Daniel C. Esty, “Red Lights to Green Lights: From 20th Century Environmental Regulation to 21st Century Sustainability” in “Environmental Law Review,” 47(1) (2017)

March 15, 2017

Twentieth century environmental protection delivered significant improvements in America’s air and water quality and led companies to manage their waste, use of toxic substances, and other environmental impacts with much greater care. But the pace of environmental progress has slowed as the limits of the command-and-control regulatory model have been reached. This Article calls for a new 21st century sustainability strategy that overcomes the ideological, structural, and operational issues that have led to political gridlock and blocked environmental policy reform. It makes the case for a transformed legal framework that prioritizes innovation, requires payment of “harm charges” and an “end to externalities,” and shifts toward market-based regulatory strategies that expand business and individual choices rather than government mandates. It further proposes a systems approach to policy that acknowledges tradeoffs across competing aims, integrates economic and energy goals with environmental aspirations, and emphasizes on-the-ground pollution control and natural resource management results. This new approach would go beyond the “red lights” and stop signs of the existing framework of environmental law that centers on telling people what hey cannot do, to a broader structure of incentives and “green lights” that would engage the public and the business world in environmental problem solving. Building on the changed circumstances of the 21st century, including the extensive breakthroughs in information and communications technologies, the transformation envisioned would permit a shift in the “environmental possibility frontier” and a lighter and stronger structure of pollution control and resource management that could appeal to Americans from all parts of the political spectrum, making real reform possible after decades of deadlock. 

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