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Articles 121 - 140 of 140
Full-Text Articles in Law
The Meaning Of Green Growth, Michael A. Livermore
The Meaning Of Green Growth, Michael A. Livermore
Michigan Journal of Environmental & Administrative Law
Although the term is still rarely used in the United States, in recent years “green growth” has become part of the lexicon of global environmental policy. Unfortunately, although it is frequently cited as a public policy goal, green growth has remained vague and ill-defined, leading to conflicting interpretations and confusion over the distinction between green growth and related concepts like sustainable development. This paper seeks to clarify the meaning of green growth as a distinct concept, defining a “green growth frontier” of policies that dominate along both environmental and economic dimensions. The green growth agenda can be understood as moving …
The Dormant Commerce Clause And California's Low Carbon Fuel Standard, Kathryn Abbott
The Dormant Commerce Clause And California's Low Carbon Fuel Standard, Kathryn Abbott
Michigan Journal of Environmental & Administrative Law
California’s Low Carbon Fuel Standard (LCFS), enacted as part of the State’s pioneering Global Warming Solutions Act (AB 32), purports to regulate the amount of carbon emissions associated with fuels consumed in the state. Part of this scheme involves assigning numeric scores to vehicle fuels reflecting the amount of carbon emissions associated with their production, transportation, and use. The scores are part of a “cap-and-trade” scheme to lower the state’s total amount of carbon emissions associated with fuel use. Out-of-state industry groups brought a challenge in the United States District Court for the Eastern District of California, alleging that the …
Midnight Rules: A Reform Agenda, Jack M. Beermann
Midnight Rules: A Reform Agenda, Jack M. Beermann
Michigan Journal of Environmental & Administrative Law
There is a documented increase in the volume of regulatory activity during the last ninety days of presidential administrations when the President is a lame duck, having either been defeated in a bid for re-election or being at the end of the second term in office. This includes an increase in the number of final rules issued as compared to other periods. The phenomenon of late-term regulatory activity has been called “midnight regulation,” based on a comparison to the Cinderella story in which the magic wears off at the stroke of midnight. This Article looks closely at one species of …
Fish And Federalism: How The Asian Carp Litigation Highlights A Decifiency In The Federal Common Law Displacement Analysis, Molly M. Watters
Fish And Federalism: How The Asian Carp Litigation Highlights A Decifiency In The Federal Common Law Displacement Analysis, Molly M. Watters
Michigan Journal of Environmental & Administrative Law
In response to the growing threat posed by the progress of Asian carp up the Mississippi River toward the Great Lakes, and with increased frustration with the federal response to the imminent problem, in 2010, five Great Lakes states sued the Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago to force a more desirable and potentially more effective strategy to prevent the Asian carp from infiltrating the Great Lakes: closing the Chicago locks. This Note examines the federal common law displacement analysis through the lens of the Asian carp litigation. Both the Federal District Court …
Environmental Law At The Crossroads: Looking Back 25, Looking Forward 25, Richard J. Lazarus
Environmental Law At The Crossroads: Looking Back 25, Looking Forward 25, Richard J. Lazarus
Michigan Journal of Environmental & Administrative Law
Twenty-five years used to seem like an exceedingly long time. It certainly did when I was graduating from law school and not yet twentyfive. My perspective on time, however, has (naturally) since evolved, much as environmental law itself and the controversies surrounding it have, too, evolved. The contrast between environmental law twenty-five years ago and environmental law today is remarkable and makes clear that environmental law and lawmaking were changing in fundamental ways a generation ago, but those changes are revealed only now with the aid of hindsight. To be sure, the statutory texts of domestic environmental law are strikingly …
Why International Catch Shares Won't Save Ocean Biodiversity, Holly Doremus
Why International Catch Shares Won't Save Ocean Biodiversity, Holly Doremus
Michigan Journal of Environmental & Administrative Law
Skepticism about the efficacy and efficiency of regulatory approaches has produced a wave of enthusiasm for market-based strategies for dealing with environmental conflicts. In the fisheries context, the most prominent of these strategies is the use of “catch shares,” which assign specific proportions of the total allowable catch to individuals who are then free to trade them with others. Catch shares are now in wide use domestically within many nations, and there are increasing calls for implementation of internationally tradable catch shares. Based on a review of theory, empirical evidence, and two contexts in which catch shares have been proposed, …
Making Method Visible: Improving The Quality Of Science-Based Regulation, Pasky Pascual, Wendy Wagner, Elizabeth Fisher
Making Method Visible: Improving The Quality Of Science-Based Regulation, Pasky Pascual, Wendy Wagner, Elizabeth Fisher
Michigan Journal of Environmental & Administrative Law
Scientific inferences are theories about how the world works that scientists formulate based on their observations. One of the most difficult issues at the intersection of law and science is to determine whether the weight of evidence supports one scientific inference versus other competing interpretations of the observations. In administrative law, this difficulty is exacerbated by the behavior of both the courts and regulatory agencies. Agencies seldom achieve the requisite visibility that explains the analytical methods they use to reach their scientific inferences. Courts—because they appreciate neither the variety of inferential methods nor their epistemic foundations—do not demand this level …
