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- Faculty Scholarship (7)
- The Future of Natural Resources Law and Policy (Summer Conference, June 6-8) (4)
- Law Faculty Scholarly Articles (3)
- Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6) (3)
- The Federal Land Policy and Management Act (Summer Conference, June 6-8) (2)
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- The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4) (2)
- Best Management Practices (BMPs): What? How? And Why? (May 26) (1)
- Boundaries and Water: Allocation and Use of a Shared Resource (Summer Conference, June 5-7) (1)
- Challenging Federal Ownership and Management: Public Lands and Public Benefits (October 11-13) (1)
- FLPMA Turns 40 (October 21) (1)
- Faculty Articles (1)
- Georgetown Law Faculty Publications and Other Works (1)
- Getting a Handle on Hazardous Waste Control (Summer Conference, June 9-10) (1)
- Groundwater: Allocation, Development and Pollution (Summer Conference, June 6-9) (1)
- Navigating the Future of the Colorado River (Martz Summer Conference, June 8-10) (1)
- Opportunities and Obstacles to Reducing the Environmental Footprint of Natural Gas Development in Uintah Basin (October 14) (1)
- Outdoor Recreation: Promise and Peril in the New West (Summer Conference, June 8-10) (1)
- Proceedings of the Sino-American Conference on Environmental Law (August 16) (1)
- Scholarly Works (1)
- The Federal Impact on State Water Rights (Summer Conference, June 11-13) (1)
- The Promise and Peril of Oil Shale Development (February 5) (1)
- Water Negotiation Workshop (June 4-5) (1)
- Water Quality Control: Integrating Beneficial Use and Environmental Protection (Summer Conference, June 1-3) (1)
- Water, Oil and Gas: Nuts and Bolts of Oil and Gas Leases, Surface Use Agreements, and Water Rights for Non-Oil and Gas Attorneys (September 26) (1)
- Western Water Law, Policy and Management: Ripples, Currents, and New Channels for Inquiry (Martz Summer Conference, June 3-5) (1)
- Western Water: Expanding Uses/Finite Supplies (Summer Conference, June 2-4) (1)
Articles 1 - 30 of 41
Full-Text Articles in Law
The Clean Air Act Of 1963: Postwar Environmental Politics And The Debate Over Federal Power, Adam D. Orford
The Clean Air Act Of 1963: Postwar Environmental Politics And The Debate Over Federal Power, Adam D. Orford
Scholarly Works
This Article explores the development of the Clean Air Act of 1963, the first law to allow the federal government to fight air pollution rather than study it. The Article focuses on the postwar years (1945-1963) and explores the rise of public health medical research, cooperative federalism, and the desire to harness the powers of the federal government for domestic social improvement, as key precursors to environmental law. It examines the origins of the idea that the federal government should "do something" about air pollution, and how that idea was translated, through drafting, lobbying, politicking, hearings, debate, influence, and votes, …
The Missing Regulatory State: Monitoring Businesses In An Age Of Surveillance, Rory Van Loo
The Missing Regulatory State: Monitoring Businesses In An Age Of Surveillance, Rory Van Loo
Faculty Scholarship
An irony of the information age is that the companies responsible for the most extensive surveillance of individuals in history—large platforms such as Amazon, Facebook, and Google—have themselves remained unusually shielded from being monitored by government regulators. But the legal literature on state information acquisition is dominated by the privacy problems of excess collection from individuals, not businesses. There has been little sustained attention to the problem of insufficient information collection from businesses. This Article articulates the administrative state’s normative framework for monitoring businesses and shows how that framework is increasingly in tension with privacy concerns. One emerging complication is …
The Depravity Of The 1930s And The Modern Administrative State, Gary S. Lawson, Steven Calabresi
The Depravity Of The 1930s And The Modern Administrative State, Gary S. Lawson, Steven Calabresi
Faculty Scholarship
Gillian Metzger’s 2017 Harvard Law Review foreword, entitled 1930s Redux: The Administrative State Under Siege, is a paean to the modern administrative state, with its massive subdelegations of legislative and judicial power to so-called “expert” bureaucrats, who are layered well out of reach of electoral accountability yet do not have the constitutional status of Article III judges. We disagree with this celebration of technocratic government on just about every level, but this Article focuses on two relatively narrow points.
