Rotting Under the Bridge

Victor Flatt — 2023-03-30

In response to legislative gridlock, Presidents have increasingly relied on policy made by administrative action, leading to major swings occurring when the political party of the presidency changes. These policy disputes have spilled into the third branch with a concomitant increase in legal challenges seeking judicial review of such actions. At the same time, since the 1980s, both Republican and Democratic administrations have made cost-benefit analysis the currency of federal rulemaking in the executive branch.

The combination of cost-benefit analysis requirements and increased litigation over rulemaking has increased the importance of economic and scientific justifications in both the original promulgation and any subsequent revision of administrative actions. False or misleading data in regulatory analysis, when unchecked, pollutes the regulatory process—and administrative decisions that rely on flawed data should be struck down as arbitrary and capricious.

Despite their importance to the administrative process, the actual economic and scientific analyses that underlie cost-benefit studies are often not at the front and center of regulatory action or of legal challenges. To more transparently understand the legality of administrative actions and thus to push for better regulatory actions, these underlying data should be better presented in agency actions. Though attorneys may not believe themselves well versed in the minutiae of such studies, underlying economic and scientific data should be analyzed closely in any legal rulemaking challenges.

In this Article, we use the economic analyses accompanying the Trump administration’s National Waters Protection Rule rulemaking under the Clean Water Act as a case study to demonstrate the importance of such data and administrative actions, and as a vehicle to discuss approaches to accommodate this procedural need moving forward.

The Next Generation of Environmental Monitoring

Eric Laschever — 2023-03-30

Federal and state agencies have begun using residual genetic information taken from the environment—environmental DNA or eDNA—to help make management and regulatory decisions. Environmental DNA can provide information from water, soil, or air samples about the living parts of ecosystems with unprecedented scope, in some cases providing broad surveys of the species present and in others pinpointing hard-to-find species. However, standards for analysis and interpretation have only recently begun to arise in the nascent field of eDNA analysis. As this new and valuable source of information begins to influence the implementation of environmental laws, we survey existing federal uses of eDNA and review federal information requirements relevant to natural resource management—in particular, under the data-hungry Endangered Species Act and National Environmental Policy Act. We find that some agencies are already using eDNA data, and, for the most part, these uses are likely to meet the legal requirements of the controlling statutes and regulations. Though legally acceptable, social factors influence the degree to which a technology becomes widespread in agency practice. We survey likely future scenarios for eDNA uptake and offer recommendations for driving broader adoption of this useful technology and enabling management and regulatory decisions grounded in eDNA as a data source.

Columbia Journal of Environmental Law

Rotting Under the Bridge

The Next Generation of Environmental Monitoring