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History supports a presumption ballot – incentive policy has failed thanks to detail aversion regarding incentive structure

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History supports a presumption ballot – incentive policy has failed thanks to detail aversion regarding incentive structure

Esty 1 - Professor of Environmental Law and Policy, Yale School of Forestry & Environmental Studies and Yale Law School. (Daniel, “NEXT GENERATION ENVIRONMENTAL LAW: A RESPONSE TO RICHARD STEWART,” 29 Cap. U.L. Rev. 183, lexis
Professor Stewart's discussion of economic incentive systems again provides an excellent survey of the various market mechanisms that are available to pursue environmental goals. He assesses with great care the strengths and weaknesses of these tools and strategies, providing important insights on the contexts in which particular mechanisms are likely to be most effective. n43 Stewart's analysis of the reasons why economic incentive-based systems have penetrated so little into the environmental regulatory regime over the last twenty- five years is also illuminating. He notes that in too many cases, incentive strategies have been ineffective. n44 For example, environmental taxes have often been set at levels too low to change behavior. n45 He recognizes that competitiveness fears have often led jurisdictions to tread lightly in the market mechanism realm for fear of disadvantaging their own industries in increasingly competitive inter-jurisdictional markets. Stewart also observes that any change in policy creates losers and winners and that the losers often have a considerable incentive to resist new regulatory approaches. n46 In the environmental realm, ironically, the potential "losers" in a new system represent a set of rather odd bedfellows: businesses whose current emissions are "permitted" and not fully paid for through cost-internalizing market mechanisms; environmental groups who are invested in campaigns that depend on the current portfolio of problems to attract public support; agency bureaucrats whose skill sets and relative power derives from the current structure of harms and regulatory approaches; and congressional committee members and staffs whose capacity to generate media attention and public interest is [*191] a function of their established expertise within the existing system. n47

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