First, responding more to implicit assumptions that pervade modern discourse than specifically to Professor Metzger’s analysis, we challenge the normally unchallenged …
The Never-Ending Assault On The Administrative State, Jack M. Beermann
The Never-Ending Assault On The Administrative State, Jack M. Beermann
Faculty Scholarship
This Article is an exploration of the twists and turns of the never-ending assault on the administrative state. Without attempting to resolve all of the separation of powers controversies that have existed since the beginning of the Republic, this Article examines and analyzes the fundamental constitutional challenges to the administrative state as well as the more peripheral constitutional difficulties involving the administrative state and the nonconstitutional legal challenges that have arisen over the decades. In my view, the legal and political arguments made in favor of major structural changes to the administrative state do not provide sufficient normative bases for …
Slides: Flpma In Its Historical Context, John D. Leshy
Slides: Flpma In Its Historical Context, John D. Leshy
FLPMA Turns 40 (October 21)
Presenter: John D. Leshy, Sunderland Distinguished Professor of Law Emeritus, U.C. Hastings College of the Law
36 slides
This session traces the history of FLPMA including, among other things, its legislative, administrative, and historical antecedents, including for example, the Public Land Law Review Commission’s 1970 report, One Third of Our Nation’s Lands. It then considers FLPMA’s unique public lands policies and requirements and how they are reflected in the BLM’s management of public lands today.
See: https://www.nps.gov/parkhistory/online_books/blm/history/contents.htm
Completing The Energy Innovation Cycle: The View From The Public Utility Commission, Jonas J. Monast, Sarah K. Adair
Completing The Energy Innovation Cycle: The View From The Public Utility Commission, Jonas J. Monast, Sarah K. Adair
Faculty Scholarship
Achieving widespread adoption of innovative electricity generation technologies involves a complex system of research, development, demonstration, and deployment, with each phase then informing future developments. Despite a number of non-regulatory programs at the federal level to support this process, the innovation premium—the increased cost and technology risk often associated with innovative generation technologies—creates hurdles in the state public utility commission (“PUC”) process. These state level regulatory hurdles have the potential to frustrate federal energy goals and prevent the learning process that is a critical component to technology innovation. This Article explores how and why innovative energy technologies face challenges in …
Agenda: Water, Oil And Gas: Nuts And Bolts Of Oil And Gas Leases, Surface Use Agreements, And Water Rights For Non-Oil And Gas Attorneys, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment, Rocky Mountain Land Use Institute (Denver, Colo.), Colorado Bar Association. Natural Resources & Energy Section
Agenda: Water, Oil And Gas: Nuts And Bolts Of Oil And Gas Leases, Surface Use Agreements, And Water Rights For Non-Oil And Gas Attorneys, University Of Colorado Boulder. Getches-Wilkinson Center For Natural Resources, Energy, And The Environment, Rocky Mountain Land Use Institute (Denver, Colo.), Colorado Bar Association. Natural Resources & Energy Section
Water, Oil and Gas: Nuts and Bolts of Oil and Gas Leases, Surface Use Agreements, and Water Rights for Non-Oil and Gas Attorneys (September 26)
This third program in the Water, Oil, and Gas 101 series was designed to provide those who don’t practice in the area with essential information regarding leases, surface use agreements, siting considerations for oil and gas facilities, the resolution of disputes before the Colorado Oil and Gas Conservation Commission (COGCC), the ins and outs of nontributary and produced nontributary ground water, and water rights as an asset.
