Law Commons^™

A History Of Corporate Law Federalism In The Twentieth Century, William W. Bratton

Seattle University Law Review

This Article describes the emergence of corporate law federalism across a long twentieth century. The period begins with New Jersey’s successful initiation of charter competition in 1888 and ends with the enactment of the Sarbanes-Oxley Act in 2002. The federalism in question describes the interrelation of state and federal regulation of corporate internal affairs. This Article takes a positive approach, pursuing no normative bottom line. It makes six observations: (1) the federalism describes a division of subject matter, with internal affairs regulated by the states and securities issuance and trading regulated by the federal government; (2) the federalism is an …

Fears, Faith, And Facts In Environmental Law, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

Environmental law has long been shaped by both the particular nature of environmental harms and by the actors and institutions that cause such harms or can address them. This nation’s environmental statutes remain far from perfect, and a comprehensive law tailored to the challenges of climate change is still elusive. Nonetheless, America’s environmental laws provide lofty, express protective purposes and findings about reasons for their enactment. They also clearly state health and environmental goals, provide tailored criteria for action, and utilize procedures and diverse regulatory tools that reflect nuanced choices.

But the news is far from good. Despite the ambitious …

The Lawlessness Of Sackett V. Epa, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

When the Supreme Court speaks on a disputed statutory interpretation question, its words and edicts undoubtedly are the final judicial word, binding lower courts and the executive branch. Its majority opinions are the law. But the Court’s opinions can nonetheless be assessed for how well they hew to fundamental elements of respect for the rule of law. In particular, law-respecting versus law-neglecting or lawless judicial work by the Court can be assessed in the statutory interpretation, regulatory, and separation of power realms against the following key criteria, which in turn are based on some basic rule of law tenets: analysis …

Federal Common Law, Climate Torts, And Preclusion, Tom Boss

Washington and Lee Law Review Online

Municipalities have been trying for decades to hold energy companies accountable for their role in the climate change crisis. In an effort to prevent suits, these companies are pushing the novel legal theory that federal common law provides a basis for jurisdiction in federal court over these claims. Once in federal court, the defendants argue that the very federal common law that served as the basis for removal has been displaced by the Clean Air and Clean Water Acts. This would then justify dismissal of the entire case for failure to state a claim. Luckily for the plaintiffs, nearly all …

Reading Between The Lines Of The Ira + Iija Power Gaps, Steven Ferrey

Pace Environmental Law Review

Two major pieces of legislation enacted during the Biden Administration – the 2021 Infrastructure Investment and Jobs Act (IIJA) and the 2022 Inflation Reduction Act (IRA) – devote hundreds of billions of dollars over the next decade to rapidly increase electrification throughout the United States. While this legislation provides substantial investment in infrastructure, it also demands action from different legal regulators. Renewable energy occupies a much larger land footprint than traditional electric power production. And land-use under the Tenth Amendment is within local and state, rather than federal, jurisdiction. To date, U.S. local land use regulation frustrates such national legislation. …

State Sequestration: Federal Policy Accelerates Carbon Storage, But Leaves Full Climate, Equity Protections To States, Gabriel Pacyniak

Faculty Scholarship

Abstract

The Intergovernmental Panel on Climate Change—the UN’s expert science panel—has repeatedly found that limiting climate change to prevent catastrophic harms will require at least some use of carbon capture and sequestration (CCS), and may entail substantial deployments of this technology. There is significant uncertainty, however, about the level of lifecycle greenhouse gas (GHG) reductions achievable in practice from varying CCS applications; some applications could even lead to net increases in emissions. In addition, a number of these applications create or maintain other harms, especially those related to fossil fuel extraction and use. For these reasons, many environmental justice advocates …

Displacement And Preemption Of Climate Nuisance Claims, Jonathan H. Adler

Faculty Publications

New York City and other municipalities have filed state-law-based nuisance suits against fossil fuel companies seeking compensatory damages for the consequences of climate change. Previous nuisance claims, filed under federal common law, were held to be displaced by federal environmental statutes. Defendants have argued that state-law-based claims should likewise be preempted. Yet while the enactment of federal regulatory statutes displaces federal common law actions for interstate pollution, such enactments do not necessarily preempt state common law actions, even where pollution crosses state boundaries, as it is more difficult to preempt state common law than it is to displace federal common …

Under-Regulation In The State Prison Food System: Consequences And A Proposal For Change, Michael D. Mckirgan

Journal of Food Law & Policy

While federal and state government regulations have become commonplace in almost every conceivable facet of the modem American lifestyle, the prison food system has inconspicuously remained underregulated despite the progress made by the prisoners' rights movement in other areas. Legislatures in most states generally leave prison food regulation to the sole discretion of prison administrators, resulting in a "laissez-faire approach" in the prison food system; an anachronism in contemporary America. Some states' prison systems do in fact self regulate to an adequate degree despite this under-regulation, while others participate in voluntary, nongovernmental prison accreditation programs. However, many states and localities …

Out Of Sight, But Not Out Of Mind: Reevaluating The Role Of Federalism In Adequately Regulating Concentrated Animal Feeding Operations, Madhavi Kulkarni

William & Mary Environmental Law and Policy Review

No abstract provided.

