Law Commons^™

God, Gaia, The Taxpayer And The Lorax: Standing, Justiciability, And Separation Of Powers After Massachusetts And Hein, Jonathan H. Adler

Faculty Publications

The Supreme Court decided two important standing cases during the October 2006 term: Hein v. Freedom from Religion Foundation and Massachusetts v. EPA. The latter is important for what it did, the former for what it did not do. Whereas Hein hewed closely - perhaps too closely - to prior standing precendents, the Massachusetts decision substantially departed from existing precedent and established a new doctrine of special solicitude to state standing. Both decisions involved generalized grievances about federal government policies that affect citizens as a whole, but point in opposite directions. In many respects the opinions are in significant tension …

Common Law Environmental Protection: Introduction, Jonathan H. Adler, Andrew P. Morriss

Faculty Publications

Today there is widespread dissatisfaction with many aspects of federal environmental law. The apparent success of early environmental regulations notwithstanding, many analysts and academics have begun to reexamine the potential of common law causes of action to supplement, if not supplant, portions of the existing regulatory regime. Yet whatever the failings of the environmental regulatory state, the common law has failings of its own, including the failure to protect many ecological resources in the period before the enactment of federal environmental law. This essay is the introduction to a paper-only symposium on Common Law Environmental Protection, forthcoming in the Case …

Sepas, Climate Change, And Corporate Responsibility: The Contribution Of Local Government, Catherine J. Lacroix

Faculty Publications

Municipalities in the United States are increasingly active in the effort to reduce greenhouse gas emissions. Data suggest that the physical layout of communities and the buildings they contain make significant contributions to greenhouse gas emissions and thus to climate change. One useful tool for municipalities could be the Environmental Impact Statement (EIS), pioneered in the National Environmental Policy Act (NEPA) at the federal level and subsequently adopted as a policymaking guide in the State Environmental Policy Acts (SEPAs) of many states. A SEPA requires state governments - and, in six states, local governments as well - to consider the …

Hothouse Flowers: The Vices And Virtues Of Climate Federalism, Jonathan H. Adler

Faculty Publications

Federal law preempts state regulation of motor vehicle emissions. California alone is allowed to seek a waiver of such preemption, and unsuccessfully sought such a waiver for the state's regulations limiting greenhouse gas emissions from motor vehicles. The debate and pending litigation over California's effort to obtain a waiver of preemption has focused attention on the state role in climate change policy. This paper explores the role of state governments in developing climate change policy, with a particular focus on how federalism principles and practice should inform judgments about the division of authority between the state and federal governments. As …

Reforming Our Wasteful Hazardous Waste Policy, Jonathan H. Adler

Faculty Publications

Federal hazardous waste regulation and cleanup programs suffer from poor prioritization, insufficient flexibility, high costs, and questionable benefits. Many of these problems are a result of excessive regulatory centralization. With the enactment of the Resource Conservation and Recovery Act (RCRA) and Comprehensive Emergency Response, Cleanup and Liability Act (CERCLA, aka "Superfund") Congress centralized environmental policy questions that are, in many respects, inherently local in nature. This produced a "mismatch" between those jurisdictions with regulatory primacy and the nature of the environmental problems at issue.

Contamination of soil and groundwater are site-specific, rarely crossing state lines. Due to the local nature …