Avoiding Jeopardy, Without The Questions: Recovery Implementation Programs For Endangered Species In Western River Basins, Reed D. Benson
Avoiding Jeopardy, Without The Questions: Recovery Implementation Programs For Endangered Species In Western River Basins, Reed D. Benson
Michigan Journal of Environmental & Administrative Law
The application of the Endangered Species Act to water resources has generated much controversy in the American West. In several western river basins, however, Recovery Implementation Programs (RIPs) provide an alternative, collaborative approach to ESA compliance. These programs offer an enhanced role for states and stakeholders in ESA decisionmaking, and increased certainty that ESA requirements will not disrupt ongoing water project operations and established uses. This Article examines the origins, purposes, and elements of various RIPs, with particular emphasis on these programs’ approach to compliance with the requirements of ESA section 7 for federal agency actions. The Article also considers …
Environmental Aesthetics And Free Speech: Toward A Consistent Content Neutrality Standard For Outdoor Sign Regulation , Brian J. Connolly
Environmental Aesthetics And Free Speech: Toward A Consistent Content Neutrality Standard For Outdoor Sign Regulation , Brian J. Connolly
Michigan Journal of Environmental & Administrative Law
First Amendment challenges by billboard companies and other sign owners to local sign regulations have become a frequent occurrence in the past thirty years. The stakes are high for both commercial sign owners and local governments. Sign control has emerged as an important front in the environmental protection movement, as it focuses on the visual or scenic quality of the environment. Courts have begun to recognize and accept local governments’ interest in controlling the proliferation of signage as part of their efforts to improve environmental quality, but courts have applied First Amendment doctrine in an inconsistent manner. The courts’ inconsistent …
Roles For State Energy Regulators In Climate Change Mitigation , Brandon Hofmeister
Roles For State Energy Regulators In Climate Change Mitigation , Brandon Hofmeister
Michigan Journal of Environmental & Administrative Law
The construction of new power plants in the United States carries the risk of significantly contributing to global climate change. After concluding that the current federal regulatory response to climate change risks from power plants is inadequate, this Article examines three potential roles for state energy regulators to play as a bridge climate mitigation strategy until a cohesive federal policy is enacted. State energy regulators have received relatively little attention as potential climate change regulators, but they are well positioned to analyze and mitigate climate change risks from new power plants. The Article considers the advantages and drawbacks of state …
Rulemaking Vs. Democracy: Judging And Nudging Public Participation That Counts , Cynthia R. Farina, Mary Newhart, Josiah Heidt, Cornell Erulemaking Initiative
Rulemaking Vs. Democracy: Judging And Nudging Public Participation That Counts , Cynthia R. Farina, Mary Newhart, Josiah Heidt, Cornell Erulemaking Initiative
Michigan Journal of Environmental & Administrative Law
This Article considers how open government “magical thinking” around technology has infused efforts to increase public participation in rulemaking. We propose a framework for assessing the value of technology-enabled rulemaking participation and offer specific principles of participation-system design, which are based on conceptual work and practical experience in the Regulation Room project at Cornell University. An underlying assumption of open government enthusiasts is that more public participation will lead to better government policymaking: If we use technology to give people easier opportunities to participate in public policymaking, they will use these opportunities to participate effectively. However, experience thus far with …
Judicial Limitation Of The Epa's Oversight Authority In Clean Water Act Permitting Of Mountaintop Mining Valley Fills , Christopher D. Eaton
Judicial Limitation Of The Epa's Oversight Authority In Clean Water Act Permitting Of Mountaintop Mining Valley Fills , Christopher D. Eaton
Michigan Journal of Environmental & Administrative Law
Mountaintop removal mining operations in the Appalachian region have expanded significantly in recent decades. The practice decimates the mountain ecosystems by leveling forests, filling headwater streams, and producing significant runoff of heavy metals, sediment, and other pollutants that impair the aquatic environment of entire watersheds. Yet environmental permitting of the practice is relatively limited. A recent trend in litigation aimed at halting mining operations has involved challenging permits that authorize the discharge of mining overburden into headwater streams pursuant to the Clean Water Act (CWA). The Army Corps of Engineers has assumed jurisdiction over such discharges under section 404 of …
Text(Plus-Other-Stuff)Ualism:Textualists' Perplexing Use Of The Attorney General's Manual On The Administrative Procedure Act, K. M. Lewis
Michigan Journal of Environmental & Administrative Law
Textualist judges, such as U.S. Supreme Court Justice Antonin Scalia, are well known for their outspoken, adamant refusal to consult legislative history and its analogues when interpreting ambiguous provisions of statutory terms. Nevertheless, in administrative law cases, textualist judges regularly quote the Attorney General’s Manual on the Administrative Procedure Act, an unenacted Department of Justice document that shares all the characteristics of legislative history that textualists find odious: unreliability, bias, and failure to pass through the bicameralism and presentment processes mandated by the U.S. Constitution. As a result, judges that rely on the Manual in administrative law cases arguably reach …
Enhancing Public Access To Online Rulemaking Information, Cary Coglianese
