Law Commons^™

Addressing Climate Change: Have The Political Winds Shifted In Favor Of A Carbon Tax?, Jesse Reiblich

LSU Journal of Energy Law and Resources

Policymaking to combat climate change has been almost nonexistent despite the scientific community’s consensus that the time to act is now. Regardless, climate change remains a volatile political issue that divides our nation and its legislators. Advocates of reducing carbon emissions have traditionally endorsed several tools available to policymakers and administrative agencies in order to curb climate change: rulemaking under the Clean Air Act, capand-trade, and carbon taxes. Carbon tax legislation has gained traction after endorsements from both sides of the political aisle, and because it could be used to raise funds to reduce the United States’ deficit. Even policymakers …

Clearing The Air: The Misguided Ruling Of Eme Homer And The Future Of Interstate Pollution Regulation, Spencer King

LSU Journal of Energy Law and Resources

No abstract provided.

Alaska Wilderness League V. U.S. Epa, Maxwell Kirchhoff

Public Land & Resources Law Review

In this case, the Ninth Circuit deferred to the EPA’s interpretation of a statute concerning whether increment requirements were applicable to a temporary source pollutant. The court held that Shell Offshore, Inc. was not required to analyze the potential impact of an offshore drill barge, the Kulluk, under the Clean Air Act. Additionally, the plaintiffs’ challenge concerning the Kulluk's impact on ambient air was defeated pursuant to Resisting Environmental Destruction on Indigenous Lands, REDOIL v. EPA.

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 …

Administrative Sovereignty: Expanding The Scope Of Federal Agency Enforcement Powers In Alaska V. Environmental Protection Agency, Joshua Hill

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Massachusetts V. Environmental Protection Agency, Exploring The Merits Of Greenhouse Gas Regulation, Elise Korican

Journal of the National Association of Administrative Law Judiciary

The purpose of this case note is to explore the Supreme Court's decision in Massachusetts v. EPA. Part II provides the historical background of global warming, related legislation, the enactment of the Clean Air Act and later amendments, as well as relevant case holdings as to judicial review of agency decisions and implementation of the Clean Air Act. Part III sets out the operative facts of the Massachusetts v. EPA case beginning with the initial rulemaking petition, through the decision of the district court of appeals, and describes the facts as presented to the Supreme Court. Part IV outlines the …

Happy Air!: Strengthening The Role Of Administrative Law In Environmental Enforcement, Erica Bourdon

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Ruckleshaus V. Sierra Club: Muddying The Waters Of Fee-Shifting In Federal Environmental Litigation , Jeanne A. Taylor

Pepperdine Law Review

In numerous federal environmental statutes, Congress gave plaintiffs the right to recover attorneys' fees when the court finds them "appropriate." In Ruckleshaus v. Sierra Club, the United States Supreme Court held that it was only "appropriate" to grant attorneys' fees when the plaintiff had at least partially prevailed on the merits. The decision ignored both the important role environmental groups play in the interpretation and development of regulatory programs through litigation and the ability of the lower courts to determine when attorneys' fees were "appropriate." The Court, instead, focused on the adversarial nature of such groups and the traditional American …

Waste Not, Want Not: Landfill Gas To Energy Projects, Climate Change, And The Clean Air Act, Katherine A. Trisolini

San Diego Journal of Climate & Energy Law

This Article aims to address this gap, proposing how the Rule could be amended to reduce methane generally and enhance LGTE specifically.

The sections discuss legal mechanisms to reduce landfill methane emissions and promote LGTE where appropriate, focusing on the federal Clean Air Act’s potential role in regulating landfill gas emissions. Section II explains the adverse effects of methane emissions generally and the potential benefits of reducing landfill emissions specifically. Section III describes federal emissions standards under the Clean Air Act and incentive programs for expanded use of LGTE. The discussion highlights potential conflicts between divergent means of regulating landfill …

E15 Partial Waivers: How The Epa Exceeded Its Authority And Placed Its Liability On Others, Tyler Brewer

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

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

Erin Ryan

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://www.oup.com/us/catalog/general/subject/Law/ConstitutionalLaw/?view=usa&ci=9780199737987), 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 …

Can't You Smell That Smell? Clean Air Act Fixes For Factory Farm Air Pollution, J. Nicholas Hoover