Program topics include:
- Oil and Gas Leases
- Surface Use Agreements (SUAs)
- Government’s Role in Authorizing Locations for Oil and Gas Development
- Technical Aspects of Nontributary and Produced Nontributary Ground Water
- Produced Nontributary Ground …
Slides: Smart Fallowing: New Strategies In Ag Forbearance, Bonnie Colby
Slides: Smart Fallowing: New Strategies In Ag Forbearance, Bonnie Colby
Navigating the Future of the Colorado River (Martz Summer Conference, June 8-10)
Presenter: Dr. Bonnie Colby, Department of Agriculture & Resource Economics, University of Arizona
34 slides
Slides: Arctic Ecosystem Services Measurement And Modeling Project, Eric Biltonen
Slides: Arctic Ecosystem Services Measurement And Modeling Project, Eric Biltonen
Best Management Practices (BMPs): What? How? And Why? (May 26)
Presenter: Eric Biltonen, PhD, Environment Economist, Houston Advanced Research Center
8 slides
State Enforcement Of Federal Law, Margaret H. Lemos
State Enforcement Of Federal Law, Margaret H. Lemos
Faculty Scholarship
Federal law is enforced through a combination of public and private efforts. Virtually all federal civil statutes vest enforcement authority in a federal agency; some also create private rights of action that permit private parties to sue to enforce federal law. Decades of commentary on the choice between public and private enforcement have generated a remarkably stable set of arguments about the strengths and weaknesses of each type. But the conventional wisdom tells only part of the story, as it ignores variations within the category of public enforcement. In fact, there are two distinct types of public enforcement. Many federal …
Slides: Assessing Opportunities And Barriers To Reducing The Environmental Footprint Of Oil And Gas Development In Utah, Douglas Jackson-Smith, Lorien Belton, Brian Gentry, Gene Theodori
Slides: Assessing Opportunities And Barriers To Reducing The Environmental Footprint Of Oil And Gas Development In Utah, Douglas Jackson-Smith, Lorien Belton, Brian Gentry, Gene Theodori
Opportunities and Obstacles to Reducing the Environmental Footprint of Natural Gas Development in Uintah Basin (October 14)
Presenter: Dr. Douglas Jackson-Smith, Utah State University--Logan Campus
37 slides
Slides: Chapter 7 Of The Commission Report, David L. Bernhardt
Slides: Chapter 7 Of The Commission Report, David L. Bernhardt
The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)
Presenter: David L. Bernhardt, Partner, Brownstein Hyatt Farber Schreck (Washington, DC) and former Solicitor for U.S. Department of the Interior
14 slides
Slides: Why Public Lands? A Question Not Addressed 40 Years Ago, Thomas Michael Power
Slides: Why Public Lands? A Question Not Addressed 40 Years Ago, Thomas Michael Power
The Past, Present, and Future of Our Public Lands: Celebrating the 40th Anniversary of the Public Land Law Review Commission’s Report, One Third of the Nation’s Land (Martz Summer Conference, June 2-4)
Presenter: Thomas Michael Power, Consulting Economist, Power Consulting; Research Professor and Professor Emeritus, Economics Department, University of Montana (Missoula, MT)
17 slides
Slides: Costs And Benefits Of Oil Shale Development, James T. Bartis
Slides: Costs And Benefits Of Oil Shale Development, James T. Bartis
The Promise and Peril of Oil Shale Development (February 5)
Presenter: James T. Bartis, Senior Policy Researcher, Rand Corporation
21 slides
Null Preemption, Jonathan R. Nash
Null Preemption, Jonathan R. Nash
Faculty Articles
This Article proceeds as follows. In Part I, I introduce the concept of null preemption. I discuss in greater detail the case of regulation of motor vehicle tailpipe greenhouse-gas emissions as a case study of null preemption. In Part II, I explore the contours of null preemption, and then describe, and distinguish among, several paradigmatic settings in which null preemption may arise.