Uncooperative Environmental Federalism 2.0, Jonathan H. Adler

Faculty Publications

Has the Trump Administration made good on its pledges to reinvigorate cooperative federalism and constrain environmental regulatory overreach by the federal government? Perhaps less than one would think. This paper, prepared for the Hastings Law Journal symposium, “Revolution of Evolution? Administrative Law in the Age of Trump,” provides a critical assessment of the Trump Administration’s approach to environmental federalism. Despite the Administration’s embrace of “cooperative federalism” rhetoric, environmental policy reforms have not consistently embodied a principled approach to environmental federalism in which the state and federal governments are each encouraged to focus resources on areas of comparative advantage.

Commandeering, Preemption, And Vehicle Emissions Regulation Post-Murphy V. Ncaa, Amelia Raether

Northwestern University Law Review

The Clean Air Act is often heralded as a paragon of cooperative federalism. The Act’s approach to vehicle emissions regulation in particular prescribes a unique partnership between the federal government and the state of California: while all states are bound by federally mandated vehicle emissions requirements, California may set more stringent standards in recognition of its historic role on the leading edge of environmental protection. However, in August 2018, the Environmental Protection Agency proposed not only to roll back the national emissions regulations, but also to revoke California’s ability to set more stringent standards, which include limits on greenhouse gas …

Harmonious Federalism In Support Of National Energy Goals – Increased Wind Renewable Energy, Ronald H. Rosenberg

Ronald H. Rosenberg

American energy policy has slowly begun to change the mix in the sources of supply of electricity to residences, industry, and businesses. Renewable sources of electricity have been promoted as future contributors of large portions of the nation's electricity consumption. Wind power has been identified as a potentially substantial future electricity source contributing up to 20% of American demand 2030. To achieve these optimistic goals, there must be: (1) cost-effective, reliable energy technology; (2) sufficient investment capital to finance new construction; and (3) the existence of supportive governmental policies at all levels government. This article discusses the importance of inter-governmental …

The Emperor’S New Clothes: The Variety Of Stakeholders In Climate Change Regulation Assuming The Mantle Of Federal And International Authority, Linda A. Malone

Linda A. Malone

In June 2017, President Donald Trump announced the United States would be withdrawing from the Paris Climate Accord. President Trump believes the United States should be more focused on its economic wellbeing than on environmental concerns. Since being elected, President Trump has, with the help of the Environmental Protection Agency, been rolling back, or attempting to roll back, major climate change regulations. However, this Article points out that due to factors such as international law, the United States Constitution, and the Administrative Procedure Act, one cannotjust simply withdraw from an international agreement, such as the Paris Accord, or take back …

Conservation, Regionality, And The Farm Bill, Jess R. Phelps

Maine Law Review

Over the past several Farm Bills, there has been a somewhat subtle shift in program design to better incorporate regional perspectives/localized areas of conservation concern into national conservation program delivery. The purpose of this Article is to specifically explore the various roles that regional considerations play in existing Farm Bill conservation programs and also consider whether further developments in this direction could result in more flexible program delivery, more effective partnerships, and ultimately, better conservation outcomes. To this end, section II will provide an overview of the history of the Farm Bill, from its origins to the emergence of a …

Market Segmentation Vs. Subsidization: Clean Energy Credits And The Commerce Clause's Economic Wisdom, Felix Mormann

Felix Mormann

The dormant Commerce Clause has long been a thorn in the side of state policymakers. The latest battleground for the clash between federal courts and state legislatures is energy policy. In the absence of a decisive federal policy response to climate change, nearly thirty states have created a new type of securities—clean energy credits—to promote lowcarbon renewable and nuclear power. As more and more of these programs come under attack for alleged violations of the dormant Commerce Clause, this Article explores the constitutional constraints on clean energy credit policies. Careful analysis of recent and ongoing litigation reveals the need for …

Administrative States: Beyond Presidential Administration, Jessica Bulman-Pozen

Faculty Scholarship

Presidential administration is more entrenched and expansive than ever. Most significant policymaking comes from agency action rather than legislation. Courts endorse “the presence of Presidential power” in agency decisionmaking. Scholars give up on external checks and balances and take presidential direction as a starting point. Yet presidential administration is also quite fragile. Even as the Court embraces presidential control, it has been limiting the administrative domain over which the President presides. And when Presidents drive agency action in a polarized age, their policies are not only immediately contested but also readily reversed by their successors.