Enhancing Public Access To Online Rulemaking Information, Cary Coglianese
Michigan Journal of Environmental & Administrative Law
One of the most significant powers exercised by federal agencies is their power to make rules. Given the importance of agency rulemaking, the process by which agencies develop rules has long been subject to procedural requirements aiming to advance democratic values of openness and public participation. With the advent of the digital age, government agencies have engaged in increasing efforts to make rulemaking information available online as well as to elicit public participation via electronic means of communication. How successful are these efforts? How might they be improved? In this article, I investigate agencies’ efforts to make rulemaking information available …
What The Return Of The Administrative Conference Of The United States Means For Administrative Law, Paul R. Verkuil
What The Return Of The Administrative Conference Of The United States Means For Administrative Law, Paul R. Verkuil
Michigan Journal of Environmental & Administrative Law
Administrative law, writ large, is about the way agencies behave, and how other institutions and the public react to that behavior. By promulgating rules, adjudicating cases and claims, enforcing statutes, providing guidance, collaborating with interest groups, exercising discretion, and so forth, agencies manage and implement the business of government.1 They do this under the auspices of the Executive Branch, but the other branches assert authority over the agencies as well. Congress does so by legislating, budgeting, and overseeing, while the courts do so by interpreting statutes and requiring rational behavior from agencies. These important and essential activities fill many law …
Deruglatory Riders Redux, Thomas O, Mcgarity
Deruglatory Riders Redux, Thomas O, Mcgarity
Michigan Journal of Environmental & Administrative Law
Soon after the 2010 elections placed the Republican Party in control of the House of Representatives, the House took up a number of deregulatory bills. Recognizing that deregulatory legislation had little chance of passing the Senate, which remained under the control of the Democratic Party, or of being signed by President Obama, the House leadership reprised a strategy adopted by the Republican leaders during the 104th Congress in the 1990s. The deregulatory provisions were attached as riders to much-needed legislation in an attempt to force the Senate and the President to accept the deregulatory riders to avoid the adverse consequences …
Is A Substantive, Non-Positivist United States Environmental Law Possible?, Dan Tarlock
Is A Substantive, Non-Positivist United States Environmental Law Possible?, Dan Tarlock
Michigan Journal of Environmental & Administrative Law
U.S. environmental law is almost exclusively positive and procedural. The foundation is the pollution control and biodiversity conservation statutes enacted primarily between 1969–1980 and judicial decisions interpreting them. This law has created detailed processes for making decisions but has produced few substantive constraints on private and public decisions which impair the environment. Several substantive candidates have been proposed, such as the common law, a constitutional right to a healthy environment, the public trust, and the extension of rights to fauna and flora. However, these candidates have not produced the hoped for substantive law. Many argue that a substantive U.S. environmental …
A Functional Approach To Risks And Uncertainties Under Nepa , Todd S. Aagaard
A Functional Approach To Risks And Uncertainties Under Nepa , Todd S. Aagaard
Michigan Journal of Environmental & Administrative Law
The National Environmental Policy Act (NEPA) mandates that federal agencies evaluate the environmental impacts of their proposed actions. This requires agencies to make ex ante predictions about environmental consequences that often involve a significant degree of factual risk or uncertainty. Considerable controversy exists regarding how agencies should address such risks and uncertainties. Current NEPA law adopts a largely ad hoc approach that lacks coherence and analytical rigor. Some environmentalists and legal scholars have called for a greater emphasis on worst-case analysis in environmental planning, especially after the recent Deepwater Horizon oil spill in the Gulf of Mexico and the meltdowns …
The $1.75 Trillion Lie, Lisa Heinzerling, Frank Ackerman
The $1.75 Trillion Lie, Lisa Heinzerling, Frank Ackerman
Michigan Journal of Environmental & Administrative Law
A 2010 study commissioned by the Office of Advocacy of the U.S. Small Business Administration claims that federal regulations impose annual economic costs of $1.75 trillion. This estimate has been widely circulated, in everything from op-ed pages to Congressional testimony. But the estimate is not credible. For costs of economic regulations, the estimate reflects a calculation that rests on a misunderstanding of the definition of the relevant data, flunks an elementary question on the normal distribution, pads the analysis with several years of near-identical data, and fails to recognize the difference between correlation and causation. For costs of environmental regulation, …
The Case For Abolishing Centralized White House Regulatory Review , Rena Steinzor
The Case For Abolishing Centralized White House Regulatory Review , Rena Steinzor
Michigan Journal of Environmental & Administrative Law
A series of catastrophic regulatory failures have focused attention on the weakened condition of regulatory agencies assigned to protect public health, worker and consumer safety, and the environment. The destructive convergence of funding shortfalls, political attacks, and outmoded legal authority have set the stage for ineffective enforcement, unsupervised industry self-regulation, and a slew of devastating and preventable catastrophes. From the Deepwater Horizon spill in the Gulf of Mexico to the worst mining disaster in forty years at the Big Branch mine in West Virginia, the signs of regulatory dysfunction abound. Many stakeholders expected that President Barack Obama would recognize and …