evidence suggests that we will), we need a better way to allocate environmental risk.

Fortunately, we have faced this problem in other contexts, and policy makes have developed productive ways to manage uncertainty. Applying these approaches more broadly might reallocate environmental risk away from the environment and the public and place it on project proponents. Such a reallocation internalizes the risk for project proponents, leads to better environmental outcomes, and should lead to better environmental decisionmaking.

For example, local governments often require developers who seek approval for new developments to provide needed public infrastructure improvements (e.g., roads, traffic control devices, sidewalks, water and sewer pipes, etc.) to reduce new congestion and defray the public costs of the new development. Because new development brings in higher use of public infrastructure, these improvements allow cities to ensure that developers pay more of the public costs of their developments. But if these improvements are poorly constructed or otherwise prone to failure, they can make the community worse off than before—more people, more expenses, and failed mitigation. This parallels the problems with failed environmental mitigation projects.

Local governments sometimes address this risk by requiring developers to post performance bonds. The developer purchases a performance bond from a third party, called the surety, a company that is “ensuring” the developer’s infrastructure work will meet relevant requirements. If the developer’s work fails to meet the requirements the government recovers funds from the surety which (ideally) are sufficient to bring the work up to par. Thus performance bonds allow developers to proceed with building their projects by guarding against the uncertainty of whether the required improvements will perform. The local government approving the project no longer bears the risk of the developer’s failure.

Financial assurances, in the form of bonds, insurance, or other mechanisms, could similarly play a more significant role in other areas of environmental law. New fish passage projects required for dams could carry insurance that would fund additional construction or even dam removal if functional fish passage proved impossible. Logging projects could require bonds that would pay for downstream remediation if efforts to mitigate impacts to the forest’s ecosystem services proved inadequate.

The idea of environmental performance bonds or other financial mechanisms to ensure performance is not new, but it has been vastly underutilized. For example, an assurance approach is also used in wetland mitigation and stream mitigation for Section 404 permitting under the Clean Water Act. Under regulations issued in 2008, 404 permits issued by the Corps of Engineers require financial assurance based on performance standards for newly constructed wetlands, which should ensure that the new wetlands adequately mitigate the wetlands lost through the permitted dredge and fill. The financial assurances, which may take the form of bonds, insurance, or other mechanisms, are generally only required for 5-10 years, however, a time frame too short to determine whether the new wetlands will actually achieve their mitigation requirements. Bonding for mine reclamation and financial assurances for hazardous waste treatment facility closure provide other examples, although such assurances are often insufficient to cover actual reclamation costs (sometimes by an order of magnitude).

We tend to assume success and proceed in face of uncertainty when other parties bear the risk of failure. We will also continue to get many mitigation decisions wrong. Thus, we need to reallocate the environmental risk away from the public and the environment. In this context, performance bonds or other financial assurances can reallocate the risk and increase the likelihood that mitigation will succeed, but this approach has been vastly underutilized to curb the current risk of loss in environmental permitting.

November 29, 2023

Immigration, Refugee & Citizenship Law eJournal, Vol. 23, No. 117

Edited by Kevin R. Johnson

Table of Contents

"Citizenship Outside the Courts"

-Catherine Y. Kim, Brooklyn Law School

"Border Enforcement as State-Created Danger"

-Jenny-Brooke Condon, Seton Hall Law School
-Lori A. Nessel, Seton Hall Law School

"When Migrants Mobilize Against Labor Exploitation: Evidence from the Italian Farmlands"

-Gemma Dipoppa, Brown University, Political Science

"Europeans’ Attitudes Towards Displaced Populations: Evidence From a Conjoint Experiment on Support for Temporary Protection"

-Michal Wiktor Krawczyk, Joint Research Center of the European Commission
-Andrea Blasco, Harvard University - Institute for Quantitative Social Science
-Tomasz Gajderowicz, University of Warsaw
-Marek Giergiczny, University of Warsaw

"An Economic Analysis of Internal and International Migration - Some Issues and Challenges"

-Nagesha Economics, Department of Economics

"Dignity. Reverence. Desecration."

