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Full-Text Articles in Law

Roles For State Energy Regulators In Climate Change Mitigation , Brandon Hofmeister Sep 2012

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 ...


Environmental Aesthetics And Free Speech: Toward A Consistent Content Neutrality Standard For Outdoor Sign Regulation , Brian J. Connolly Sep 2012

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 ...


Judicial Limitation Of The Epa's Oversight Authority In Clean Water Act Permitting Of Mountaintop Mining Valley Fills , Christopher D. Eaton Sep 2012

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 ...


Closing The Regulatory Gap In Michigan's Public Trust Doctrine: Saving Michigan Millions With Statutory Reform, Kelsey Breck Sep 2012

Closing The Regulatory Gap In Michigan's Public Trust Doctrine: Saving Michigan Millions With Statutory Reform, Kelsey Breck

University of Michigan Journal of Law Reform

The Great Lakes are some of Michigan's most valuable and important environmental resources. The public trust doctrine requires Michigan to protect and preserve the lands along the shores of the Great Lakes for the use of future generations. Unfortunately, the public trust doctrine in Michigan is in disarray and as a result, public and private rights to the lands along the Great Lakes are poorly delineated. This Note presents an economic argument for why the public trust doctrine should be reformed to better define public and private rights to the land along Michigan's Great Lakes. It also suggests ...


A Functional Approach To Risks And Uncertainties Under Nepa , Todd S. Aagaard Jan 2012

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 ...


Is A Substantive, Non-Positivist United States Environmental Law Possible?, Dan Tarlock Jan 2012

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 ...


Past Its Prime: Why The Clean Air Act Is In Need Of Modification, Levi Smith Jan 2012

Past Its Prime: Why The Clean Air Act Is In Need Of Modification, Levi Smith

University of Michigan Journal of Law Reform Caveat

The Clean Air Act (CAA) is the primary federal statute regulating the emission of air pollutants. First enacted in 1970, the CAA requires, inter alia, the federal government to establish air quality goals and states to develop implementation plans to achieve those goals. The most stringent requirements of the CAA are imposed on “new” or “modified” sources of pollution, such as sulfur dioxide, nitrous oxides, and particulate matter. Sources that were operating when the CAA was enacted are mostly exempt from regulation under the Act. Because of the substantial costs associated with the CAA standards, there is an incentive for ...


Climate Justice, Daniel A. Farber Jan 2012

Climate Justice, Daniel A. Farber

Michigan Law Review

Eric Posner and David Weisbach take the threat of climate change seriously. Their book Climate Change Justice offers policy prescriptions that deserve serious attention. While the authors adopt the framework of conventional welfare economics, they show a willingness to engage with noneconomic perspectives, which softens their conclusions. Although they are right to see a risk that overly aggressive ethical claims could derail international agreement on restricting greenhouse gases, their analysis makes climate justice too marginal to climate policy. The developed world does have a special responsibility for the current climate problem, and we should be willing both to agree to ...