Environmental Regulatory Nukes
Brigham Daniels, 𝘌𝘯𝘷𝘪𝘳𝘰𝘯𝘮𝘦𝘯𝘵𝘢𝘭 𝘙𝘦𝘨𝘶𝘭𝘢𝘵𝘰𝘳𝘺 𝘕𝘶𝘬𝘦𝘴, 2013 Uᴛᴀʜ L. Rᴇᴠ. 1550.
Regulatory nukes are regulatory tools that can prove extremely destructive to regulatory targets and have an element of political taboo surrounding their use. This Article discusses how and why Congress proliferates regulatory nukes. It explores the way regulatory nukes shape the contours of environmental law and define important aspects of various environmental enactments, including the Clean Air Act, the Clean Water Act, RCRA, CERCLA, and the Endangered Species Act, among others. The typical narratives we find surrounding environmental regulatory nukes, that either focus on regulatory Armageddon or dust settling on nukes in their silos, only tell part of the story. These narratives neglect the ways in which regulators use environmental regulatory nukes to prod, cudgel, and extract regulatory concessions from their potential targets. Seeing regulatory nukes in this light helps us better understand that regulators use these weapons not only by firming them but also by brandishing them and even merely possessing them.
2013 Utah L. Rev. 1550
Utah Law Review