-Duane Rudolph, University of San Francisco School of Law

"The Exclusion of Long-Term Australian Residents from Access to Voluntary Assisted Dying: A Critique of the 'Permanent Resident' Eligibility Criterion"

-Katrine Del Villar, Queensland University of Technology
-Lindy Willmott, Queensland University of Technology - Faculty of Law
-Ben White, Queensland University of Technology - Faculty of Law


"Citizenship Outside the Courts" Free Download
Catherine Y. Kim, Citizenship Outside the Courts, 57 U.C. Davis L. Rev. 253 (2023)
Brooklyn Law School, Legal Studies Paper No. 757

CATHERINE Y. KIM, Brooklyn Law School

The notion of citizenship lies at the core of our constitutional structure, determining possession of fundamental rights ranging from the rights to vote and hold public office to the right to enter and remain in the United States at all. Indeed, the entire constitutional project of self-governance rests on the premise of a defined group of “We the people.” Determining who qualifies as a citizen is thus central to our constitutional fabric. Prior literature has tacitly assumed that the federal judiciary has been the principal arbiter for deciding who qualifies for citizenship under our Constitution. This Article, however, demonstrates that political actors, rather than federal courts, have played the primary role in defining access to constitutional citizenship for members of historically marginalized groups, which raises significant normative implications.

This article excavates records surrounding three pivotal episodes from our nation’s history: the contestation of citizenship for Black Americans in the early to mid-nineteenth century; the denial of citizenship to Chinese Americans during the Exclusion Era from 1882 to 1943; and the stripping of citizenship from American women who married noncitizens prior to 1922. In each case, members of historically marginalized groups seeking to assert their constitutional citizenship found little recourse in the federal courts. Political institutions, however, independently wrestled to determine their citizenship status, in the absence of — or even in defiance of — federal court opinions. The historical record tells a story of judicial abdication, which allowed political actors to both narrow and expand access to constitutional citizenship.

The histories unearthed in this Article raise an urgent fundamental normative question: To what extent should constitutional citizenship be determined by political actors? This Article argues that citizenship is unique among constitutional provisions in ways that generally cast doubt on the legitimacy of efforts — political or otherwise — to deny it to members of marginalized communities. Moreover, the histories uncovered in this Article show that political institutions are not inherently more or less likely than the federal judiciary to do so. The experiences of Black Americans, Chinese Americans, and married American women thus suggest that the road to a more inclusive citizenship requires involvement by both: federal courts must play an active role in policing the constitutional floor for citizenship, but the political branches must remain free to expand constitutional citizenship beyond that floor, which may, in turn, generate a new consensus on what that floor should be.

"Border Enforcement as State-Created Danger" Free Download
Seton Hall Law School Legal Studies Research No. Forthcoming
St. John's Law Review , Vol. 96, No. 4, 2022

JENNY-BROOKE CONDON, Seton Hall Law School
LORI A. NESSEL, Seton Hall Law School

A woman seeks refuge at the U.S. border, but U.S. officials force her to wait for her asylum hearing in Mexico where a police officer later stalks and rapes her. A father and child suffer unbearable trauma after U.S. officials separate them under a policy aimed at deterring migration. A formerly healthy family loses a loved one to the coronavirus while forced to wait at an unsanitary, makeshift tent city in Mexico after fleeing for safety to the United States. For the people impacted by U.S. border policies, the southern border is a dangerous place—it is the site of rampant U.S.-created harm. Typically, legal and policy responses to refugee crises are framed by international and domestic legal obligations to provide safety and protect those fleeing persecution or humanitarian disasters. When states fail to meet migrants’ needs or thwart humanitarian processes, critiques logically focus on the government’s failure to meet its refugee, domestic law, and moral obligations. But this focus, though an essential part of countering the government’s illegal actions, insufficiently addresses the United States’ role in creating and inflicting harm.