Student Articles and Papers

Massive facilities that keep large numbers of livestock have overtaken small, independent farms as the primary source of meat, eggs, and dairy in the United States. These concentrated animal feeding operations ("CAFOs) compare more to industrial manufacturing operations than to traditional farms, and emit huge quantities of air pollutants that are harmful to public health, sickening people and damaging the environment. The Environmental Protection Agency ("EPA") possesses statutorily provided tools under the Clean Air Act that it uses to regular other polluting industries. However, this article - after reviewing the rise of CAFOs, examining the threats they pose, and surveying …

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 …

There’S Still A Chance: Why The Clean Air Act Does Not Preempt State Common Law Despite The Fourth Circuit’S Ruling In North Carolina V. Tva, Thomas J. Alves

Hofstra Law Student Works

Many legal hurdles confront plaintiffs who assert common law public nuisance claims against energy companies in an effort to curtail their production of greenhouse gases (GHG’s). These include standing, political question, the dormant commerce clause, and federal preemption. This paper explores federal preemption of common law public nuisance claims by the Clean Air Act (CAA) and concludes that such common law claims remain viable. The Supreme Court’s ruling in International Paper Co. v. Ouellette, 479 U.S. 481 (1987) (Ouellette), combined with the textual, structural, and schematic similarities between the Clean Water Act (CWA) and the CAA, form the basis for …

Legal Issues In Integrated, Multi-Pollutant Planning For Energy And Air Quality, Shawna Ganley, Shelley Welton

Sabin Center for Climate Change Law

In the face of persistent air quality problems, as well as emerging concerns such as greenhouse gases and state budgetary constraints, states are looking to new ways to maximize air quality while minimizing costs. The non-profit Regulatory Assistance Project (RAP) assists states in air quality management, and has recently proposed a new methodology for states to use in order to take a proactive, forward-thinking approach to optimize air quality. RAP’s proposed Integrated, Multi-Pollutant Planning for Energy and Air Quality (IMPEAQ) fosters long-range planning, multi-pollutant analysis and cost optimization modeling to enable state air quality districts to achieve efficient gains in …

Digest Of Hydraulic Fracturing Cases, Smita Walavalkar

Sabin Center for Climate Change Law

As U.S. coal exports increase and new infrastructure is proposed to improve access to markets in Asia, controversy has arisen regarding the scope of environmental review that should be carried out by government. In particular, there is significant disagreement as to whether the end-use of exported coal and the emissions generated by its combustion fall within the scope of environmental review under the National Environmental Policy Act of 1969 (NEPA). This paper considers this issue, examining the requirements of NEPA and its implementing regulations, as well as current practice by Federal agencies.

Encouraging Energy Efficiency Through The Clean Air Act, Moneen Nasmith

Sabin Center for Climate Change Law

Energy efficiency measures provide tremendous opportunities for achieving effective and cost-friendly reductions in the emissions of greenhouse gases. In the absence of more comprehensive legislative efforts, proponents of energy efficiency projects can look to existing environmental laws for tools to promote and encourage energy efficiency and conservation. One such law is the federal Clean Air Act (“CAA”), which empowers the U.S. Environmental Protection Agency (“EPA”) to use a variety of mechanisms to address air pollution and protect the public health. Although the statute and its accompanying regulations are complex, the CAA provides a number of important avenues for advocates of …

Climate Change Action Without Congress, Michael B. Gerrard

Faculty Scholarship

Congress has not enacted major environmental legislation since 1990, and no end to the paralysis is in sight. Nonetheless, there is a great deal that the Obama Administration can do with its existing statutory powers to fight climate change.

What Does Environmental Justice Mean In An Era Of Global Climate Change?, Michael B. Gerrard

Faculty Scholarship

The 1990s saw the emergence of the issue of environmental justice – the disproportionate exposure of low-income and minority communities to environmental hazards - into the U.S. political sphere. The 2000s saw the emergence of global climate change as a political concern. Neither has led to significant legislation at the federal level, and thus old laws designed for different purposes are being utilized with decidedly mixed results.

This article addresses the confluence of environmental justice and global climate change. The two interact in complex ways, as do the approaches to dealing with them both.

The magnitude of the climate challenge …