Environmental Law at Columbia: Part 2

Challenging the Top-Down Hierarchy with Flexibility

The work of Professor Charles Sabel focuses on changing the way environmental problems and laws are approached. In place of familiar forms of "top-down" prescriptive rule-making, where federal and state governments create rules that every community must follow, Prof. Sabel and other colleagues are developing an "experimentalist" regulatory architecture in which local problem-solving units have discretion to craft locally tailored solutions. These local units must provide regular reports on their plans and progress to state and federal authorities, but they nevertheless have greater flexibility in addressing their own problems. In turn, the central authority provides overall coordination, ensures that minimum performance standards are met, and works to share useful information and strategies among local communities.

                The result is local experimentation within a structured framework of accountability and, in principle, the possibility of continuous refinement and readjustment of policies in response to new learning or changing environmental conditions. As an example, there is Chesapeake Bay and its oyster population. In cleaning up the Chesapeake Bay, the harvesting of oysters, which serve as filter feeders, must be taken into account. If oysters are over-harvested, the clean up will be less effective; thus there must be close coordination between local environmentalists and the local fisheries industry in developing policies.

                The work of Prof. Sabel is part of a $1 million grant from the William and Flora Hewlett Foundation. The three-year grant focuses on how American government and its citizens are turning to new and potentially more efficient ways to solve problems, from education to criminal justice to the environment. The project investigators also include Professors James Liebman and Michael Dorf. These professors, along with others from outside Columbia, have formed a team called the Project on Public Problem Solving (POPPs). The group's mission is to undertake detailed investigations to study new ways of solving problems in their areas of expertise and to diffuse their findings among colleagues and the general public.

                In the area of environmental law, the Hewlett grant primarily funds activities such as travel to conferences, field research, and research assistants. Funding may also be allocated for graduate students to do in-depth case studies of innovative ecosystem management and restoration projects in places like the Chesapeake Bay, the Everglades, and perhaps the Pacific Northwest.

                Ultimately, the work will lead to articles and possibly books. The grant is enabling the Law School to host a series of conferences for scholars, students, and practitioners. The first conference - titled Litigation in the Age of Environmental Collaboration: What Is Its Role? - took place on November 8, 2001.  Among other topics, panelists discussed the role of litigation in environmental law.

                Litigation is generally premised on the enforcement of fixed rules, though it also typically involves complex disputes over facts and what legal rules, if any, apply to a given set of facts. Experimentalist approaches, such as the kind Columbia faculty are investigating, tend to feature collaboration rather than adversarial proceedings, and provisional rather than fixed rules. These new approaches not only can produce more satisfactory solutions, but, with litigation avoided or reduced, less expensive ones.

                Recently, efforts have begun to realign environmental policy and to focus on integrated management of entire ecosystems and watersheds, a huge task.  It will demand collaboration among different agencies, such as federal, state, and local officials, and between governmental and non-governmental actors. No single agency or level of government can begin to restore the Everglades, but each player brings unique resources, expertise, and competencies to the table.