Digital Commons Network^™

Back To The Future: Creating A Bipartisan Environmental Movement For The 21st Century, David M. Uhlmann

Articles

With a contentious presidential election looming amidst a pandemic, economic worries, and historic protests against systemic racism, climate action may seem less pressing than other challenges. Nothing could be further from the truth. To prevent greater public health threats and economic dislocation from climate disruption, which will disproportionately harm Black Americans, people of color, and indigenous people, this Comment argues that we need to restore the bipartisanship that fueled the environmental movement and that the fate of the planet—and our children and grandchildren—depends upon our collective action.

Indeconstructible: The Triumph Of The Environmental “Administrative State”, Stephen M. Johnson

Articles

Shortly after the 2017 Presidential inauguration, a senior advisor to the President proclaimed that a top priority of the Administration would be the “deconstruction of the administrative state.” A primary target of the Administration’s deconstruction efforts was the U.S. Environmental Protection Agency (“EPA”) and federal environmental regulations.

While the President can use a variety of tools, including the appointment power, budget power, treaty power, and executive orders, to influence the manner in which the EPA and other agencies interpret and enforce laws, the President has very little power to unilaterally “deconstruct the administrative state.” The “administrative state” is a creation …

Standing, On Appeal, Amy J. Wildermuth, Lincoln L. Davies

Articles

Scholarly criticism of standing doctrine is hardly new, but a core problem with standing jurisprudence remains overlooked: How do parties challenging administrative decisions factually prove that they have standing on appeal when appellate courts normally do not conduct fact finding? This Article attempts to tackle that problem. It combines a four-pronged normative procedural justice model with an empirical study of appellate cases to conclude that (1) although this issue arises in a relatively narrow set of cases, the number of such cases is growing and (2) existing judicial solutions to the problem are deficient. Thus, after exploring several options — …

Competition: The Next Generation Of Environmental Regulation?, Stephen M. Johnson

Articles

Risk. In the environmental arena, when determining whether to regulate or how to regulate activities or products, policymakers must begin by assessing the level of risk presented by the activity or product. Although essential information about the level of risk is often in the hands of the actors or producers, they may be reluctant to provide this information to policymakers, unless they are compelled to do so, because the disclosure of information about the risk presented by their activity or product could reduce demand for their activity or product, increase potential liability for harm caused by their activity or product, …

Ossification’S Demise? An Empirical Analysis Of Epa Rulemaking From 2001-2005,, Stephen M. Johnson

Articles

For more than a decade, academics have suggested agencies are increasingly avoiding notice and comment rulemaking because the process has become “ossified” by procedures imposed by Congress, courts and the Executive Branch, and because the rules ultimately issued by agencies are frequently challenged. This article reviews the rules the United States Environmental Protection Agency (EPA) issued between 2001 and 2005 to determine the validity of those criticisms. With regard to judicial challenges, 75% of EPA’s most important (“economically significant”) rules issued between 2001 and 2005 were challenged in court. This is consistent with the anecdotal claims of former EPA Administrators …

Economics V. Equity Ii: The European Experience, Stephen M. Johnson

Articles

Lawmakers in the European Union and its member states, like their counterparts in the United States, increasingly are using economic tools to protect the environment while reducing their focus on command and control regulation. The reliance on economic approaches to environmental protection may disproportionately impact low income and minority communities. Although evidence of environmental injustice in Europe is not as strong as in the United States, several recent studies demonstrate that traditional environmental protection measures in Europe have disproportionately funneled pollution to low income communities. Economic-based environmental measures can only exacerbate that trend.

Economics V. Equity: Do Market-Based Environmental Reforms Exacerbate Environmental Injustice?, Stephen M. Johnson

Articles

For almost three decades, the federal government and state governments have addressed environmental problems primarily through "command and control" regulation. Under this traditional approach, the federal government establishes uniform national pollution limits ("command") that the federal or state governments impose on individual polluters through a system of permits or other controls. However, as the command and control approach has eliminated many of the most prolific sources of pollution, the incremental cost of cleaning up the remaining pollution has risen dramatically, and command and control regulation has become politically less attractive. In addition, command and control regulation may be too rigid …