In Part III, I consider the normative case for null preemption. I conclude that the case is narrow. I also consider concerns of institutional choice and argue that even those who generally defend agency preemption of state law …
Slides: Transboundary Solutions: A Water Trust, Policy, And Environmental Flows For The Colorado River Delta, Jennifer Pitt
Slides: Transboundary Solutions: A Water Trust, Policy, And Environmental Flows For The Colorado River Delta, Jennifer Pitt
Western Water Law, Policy and Management: Ripples, Currents, and New Channels for Inquiry (Martz Summer Conference, June 3-5)
Presenter: Jennifer Pitt, Environmental Defense Fund, Boulder, CO
26 slides
Slides: The Urbanizing West: Limits To Water, Limits To Growth, Lora A. Lucero
Slides: The Urbanizing West: Limits To Water, Limits To Growth, Lora A. Lucero
Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6)
Presenter: Lora A. Lucero, AICP, American Planning Association
18 slides
Slides: Water Needs And Strategies For A Sustainable Future, Shaun Mcgrath
Slides: Water Needs And Strategies For A Sustainable Future, Shaun Mcgrath
Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6)
Presenter: Shaun McGrath, Program Director, Western Governors’ Association
25 slides
Bridging The Governance Gap: Strategies To Integrate Water And Land Use Planning, Sarah Bates Van De Wetering, University Of Montana (Missoula). Public Policy Research Institute
Bridging The Governance Gap: Strategies To Integrate Water And Land Use Planning, Sarah Bates Van De Wetering, University Of Montana (Missoula). Public Policy Research Institute
Shifting Baselines and New Meridians: Water, Resources, Landscapes, and the Transformation of the American West (Summer Conference, June 4-6)
16 pages.
Includes bibliographical references
"2007"
"Collaborative Governance Report 2"
Executive Preemption, Ernest A. Young
Executive Preemption, Ernest A. Young
Faculty Scholarship
Preemption of state regulatory authority by national law is the central federalism issue of our time. Most analysis of this issue has focused on the preemptive effects of federal statutes. But as Justice White observed in INS v. Chadha,“[f]or some time, the sheer amount of law . . . made by the [administrative] agencies has far outnumbered the lawmaking engaged in by Congress through the traditional process.” Whether one views this development as a “bloodless constitutional revolution” or as a necessary “renovation” of the constitutional structure in response to the complexity of modern society, the advent of the administrative state …
The Other Delegate: Judicially Administered Statutes And The Nondelegation Doctrine, Margaret H. Lemos
The Other Delegate: Judicially Administered Statutes And The Nondelegation Doctrine, Margaret H. Lemos
Faculty Scholarship
The nondelegation doctrine is the subject of a vast and everexpanding body of scholarship. But nondelegation literature, like nondelegation law, focuses almost exclusively on delegations of power to administrative agencies. It ignores Congress's other delegate-the federal judiciary.
This Article brings courts into the delegation picture. It demonstrates that, just as agencies exercise a lawmaking function when they fill in the gaps left by broad statutory delegations of power, so too do courts. The nondelegation doctrine purports to limit the amount of lawmaking authority Congress can cede to another institution without violating the separation of powers. Although typically considered only with …
Slides: Forests And Grasslands, Federico Cheever
Slides: Forests And Grasslands, Federico Cheever
The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)
Presenter: Professor Federico Cheever, University of Denver Sturm College of Law
30 slides
Agenda: The Future Of Natural Resources Law And Policy, University Of Colorado Boulder. Natural Resources Law Center, Rocky Mountain Mineral Law Foundation
Agenda: The Future Of Natural Resources Law And Policy, University Of Colorado Boulder. Natural Resources Law Center, Rocky Mountain Mineral Law Foundation
The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)
The Natural Resources Law Center's 25th Anniversary Conference and Natural Resources Law Teachers 14th Biennial Institute provided an opportunity for some of the best natural resources lawyers to discuss future trends in the field. The conference focused on the larger, cross-cutting issues affecting natural resources policy. Initial discussions concerned the declining role of scientific resource management due to the increased inclusion of economic-cost benefit analysis and public participation in the decision-making process. The effectiveness of this approach was questioned particularly in the case of non-market goods such as the polar bear. Other participants promoted the importance of public participation and …
Slides: Tribal Perspectives On Natural Resource Policy, Donald Wharton
Slides: Tribal Perspectives On Natural Resource Policy, Donald Wharton
The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)
Presenter: Donald Wharton, Native American Rights Fund
16 slides
The Growing Influence Of Tort And Property Law On Natural Resources Law: Case Studies Of Coal Bed Methane Development And Geologic Carbon Sequestration, Alexandra B. Klass
The Growing Influence Of Tort And Property Law On Natural Resources Law: Case Studies Of Coal Bed Methane Development And Geologic Carbon Sequestration, Alexandra B. Klass
The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)
19 pages.
