Conventional wisdom describes environmental law as a field filled with rigid mandates. Many critiques of the field start with that rigidity as a key premise, and they allege that inflexibility is a central failing or, alternatively, a squandered virtue. Influential reform proposals follow from both allegations.
This Article demonstrates that these premises are often mistaken. Based on literature reviews and interviews with environmental-law practitioners, it shows that flexibility pervades environmental law, and regulators, regulated entities, and other interest groups routinely use negotiations to navigate that flexibility. Indeed, negotiation is so central to the field that one cannot understand environmental law, either in theory or practice, without understanding where negotiations occur, who participates, and what is up for discussion.
Appreciating the centrality of negotiation to environmental law has important benefits beyond descriptive accuracy. The importance of negotiation partially undercuts important critiques of environmental law and complicates the policy prescriptions to which those critiques lead. But that understanding also exposes problems—and potential reforms. Most importantly, environmental regulatory agencies are not handling negotiations with as much transparency, efficacy, or equity as they could and should.
* Harry D. Sunderland Professor of Law, University of California College of the Law, San Francisco. I thank David Adelman, Ming Hsu Chen, Robin Craig, Joe Dellapenna, Rob Glicksman, Tracy Hester, Blake Hudson, Seema Kakade, Katy Kuh, Jan Martinez, Anthony Moffa, Sanjay Narayan, Mike Pappas, Heather Payne, Melissa Powers, Zach Price, J.B. Ruhl, John Ruple, Jim Salzman, Reuel Schiller, Inara Scott, Jodi Short, Jonathan Skinner-Thompson, Dave Smith, David Takacs, and M’Leah Woodard for helpful comments, Hannah Holmes, John Miller, and Margaret Von Rotz for research assistance, the Stanford Law Review staff for careful editorial work, and the many interview subjects who volunteered their time and knowledge.