Recently, however, in the context of the Trump Administration’s family separation policy, a district court recognized that the state-created danger theory of substantive due process protection may have a role to play in reckoning with the harm inflicted at the border—a development constitutional law scholars described as “groundbreaking.” The recognition of state-created danger theories in the family separation context thus raises the possibility of unlocking substantive due process protection in response to other forms of immigration enforcement that cause grievous and lasting harm.

Still, commentators have long lamented the state-created danger doctrine as narrow and impossible to meet. Nevertheless, over the last several decades, many state and federal courts have affirmed the doctrine, recognizing that the State has a duty not to expose people to conscious-shocking harm, even harm committed by third parties, if it is made possible or likely because of state action. The courts have recognized the theory as a possible constitutional restraint even if they have been reluctant to recognize circumstances qualifying as constitutional violations.

This Article draws upon this strand of substantive constitutional protection to help draw attention to and conceptualize new ways of challenging the United States’ state-created border harm. We argue that this body of law provides a strong theoretical foundation for holding government actors accountable for what one commentator described as a doctrine reserved “for truly egregious” government abuse, fitting match for excessive and punitive immigration enforcement that costs people their lives, safety, health, and security. At the very least, it is a starting place for broader normative conversations about the unlawful harm inflicted by the United States in the name of border control.

"When Migrants Mobilize Against Labor Exploitation: Evidence from the Italian Farmlands" Free Download

GEMMA DIPOPPA, Brown University, Political Science

Migrant labor exploitation is widespread in developed countries, which host growing populations of undocumented migrants. While denouncing by migrants is essential to prosecute exploitative employers, an undocumented community actively hiding from the state is unlikely to whistleblow. I consider an intervention giving migrant farmworkers in Italy information and incentives to report their racketeers. I leverage the intervention’s staggered (phased) rollout to study its effects in a difference-in-differences framework. The intervention empowered migrants to denounce their exploitation to the authorities; it increased the prosecution of criminal organizations, responsible for racketeering migrants; and it raised awareness among natives, who became more favorable towards immigration and parties supporting it. These findings highlight the conditions under which undocumented migrants can take political action for their socioeconomic advancement. Unlike other integration policies which have been shown to backlash, highlighting migrants’ vulnerability to exploitation might foster solidarity and more liberal immigration attitudes among natives.

"Europeans’ Attitudes Towards Displaced Populations: Evidence From a Conjoint Experiment on Support for Temporary Protection." Free Download

MICHAL WIKTOR KRAWCZYK, Joint Research Center of the European Commission
ANDREA BLASCO, Harvard University - Institute for Quantitative Social Science
TOMASZ GAJDEROWICZ, University of Warsaw
MAREK GIERGICZNY, University of Warsaw

Millions of people were forced to flee Ukraine after Russia’s invasion on February 24, 2022, one of the fastest displacements in decades. Citizens' response in EU countries (where most displaced Ukrainians arrived) has been considerably more positive than in past refugee crises. This study investigates several possible drivers of this difference. We conduct a large conjoint experiment in six EU Member States, eliciting willingness to provide temporary protection to hypothetical groups of future migrants whose characteristics we manipulate systematically. We find that all of the experimental variables make a difference. We observe a greater support for protecting groups consisting of relatively many children and many women rather than men. The region of origin and the religious affiliation also play a significant role. Finally, we see greater support for people fleeing a war rather than poverty or the adverse consequences of climate change. While all these effects are identified consistently across different groups of respondents (e.g., the respondent's religion played a limited role), effect sizes vary considerably between countries. Finally, randomly manipulate which aspect of temporary protection (social housing, access to the labour market) is emphasised in our communication to the participants. We find this manipulation to have a limited effect on the public support for the policy.

