Cost-benefit analysis (CBA) is usually treated as a monolith. In fact,the term can refer to a broad varietyof decision making practices, ranging from a qualitative comparison of pros and cons to a highly formalized and technical method grounded in economic theory that monetizes both costs and benefits, discounts to present net value, and locates the point at which the marginal benefits curve crosses the marginal costs curve.This article develops a typology that helps to conceptualize the multiple varieties of CBA along a formality - informality spectrum. It then uses this typology to analyze the treatment of CBA by the academic community and the three branches of the federal government. In academic and policy circles, the formal end of this spectrum generates far more controversy than the informal end. Additionally, the law (federal environmental statutes and case law) seems to favor informal over formal varieties of CBA. Nonetheless, the executive branch appears to be moving toward the formal end of the spectrum. Executive Orders and guidance documents direct agencies to conduct a highly formal mode of CBA. And anecdotal evidence suggests that agencies often go out of their way to give their CBAs the trappings of formality, sometimes in ways that lead to irrational results. I argue that 1) failing to distinguish between formal and informal CBA, and the many varieties in between, has led to muddled thinking and to misuses of CBA; and 2) the trend toward formality in the executive branch is out of step with Congress and the courts and may be counter productive, where, for example, it leads to what I call “false formality” — a corruption of CBA that can occur when agencies fail to clearly and consistently define where on the formality-informality spectrum a particular CBA falls.
Rethinking the Geography of Local Climate Action: Multilevel Network Participation in Metropolitan Regions
Hari M. Osofsky
As the United States and the world become increasingly urbanized, cities are a key site for addressing the problem of climate change. However, urban climate change action is not simply about local officials making decisions within their cities. In major U.S. urban areas, “local” involves multiple layers of government, including county and metro-regional entities. Moreover, many of the cities taking action on climate change also participate in and shape networks of local governments based at state, regional, national, and international levels.
This Article argues that multilevel climate change networks could be more effective by embracing this geography of local action and the pressing need to foster action by suburban cities. Most emissions take place in the suburban areas of metro regions, but these networks generally do not focus on the particular needs of different types of suburban cities.This Article provides a novel analysis of patterns of participation in climate change networks by cities in six major U.S. metropolitan regions—Atlanta, Chicago, Denver, New York, San Francisco, and the Twin Cities—as a basis for proposing practical strategies and areas for future research. It considers what types of cities participate in which networks and where stronger and weaker network interlinkages occur. The Article concludes that networks inadequately (1) differentiate by city and metro-regional type and (2) coordinate resources and strategies. It suggests ways in which networks could do so to maximize the number of cities participating in them and the participation level of those cities.
2015 Utah L. Rev. 173 | (Download PDF)
Treating the Blue Rash: Win-Win Solutions and Improving the Land Exchange Process
The history of public land laws from disposal to retention has created a fragmented ownership in the West. The school land grants led to a spotty pattern of state trust land ownership. This in turn creates conflict between the mandates of federal agencies — whose mandate is to protect environmentally sensitive areas — and state trust land authorities — whose mandate is to generate revenues for their beneficiaries. Both mandates promote important public interests.
Legislative land exchanges present potential win - win solutions for extricating state trust lands from within federal conservation areas, but they require a process that is too long and onerous. However, by improving the process for administrative exchanges Congress could promote more efficient exchanges and increase cooperation between federal and state trust land managers. Thus, Congress should provide funding for land exchanges involving environmentally sensitive areas. Additionally, Congress should amend FLPMA’s public interest and equal value requirements to inc entivize cooperation in the administrative land exchange process.
2015 Utah L. Rev. 241 | (Download PDF)
The Keystone XL Pipeline and the Dormant Commerce Clause: Would Action by Congress Preclude Adequate Environmental Regulation at the State Level?S. Shane Stroud
The Commerce Clause significantly limits the ability of States and localities to regulate or otherwise burden the flow of interstate commerce, but it does not elevate free trade above all other values. As long as a State does not needlessly obstruct interstate trade or attempt to place itself in a position of economic isolation, it retains broad regulatory authority to protect the health and safety of its citizens and the integrity of its natural resources.
2015 Utah L. Rev. 271 | (Download PDF)