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40 Envtl. L. [i] (2010)

handle is hein.journals/envlnw40 and id is 1 raw text is: ENVIRONMENTAL LAW Lewis & Clark Law School VOLUME 40 WINTER 2010 NUMBER 1 FORTIETH ANNIVERSARY ISSUE TRIBUTE Words from the First Editor in Chief ..................................... Ann Morgenstern Reynolds FOREWORD Ashes and the Phoenix .......................................................... imi Ronald B. Lansing ARTICLES Capping Carbon .............................................................. David M Driesen This Article discusses cap setting for a cap-and-trade program, a key problem in pending legislation addressing global climate disruption. While the literature often suggests that trading automatically solves the problems associated with Best Available Technology (BAT) regulation, regulators often use a BAT approach to setting caps for trading programs. This Article examines neglected normative and practical choices between BAT, cost-benefit, and effects-based cap setting in the trading context. It also shows that cap setting exercises can get bogged down in the same sort of lengthy administrative and judicial processes that delayed and weakened BAT regulation, and discusses ways of avoiding these problems in climate legislation. Climate Exceptionalism.......................................................... 53 John Cop eland Nagle The Supreme Court appears to have rejected climate exceptionalism in Massacusetts v. EPA, but many people continue to emphasize the differences between climate change and traditional air pollution and question whether the entire pollution paradigm is appropriate for responding to climate change. This Article identifies the ways in which climate change is similar to other air pollution problems and the ways in which it is different. The broader understanding of pollution as a phenomenon that exists outside of environmental law shows why