States complicate each piece of …

Market Segmentation Vs. Subsidization: Clean Energy Credits And The Commerce Clause's Economic Wisdom, Felix Mormann

Faculty Scholarship

The dormant Commerce Clause has long been a thorn in the side of state policymakers. The latest battleground for the clash between federal courts and state legislatures is energy policy. In the absence of a decisive federal policy response to climate change, nearly thirty states have created a new type of securities—clean energy credits—to promote lowcarbon renewable and nuclear power. As more and more of these programs come under attack for alleged violations of the dormant Commerce Clause, this Article explores the constitutional constraints on clean energy credit policies. Careful analysis of recent and ongoing litigation reveals the need for …

The Emperor’S New Clothes: The Variety Of Stakeholders In Climate Change Regulation Assuming The Mantle Of Federal And International Authority, Linda A. Malone

Faculty Publications

In June 2017, President Donald Trump announced the United States would be withdrawing from the Paris Climate Accord. President Trump believes the United States should be more focused on its economic wellbeing than on environmental concerns. Since being elected, President Trump has, with the help of the Environmental Protection Agency, been rolling back, or attempting to roll back, major climate change regulations. However, this Article points out that due to factors such as international law, the United States Constitution, and the Administrative Procedure Act, one cannotjust simply withdraw from an international agreement, such as the Paris Accord, or take back …

Constitutional Challenges And Regulatory Opportunities For State Climate Policy Innovation, Felix Mormann

Felix Mormann

This Article explores constitutional limits and regulatory openings for innovative state policies to mitigate climate change by promoting climate-friendly, renewable energy. In the absence of a comprehensive federal policy approach to climate change and clean energy, more and more states are stepping in to fill the policy void. Already, nearly thirty states have adopted renewable portfolio standards that create markets for solar, wind, and other clean electricity. To help populate these markets, a few pioneering states have recently started using feed-in tariffs that offer eligible generators above-market rates for their clean, renewable power.

But renewable portfolio standards, feed-in tariffs, and …

Clean Energy Federalism, Felix Mormann

Felix Mormann

Legal scholarship tends to approach the law and policy of clean energy from an environmental law perspective. As hydraulic fracturing, renewable energy integration, nuclear reactor (re)licensing, transport biofuel mandates, and other energy issues have pushed to the forefront of the environmental law debate, clean energy law has begun to emancipate itself. The emerging literature on clean energy federalism is a symptom of this emancipation. This Article adds to that literature by offering two case studies, a novel model for policy integration, and theoretical insights to elucidate the relationship between environmental federalism and clean energy federalism.

Renewable portfolio standards and feed-in …

The Case For Effective Environmental Politics: Federalist Or Unitary State? Comparing The Cases Of Canada, The United States Of America, And The People’S Republic Of China, Justin Fisch

University of Michigan Journal of Law Reform

Federalism, by its nature, is a segmented system of governance. The Canadian and American constitutional orders are divided along very clear lines of jurisdictional authority between levels of government. Environmental issues, by their nature, are holistic in scope—they transcend borders, governments, jurisdictions, and authorities. For this reason, one might assume that a unitary state would be better positioned to tackle them. Is this justified? This Article examines the Chinese unitary state, in comparison to the federalist systems in Canada and the United States of America, to discern whether a unitary government can better manage issues plaguing the environment.

Root And Branch: The Thirteenth Amendment And Environmental Justice, Mehmet K. Konar-Steenberg

Faculty Scholarship

Forty years since the birth of the environmental justice movement, environmental injustice persists. One reason is the failure to identify a viable constitutional root for environmental justice doctrine in either the Fourteenth Amendment or Commerce Clause. Accordingly, this essay argues that the Thirteenth Amendment might provide a fertile environment for a flourishing law of environmental justice.

