Law Commons^™

The Military-Environmental Complex And The Courts: Comment To Sarah Light, Shi-Ling Hsu

Scholarly Publications

No abstract provided.

The Clean Power Plan, The Supreme Court’S Stay, And Irreparable Harm, Erin Ryan

Scholarly Publications

Invited by the American Constitution Society, this very short essay critiques the decision by the Supreme Court to stay implementation of the Clean Power Plan (CPP), the cornerstone of the Obama Administration’s climate policy, while twenty-nine states proceed with litigation against it. The CPP targets greenhouse gas emissions from power plants, which account for about a third of all U.S. carbon emissions. It provides for substantial flexibility in how reduction targets may be attained within states, but generators heavily invested in coal argue that implementation will require unfair and expensive changes. It therefore surprised no one that states closely aligned …

Scale Economies, Scale Externalities: Hog Farming And The Changing American Agricultural Industry, Shi-Ling Hsu

Scholarly Publications

American agriculture is inexorably concentrating into the hands of a small number of large conglomerates. Expanding farms pursuing scale economies would normally have to abide by a system of environmental and other laws that would, in theory, require farms to account for negative externalities. If those laws were observed and enforced, they would help strike a balance between the greater profitability and the larger externalities of scaling up. But these laws are not widely observed nor rigorously enforced, which upsets this balance and gives large-scale farms a cost advantage while insulating them from corresponding responsibilities.

Perhaps nowhere in agriculture is …

Remedying Regulatory Diseconomies Of Scale, Hannah J. Wiseman

Scholarly Publications

Rules in the modern administrative state tend to lag behind reality, and a key contributor to this stickiness – the volume of regulated activity – is largely ignored. When legislators or agency staff initially write rules to constrain the externalities of an activity, they assume that the activity will occur at a particular scale. Based on the known impacts at this scale, policymakers and regulators balance the harms of the regulated activity against the costs of regulation to industry, striking a compromise within the chosen rule or choosing to not regulate at all.

If the activity later expands from this …

The Spending Power And Environmental Law After Sebelius, Erin Ryan

Scholarly Publications

This article analyzes the Supreme Court’s new spending power doctrine and its impact on state-federal bargaining in programs of cooperative federalism, using the laboratory of environmental law. (It expands on the legal analysis in an Issue Brief originally published by the American Constitution Society on Oct. 1, 2013.) After the Supreme Court ruled in the highly charged Affordable Care Act case of 2012, National Federation of Independent Business vs. Sebelius, the political arena erupted in debate over the implications for the health reform initiative and, more generally, the reach of federal law. Analysts fixated on the decision’s dueling Commerce Clause …

Environmental Law After Sebelius: Will The Court’S New Spending Power Limits Affect Environmental State-Federal Partnerships?, Erin Ryan

Scholarly Publications

This issue brief, invited by the American Constitution Society, analyzes the regulatory impacts of the new spending power doctrine in the Supreme Court’s 2012 health reform decision, National Federation of Independent Business v. Sebelius. In Sebelius, a plurality of the Supreme Court held that portions of the Affordable Care Act exceeded federal authority under the Spending Clause. With that holding, Sebelius became the first Supreme Court decision since the New Deal to limit an act of Congress on spending power grounds, rounding out the “New Federalism” limits on federal power first initiated by the Rehnquist Court in the 1990s. The …

The Once And Future Challengesof American Federalism:The Tug Of War Within, Erin Ryan

Scholarly Publications

This essay is drawn from a lecture for the “Ways of Federalism” conference (University of the Basque Country, October 19, 2011) and a new book, "Federalism and the Tug of War Within" (Oxford, 2012) (http://ssrn.com/abstract=1991612), which explores how constitutional interpreters struggle to reconcile the core tensions within American federalism. The essay reviews the current challenges of the American federal system through the theoretical lens developed in the book, focusing on the role of state-federal bargaining within the U.S. federal system. It appears as a chapter in a book of selected conference proceedings, The Ways of Federalism in Western Countries and …

The Real Problem With New Source Review, Shi-Ling Hsu

Scholarly Publications

Editors’ Summary: When the CAA was amended in 1977, the U.S. Congress imposed pollution control requirements on new stationary sources of air pollution, called new source review (NSR), but exempted existing facilities from such requirements. By creating a more favorable regulatory environment for existing facilities than for new ones, “grandfathering” creates an incentive to keep old facilities up and running. Moreover, as a command-and control program, requiring capital expenditures for pollution control equipment makes the capital sluggishness problem worse. Combined with often confusing EPA policies and a changing political environment, NSR has resulted in a running battle between the regulated …

On The Role Of Cost-Benefit Analysis In Environmental Law: A Book Review Of Frank Ackerman And Lisa Heinzerling's Priceless: On Knowing The Price Of Everything And The Value Of Nothing, Shi-Ling Hsu

Scholarly Publications

Legal scholarship on the role of cost-benefit analysis in environmental law is often stimulating, but does not seem to be changing anybody's mind. The entrenchment of a camp of detractors and a camp of advocates of cost-benefit analysis parallels the impasse that has stymied environmental law for over a decade. Professors Frank Ackerman and Lisa Heinzerling have coauthored a book that captures most of the arguments from the detractor side, and they have done so skillfully and powerfully. However, this Review criticizes the book's contribution to perpetuating this intellectual stalemate. The book does this by focusing on an environmental theory …

Fairness Versus Efficiency In Environmental Law, Shi-Ling Hsu

Scholarly Publications

Like many other areas of law, the development of environmental law has been strongly influenced by notions of fairness. This should not be surprising, since environmental law has been developed by lawyers, who are self-selected to be fairness-oriented and trained to think in terms of fairness. While large environmental gains have been achieved in the thirtyyear history of environmental law, progress seems to have reached a plateau. Partisanship has poisoned the debate on how best to proceed in making further environmental progress. I attribute the failings and the current stalemate in environmental law to our obsession with fairness. Fairness-thinking has …