"An Economic Analysis of Internal and International Migration - Some Issues and Challenges" Free Download

NAGESHA ECONOMICS, Department of Economics

Migration has become one of the most important facts of globalization. Migration has a dynamic process that has significantly formed the global economies. Migration means the movement of skill, cultures, traditions, families and hopes that make up the life of a human being. There are several facts, political, economic and social that influences the movement of people and the choice of their destination. Internal migration, effects on the economies in the domestic countries, whereas, international migration affects on the economies of both the domestic and aboard. Such affects may be economic and non-economic. About 139 million internal migrants in India are found and globally there were an estimated 258 million migrants (World Economic Forum Report 2017). The macro-level causes for voluntary international migration are for example socio-economic reasons. Numerous causes are responsible for migratory movement. To mention some of them: land degradation, unequal distribution land, low productivity of agriculture, the decline in natural resources, unemployment, socio-economic factors, religious and miscellaneous factors etc..Population growth in the countries is substantially being affected by the migrant population. The migration poses challenges both internally and externally. The external challenge is to balance the need for foreign workers and human rights commitment for migrants who want economic opportunity and political freedom. Problems related to migration are challenging, such as Rapid Growth in Population, Challenges of High Labour Migration Cost, Inadequate Resource Allocation, and Lack of Skilled Human Resource. The paper deals with some issues and challenges of internal and international migration. The paper depended on secondary sources of information.

"Dignity. Reverence. Desecration." Free Download
Seton Hall Law Review, Vol. 53, No. 1173, 2023

DUANE RUDOLPH, University of San Francisco School of Law

This Article focuses on two cases from the Supreme Court of the United States dealing with sexual orientation—Bowers v. Hardwick (1989) and Boutilier v. Immigration and Naturalization Service (1967). Hardwick held that the Federal Constitution did not recognize a right to consensual intimacy among human beings of the same sex, and states could regulate the issue. Boutilier held that the federal government could order the deportation of non-heterosexual applicants for citizenship since they were deemed to have a “psychopathic personality, sexual deviate,” and their treatment as such did not offend the Federal Constitution.

The argument is that human dignity, as represented in Hardwick, Boutilier, and other landmark cases, is not only about the status of specific individuals and communities, but also about the reverence required by individuals and communities holding superior or supreme status. Those holding such status identify individuals and objects they revere and for whom (and which) they mandate reverence. Reverence, in this context, has two meanings—veneration and deference. Veneration and deference are selectively bestowed upon specific individuals, communities, and objects, and they are denied to others, especially those associated with the most vulnerable communities.

The absence or failure of dignity is not, as commentators often argue, humiliation, demeaning, or degradation of a human being, but desecration. Desecration is an experience, an attitude, and a response, which includes humiliation, demeaning, and degradation. Desecration is the unacceptable experience, by those holding superior or supreme status, of a perceived lack of reverence for hallowed individuals, objects, and ideals. Desecration is, further, an attitude and a response. As an attitude, desecration is the intuitive act of resistance by those assigned inferior status simply by being themselves. And as a response, desecration is what those possessing superior or supreme status do to those who, simply by existing as themselves, are deemed inferior.

"The Exclusion of Long-Term Australian Residents from Access to Voluntary Assisted Dying: A Critique of the 'Permanent Resident' Eligibility Criterion" Free Download
Monash University Law Review, Forthcoming

KATRINE DEL VILLAR, Queensland University of Technology
LINDY WILLMOTT, Queensland University of Technology - Faculty of Law
BEN WHITE, Queensland University of Technology - Faculty of Law

When state parliaments legalised voluntary assisted dying (VAD), they could not have anticipated that the requirement to be ‘an Australian citizen or permanent resident’ would be one of the main areas of controversy. This criterion of eligibility was intended to prevent people travelling from other countries to access VAD. However, because the term ‘permanent resident’ is not defined in the legislation, it has unfortunately prevented some long-term Australian residents from accessing VAD. We evaluate various definitions of ‘permanent resident’ and conclude that a plain English definition better suits the text, context and purpose of the VAD laws than the technical definitions found in migration or citizenship legislation. We then suggest policy and statutory reform to ameliorate some of the problems which have occurred in practice.