Part I will describes how environmental justice’s distributive justice vision was at odds with environmental law’s positivist, proceduralist core, and how that difference helps to account for the constitutional difficulties that followed. Part II describe one of those difficulties: the disparate impact problem and …

Constrained Regulatory Exit In Energy Law, Jim Rossi

Vanderbilt Law School Faculty Publications

In recent years, the federal government’s efforts to open up competitive electricity markets have transformed how we think about the regulation of energy. In many respects, the Federal Energy Regulatory Commission’s (FERC) broad “deregulatory” efforts, which commenced in the 1990s, might appear to be a case of paradigmatic regulatory exit as defined by J.B. Ruhl and Jim Salzman. But our case study of FERC’s restructuring of wholesale electricity markets reveals some important institutional features that make exit in federalism contexts, and under federal statutory duties, a rich and difficult problem. In the context of energy, exit from one regulatory sphere …

Federalism Hedging, Entrenchment, And The Climate Challenge, William W. Buzbee

Georgetown Law Faculty Publications and Other Works

The virtues and effects of federalism continue to generate political, judicial and scholarly ferment. While some federalism partisans champion exclusivity and separation, others praise the more common political choice to retain federal and state regulatory overlap and interaction. Much of this work, however, focuses on government learning or rule clarity, giving little or no attention to how different federalism choices can heighten or hedge risks of regulatory failure and policy reversal. These debates play out with unusual fervor and with high stakes in battles over climate change regulation. Despite broad agreement that any effective climate policy intervention must include national …

State Imperiled Species Legislation, Robert L. Fischman, Vicky J. Meretsky, Willem Drews, Katlin Stephani, Jennifer Teson

Articles by Maurer Faculty

State wildlife conservation programs are essential to accomplishing the national goal of extinction prevention. By virtue of their constitutional powers, their expertise, and their on-the-ground personnel, states could—in theory—accomplish far more than the federal agencies directly responsible for implementing the Endangered Species Act (ESA). States plausibly argue that they can catalyze collaborative conservation that brings together key stakeholders to improve conditions for imperiled species. Bills to revise the ESA seek to delegate greater authority to states. We evaluated states’ imperiled species legislation to determine their legal capacity to employ the key regulatory tools that prompt collaborative conservation. All but four …

Federalism, The Environment And The Charter In Canada, Dayna Scott

Articles & Book Chapters

This Chapter reviews the key jurisprudential developments in relation to the division of powers in Canada, exploring how the shared jurisdiction over the “environment” created by sections 91 and 92 of the Constitution has historically and continues to shape environmental law and policy. In addition to this federal-provincial struggle, the chapter considers the current trend towards local regulation of environmental matters according to the principle of ‘subsidiarity’, and the growing recognition of the ‘inherent jurisdiction’ of Indigenous peoples. The contemporary dynamics are explored through two critical policy case studies highlighting barriers to environmental justice: safe drinking water on reserves, and …

Structuring A Market-Oriented Federal Eco-Information Policy, Peter S. Menell

Peter Menell

No abstract provided.

The Future Of Environmental Law And Complexities Of Scale: Federalism Experiments With Climate Change Under The Clean Air Act, Hari M. Osofsky

Hari Osofsky

Since its inception, the Clean Air Act ("CAA") has served as an experiment in environmental governance models. As importantly, the CAA has had to be flexible in responding to our evolving understandings of environmental problems. Whether through amendments or new regulatory regimes under existing provisions, the statute has served as a key mechanism in the U.S. federal government's efforts to respond to complex environmental challenges. This Article focuses on the CAA's efforts to grapple with complexities of regulatory scale as an illustration of the new directions in environmental law that are the focus of this symposium. Air moves around over …

Constitutional Challenges And Regulatory Opportunities For State Climate Policy Innovation, Felix Mormann

Faculty Scholarship

This Article explores constitutional limits and regulatory openings for innovative state policies to mitigate climate change by promoting climate-friendly, renewable energy. In the absence of a comprehensive federal policy approach to climate change and clean energy, more and more states are stepping in to fill the policy void. Already, nearly thirty states have adopted renewable portfolio standards that create markets for solar, wind, and other clean electricity. To help populate these markets, a few pioneering states have recently started using feed-in tariffs that offer eligible generators above-market rates for their clean, renewable power.

But renewable portfolio standards, feed-in tariffs, and …

The Deepwater Horizon Oil Spill Litigation: Proof Of Concept For The Manual For Complex Litigation And The 2015 Amendments To The Federal Rules Of Civil Procedure, John C. Cruden, Steve O'Rourke, Sarah D. Himmelhoch

Michigan Journal of Environmental & Administrative Law

On April 20, 2010, the oil rig Deepwater Horizon exploded in the Gulf of Mexico, killing eleven people and injuring seventeen more. Efforts to stop the spill failed. For the next eighty-seven days, hundreds of millions of barrels of oil poured into the Gulf. This catastrophe not only changed the lives of the families of the dead and injured and the communities who experienced the economic and social disruption of the spill – it challenged the survival of the ecosystem of the ninth largest water body in the world. The oil spill extended fifty miles offshore from Louisiana in the …