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Summers V. Earth Island Institute Rejects Probabilistic Standing, But A 'Realistic Threat' Of Harm Is A Better Standing Test, Bradford Mank
Summers V. Earth Island Institute Rejects Probabilistic Standing, But A 'Realistic Threat' Of Harm Is A Better Standing Test, Bradford Mank
Faculty Articles and Other Publications
In Summers v. Earth Island Institute, the Supreme Court recently rejected Justice Breyer’s dissenting opinion’s proposed test for organizational standing based upon the statistical probability that some of an organization’s members will likely be harmed in the near future by a defendant’s allegedly illegal actions. Implicitly, however, the Court had recognized some form of probabilistic standing in Friends of the Earth v. Laidlaw, which found standing where plaintiffs avoid recreational activities because of “reasonable concerns” about future health injuries from pollution; Summers did not overrule Laidlaw. There is an inherent tension between the Summers and Laidlaw decisions. This Article applies …
Should States Have Greater Standing Rights Than Ordinary Citizens?: Massachusetts V. Epa's New Standing Test For States, Bradford Mank
Should States Have Greater Standing Rights Than Ordinary Citizens?: Massachusetts V. Epa's New Standing Test For States, Bradford Mank
Faculty Articles and Other Publications
In Massachusetts v. EPA, 127 S. Ct. 1438 (2007), the Supreme Court held that carbon dioxide (CO²) and other greenhouse gases (GHGs) are air pollutants within the meaning of the Clean Air Act (CAA). Although its decision on the merits is important, the Court's conclusion that Massachusetts had standing to file suit because states are entitled to more lenient standing criteria may have a greater impact in the long-term on legal doctrine. In Massachusetts, the Supreme Court for the first time clearly gave greater standing rights to states than ordinary citizens. The Court, however, failed to explain to what extent …
Are Public Facilities Different From Private Ones?: Adopting A New Standard Of Review For The Dormant Commerce Clause, Bradford Mank
Are Public Facilities Different From Private Ones?: Adopting A New Standard Of Review For The Dormant Commerce Clause, Bradford Mank
Faculty Articles and Other Publications
On September 26, 2006, the Supreme Court granted certiorari in United Haulers Association Inc. v. Oneida-Herkimer Solid Waste Management Authority to decide the important issue of whether local governments may require that all waste in their jurisdiction be sent to a publicly-owned waste facility and thereby discriminate equally against both local and out-of-state private firms. The dormant Commerce Clause doctrine (DCCD) grants federal courts authority to invalidate state/local laws that discriminate against foreign goods/firms. The Court has adopted an overly broad per se test that invalidates any local law that theoretically discriminates against foreign firms, even if there is no …
Is A Textualist Approach To Statutory Interpretation Pro-Environmentalist?: Why Pragmatic Agency Decisionmaking Is Better Than Judicial Literalism, Bradford Mank
Faculty Articles and Other Publications
This Article provides both anecdotal evidence and a more theoretical argument for why textualist statutory interpretation is not the best approach to address environmental. issues.
Out-Of-State Trash: Solid Waste And The Dormant Commerce Clause, Bradford Mank
Out-Of-State Trash: Solid Waste And The Dormant Commerce Clause, Bradford Mank
Faculty Articles and Other Publications
America faces a garbage crisis. Many cities and states are rapidly depleting their landfill capacity for ordinary municipal solid waste.The "Not In My Back Yard" (NIMBY) syndrome hinders regional and national solutions to the solid waste problem. This Article examines to what extent local communities may exclude solid waste from out-of-state sources without violating the Commerce Clause.