Hirsch Publishes Environmental Law Article

July 13, 2004

Professor of Law Dennis D. Hirsch has published an article entitled “Lean and Green: Environmental Law and Policy and the Flexible Production Economy.” It appears at 79 Indiana Law Journal 611 (2004).

“Driven by global competition, American manufacturing is undergoing a fundamental transformation from mass production to "flexible" or "lean" production,” said Hirsch. “Mass production is premised on the stable, high volume manufacture of identical goods. Flexible production engages all workers in a system wide search for continuous improvement and is characterized by constant innovation and rapid change to products and processes. For example, Intel Corporation, a flexible producer, averages forty five process changes per year.”

Hirsch’s article identifies two implications of this industrial shift for environmental law and policy, particularly the Clean Air Act (CAA). First, flexible production’s continuous improvement culture provides an ideal platform for pollution prevention and should enable facilities adopting it to achieve improved environmental performance. Second, the rapid change that characterizes the new production method is in tension with Clean Air Act provisions, originally designed for mass production plants, that require facilities to complete a months-long permitting process prior to undertaking each individual change.

The article argues that major recent environmental policy initiatives can be understood, in part, as early attempts to adapt the regulatory system to the new conditions of flexible production. Experimental Clinton Administration programs replaced traditional permitting with plant-wide emission caps. These innovative permits allowed flexible production facilities to make changes without delay, so long as their overall air emissions remained within the limit. These programs set the cap at a level more stringent than that which traditional permitting would have required, thereby both providing flexible producers with regulatory speed and pushing them to achieve better performance. Recent Bush Administration rules also offer plant-wide caps. However, they do not require more stringent performance and may, in fact, allow pollution increases. They fail to capitalize on flexible production’s green potential.

“While the Clinton Administration initiatives represent a better approach, they are far from perfect,” Hirsch explains. “In the article, I spell out specific legal and policy recommendations that would strengthen this approach and point the way towards an effective regulatory strategy for the coming era of flexible production.”

Hirsch has been a member of the Capital University Law School Faculty since 1998. He teaches Environmental Law, Advanced Environmental Law and Property. Hirsch is co-author of the environmental law text book Environmental Law Practice: Problems and Exercises for Skills Development (2nd ed., Carolina Academic Press, 2003). He also is Chair of the American Bar Association, Section of Environment, Energy and Resources, Committee on Innovation, Management Systems and Trading. The Committee is a 120-member group of government, private, NGO and academic lawyers that focuses on alternative approaches to environmental regulation. The Committee examines the legal and policy issues that these innovative programs raise and seeks to educate the environmental, energy and resources law bars on these subjects.