Law Commons^™

What A Difference A State Makes: California’S Authority To Regulate Motor Vehicle Emissions Under The Clean Air Act And The Future Of State Autonomy, Chiara Pappalardo

Michigan Journal of Environmental & Administrative Law

Air pollutants from motor vehicles constitute one of the leading sources of local and global air degradation with serious consequences for human health and the overall stability of Earth’s climate. Under the Clean Air Act (“CAA”), for over fifty years, the state of California has served as a national “laboratory” for the testing of technological solutions and regulatory approaches to improve air quality. On September 19, 2019, the Trump Administration revoked California’s authority to set more stringent pollution emission standards. The revocation of California’s authority frustrates ambitious initiatives undertaken in California and in other states to reduce local air pollution …

Improving Generic Drug Approval At The Fda, Kathleen Craddock

Michigan Journal of Environmental & Administrative Law

Generic drugs are the store-brand cereal of the drug world. While they lack the vibrant colors of and exciting commercials behind name brands, generics are still effective. Most importantly, for some people, they make the difference between accessing essential treatment and going without. Getting generics to market as quickly as possible means fewer people will cut pills in half or skip doses to save money, which also saves billions of dollars across the U.S. health system. Because a new generic does not offer lifesaving changes for people with rare or complicated diseases, generics lack the “cultural capture of rhetoric about …

Energy-Water Nexus, The Clean Power Plan, And Integration Of Water Resource Concerns Into Energy Decision-Making, Sarah Ladin

Michigan Journal of Environmental & Administrative Law

Energy regulation in the United States is now at a crossroads. The EPA has begun the process to officially repeal the Clean Power Plan and currently has no plan to replace it with new rulemaking to regulate carbon emissions from the U.S. energy sector. Even though the Clean Power Plan is more or less at its end, its regulatory structure stands as a model of the way decision-makers in the United States regulate the energy sector and the environment. Since the beginning of the modern environmental legal system, decision-makers have chosen to silo the system. Statutes and agencies focus on …

Making Bureaucracies Think Distributively: Reforming The Administrative State With Action-Forcing Distributional Review, Kenta Tsuda

Michigan Journal of Environmental & Administrative Law

This Article proposes that agencies analyze the distributional impacts of major regulatory actions, subject to notice-and-comment procedures and judicial review. The proposal responds to the legitimacy crisis that the administrative state currently faces in a period of widening economic inequality. Other progressive reform proposals emphasize the need for democratization of agencies. But these reforms fail to address the two fundamental pitfalls of bureaucratic governance: the “knowledge problem”—epistemic limitations on centrally coordinated decision making—and the “incentives problem”—the challenge of aligning the incentives of administrative agents and their political principals.

A successful administrative reform must address both problems. Looking to the environmental …

Cooperative Mineral Interest Development In The Lone Star State: It's Time To Mess With Texas, Matthew K. Trawick

Michigan Journal of Environmental & Administrative Law

Since the early discoveries of the Spindletop, King Ranch, and East Texas oil fields, the oil and gas industry has dominated the Texas economy. The industry has also played an important role in shaping state politics and culture. The oil boom of the early 1900s created thousands of jobs for ordinary workers and immense wealth for a select few. Early Texas oil barons made headlines because of their lavish lifestyles and often extreme political beliefs. Legendary wildcatter H.L. Hunt typified this oil-fueled exuberance. Hunt became one of the eight richest individuals in the United States after securing mineral rights to …

Too Many Cooks In The Climate Change Kitchen: The Case For An Administrative Remedy For Damages Caused By Increased Greenhouse Gas Concentrations, Benjamin Reese

Michigan Journal of Environmental & Administrative Law

Recent federal and state court decisions have made clear that federal common law claims against emitters of greenhouse gases are not sustainable; however, those same courts seem to have given state common law tort claims the green light, at least if the claims are brought in the state where the polluters are located. This Note contends that such suits are not an adequate remedy for those injured by climate change because they will face nearly insurmountable barriers in state court, and because there are major policy-level drawbacks to relying on state tort law rather than a federal solution. This Note …

The Cost Of Nothing Trumps The Value Of Everything: The Failure Of Regulatory Economics To Keep Pace With Improvements In Quantitative Risk Analysis, Adam M. Finkel

Michigan Journal of Environmental & Administrative Law

The entire U.S. federal regulatory apparatus, especially that part devoted to reducing (or deciding not to reduce) risks to the environment, health, and safety (EHS), relies increasingly on judgments of whether each regulation would yield benefits in excess of its costs. These judgments depend in turn upon empirical analysis of the potential increases in longevity, quality of life, and environmental quality that the regulation can confer, and also of the economic resources needed to “purchase” those benefits—analyses whose quality can range from extremely fine to disappointingly poor. The quality of a risk analysis (from which the benefits of control are …

Making Ideas Matter: Remembering Joe Sax, Mark Van Putten

Michigan Journal of Environmental & Administrative Law

Joe Sax made his ideas matter. He had consequential ideas that shaped an entire field—in his case, environmental law—both in theory and in practice. His scholarship was first rate and has enduring significance in academia, as evidenced by the fact that two of his law review articles are among the 100 most frequently cited articles of all time. Others are more competent to review the importance of his scholarship; my experience in environmental advocacy is more pertinent to evaluating his impact on environmental policymaking. Here, his ideas have had a greater impact than any other legal academic. As the New …

Joseph L. Sax: The Realm Of The Legal Scholar, Nina A. Mendelson

Michigan Journal of Environmental & Administrative Law

It is one of my great regrets that I never really got to know Professor Joseph Sax personally. I joined the faculty at the University of Michigan Law School well over a decade after Sax departed our halls for the University of California at Berkeley’s Boalt Hall School of Law. I met him on one occasion several years ago, when he gave an engaging workshop at Michigan on governance issues around Colorado River water allocation, complete with a detailed map of the watershed. I am exceptionally fortunate, however, to occupy a chair named for him. This is not only because …

Blueprint For The Great Lakes Trail, Melissa K. Scanlan

Michigan Journal of Environmental & Administrative Law

The Great Lakes are vast yet vulnerable. There is a need to focus the public’s attention on the significance of the lakes for the region as a cohesive, binational whole. To address this need, build on existing water law, and engage the public, this Article provides a blueprint to establish a Great Lakes Trail on the shores of the Great Lakes. The Trail will link together 10,000 miles of coastline and provide the longest marked walking trail in the world. It will demarcate an already existing, yet largely unrecognized, public trust easement and engage the public with their common heritage …

Legal Protection For Groundwater-Dependent Ecosystems, Collin Gannon

Michigan Journal of Environmental & Administrative Law

This Note concerns the legal protection of groundwater-dependent ecosystems in the United States and abroad. By first describing the science and ecology of ecosystems that are dependent on groundwater and then surveying the current American legal system that fails to adequately protect groundwater-dependent ecosystems (GDEs), this Note proposes legal reforms that could vastly improve groundwater management systems. State protection of GDEs is sparse and often only operates indirectly as a result of states’ water policies focused on water quantity upkeep for consumptive purposes. Part I provides an overview of GDEs. Part II discusses state legal protection, including indirect state protection …

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 …

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 …

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

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 …

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 …