"Alexandra B. Klass, Associate Professor of Law, University of Minnesota Law School"
Self-Regulation For Safety And Security: Final Minutes Or Finest Hour?, Douglas C. Michael
Self-Regulation For Safety And Security: Final Minutes Or Finest Hour?, Douglas C. Michael
Law Faculty Scholarly Articles
The terrorist attacks of September 11, 2001, and the accounting and auditing crisis later caused by the Enron and Worldcom scandals of that same year, created a great sense of insecurity in many Americans. In this Article, I analyze the federal government's response to crisis. I first define what a crisis is: a sudden, existential threat to which the entity has insufficient resources to respond. I then explain how regulation for safety and security is unique in two aspects: perceptions matter, and the assistance of the regulated entities is essential. I proceed by describing and analyzing the regulatory history and …
Limiting Raich, Randy E. Barnett
Limiting Raich, Randy E. Barnett
Georgetown Law Faculty Publications and Other Works
On Monday, November 29th, 2004, at 10:30 a.m., I rose to argue the case of Gonzales v. Raich in the Supreme Court on behalf of Angel Raich and Diane Monson. On Monday, June 6th, 2005, at 10:00 a.m., the Court announced its decision. Even today it is painful to read the opinions in the case. I am saddened for my clients, and the thousands like them, whose suffering is alleviated by the use of cannabis for medical purposes, as recommended by their physicians and permitted by the laws of their states, but who are nevertheless considered criminals by the federal …
Agenda: Water Negotiation Workshop, University Of Colorado Boulder. Natural Resources Law Center, William & Flora Hewlett Foundation
Agenda: Water Negotiation Workshop, University Of Colorado Boulder. Natural Resources Law Center, William & Flora Hewlett Foundation
Water Negotiation Workshop (June 4-5)
"Sponsored by: The Natural Resources law Center of the University of Colorado Law School; Funding provided by: The William and Flora Hewlett Foundation."
"Facilitators: Lucy Moore and Steve Snyder."
"June 4 and 5, 2003, Community House, Chautauqua Park, Boulder, Colorado."
Contents:
Agenda -- Roster of workshop participants -- Biographies of workshop participants -- Maps of Klamath basin -- Key water-related events in the upper Klamath basin -- Federal-state decisionmaking on water : applying lessons learned / David J. Hayes -- Turbulence in the Klamath River basin / Sharon Levy
Outdoor Recreation And Water Development: The National Recreation Lakes Study, Bruce R. Brown
Outdoor Recreation And Water Development: The National Recreation Lakes Study, Bruce R. Brown
Outdoor Recreation: Promise and Peril in the New West (Summer Conference, June 8-10)
12 pages.
Cooperative Implementation Of Federal Regulations, Douglas C. Michael
Cooperative Implementation Of Federal Regulations, Douglas C. Michael
Law Faculty Scholarly Articles
Professor Michael examines regulatory programs in which the federal government leaves many compliance decisions up to the regulated entities themselves. Drawing on prior research and theory in the area, he concludes that such "cooperative implementation" is feasible if three principles are observed: (1) regulatory standards are written to leave discretion in methods of compliance and that discretion is within the competence of the regulated entities; (2) there are economic incentives to offset the additional costs to these entities; and (3) the entities self-report their own compliance, the agency closely monitors the program, and the agency maintains a residual program of …