After two rounds of peer review, Indiana Law Professor Rob Fischman’s “Collaborative Governance Under the Endangered Species Act: An Empirical Analysis of Protective Regulations” has been judged one of the five best environmental law articles published in 2021. The Land Use and Environment Law Review will reprint the article, originally published in the Yale Journal on Regulation.
Fischman co-authored the article with conservation biologist Vicky Meretsky, from Indiana University’s O’Neill School of Public and Environmental Affairs and Environmental Protection Agency Senior Assistant Regional Counsel Matthew Castelli, JD’15
The reviewers selected Fischman’s work from more than 100 articles. This marks the second selection of one of Fischman’s works to be included in the annual publication, and the ninth time one of his articles has made it to the final review panel (including three of the past four years).
“The recognition for Professor Fischman’s work is well deserved,” said Dean Austen Parrish. “His record of scholarship on environmental law issues is impressive, and his collaborations with other scholars—including at the nation’s top-ranked O’Neill School—is a testament to the interdisciplinary work that makes a difference.”
“Collaborative Governance” examines the nearly 200 Endangered Species Act (ESA) protective regulations that tailor federal restrictions to the ecological and social circumstances of particular extinction threats. The researchers’ empirical study explored how those rules manifest collaborative governance, as well as the extent to which they promote imperiled species recovery. Castelli, Fischman, and Meretsky focused on provisions in which parties agree to curb activities in exchange for limited statutory liability. They found that three-quarters of protective regulations substitute practice-based limitations for difficult-to-detect, proximate-effect prohibitions.
In this way, collaborative governance transforms the ESA from a statute prohibiting certain outcomes (such as harm or jeopardy to a species) to a regulatory program implementing collaboratively crafted best practices, along the lines of pollution-control statutes. Paradoxically, this shift may improve the prospect for species recovery, even with regulations that are less stringent than the standard statutory prohibitions. These and related results support the authors’ recommended new mechanisms for crafting better regulations to improve conservation outcomes. The article also contributes evidence to test the collaborative governance concepts advanced in legal and policy scholarship.
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