Law Commons^™

‘Rounding Up’ Roundup: One Last Hope For Glyphosate Regulation, Gabrielle Argimón-Cartaya

University of Miami Law Review

Since 1974, Bayer’s Roundup remains the world’s most popular herbicide and pervades United States farmland and food production. However, in 2015, Roundup landed centerstage in an international and presently unsettled debate over whether its active ingredient, glyphosate, causes cancer. Environmental groups regularly call for the de-registration of glyphosate due to the plethora of ailments, ecological harm, and weed resistance resulting from glyphosate use. Dissenting experts, however, believe that strict bans would devastate agriculture because of global dependence and the lack of any popular alternatives. Faced with mounting litigation, silence from the highest court, and unreliable regulators, Bayer continues to effect …

Canadian Maritime Law Jurisdiction Revisited: Quo Vadis?, Aldo Chircop

Dalhousie Law Journal

Maritime jurisdiction in Canada has to contend with the division of powers between the federal and provincial levels. At times, this fact has challenged Canadian courts in explaining what should be the interface between federal and provincial law in dual aspect cases and in determining the applicable law or finding complementary applications of federal and provincial law. This essay reflects on the evolution of maritime law jurisdiction in Canada since the establishment of the Federal Court of Canada in 1971. It discusses the imperative of stability and reality of change in maritime law jurisdiction since then with a focus on …

Climate Security Insights From The Covid-19 Response, Mark P. Nevitt

Faculty Articles

The climate change crisis and COVID-19 crisis are both complex collective action problems. Neither the coronavirus nor greenhouse gas (GHG) emissions respect political borders. Both impose an opportunity cost that penalizes inaction. They are also increasingly understood as nontraditional, novel security threats. Indeed, COVID-19’s human cost is staggering, with American lives lost vastly exceeding those lost in recent armed conflicts. And climate change is both a threat accelerant and a catalyst for conflict—a characterization reinforced in several climate-security reports. To counter COVID-19, the President embraced martial language, stating that he will employ a “wartime footing” to “defeat the virus.” Perhaps …

When Uncle Sam Spills: A State Regulator’S Guide To Enforcement Actions Against The Federal Government Under The Clean Water Act, Ian M. Staeheli

Washington Law Review

The U.S. government is one of the largest polluters on the planet. With over 700 domestic military bases and countless more federal facilities and vessels operating within state borders, there exists an enormous potential for spills and discharges of pollutants into state waters. The regulatory burden for enforcing environmental laws against the federal government falls on the Environmental Protection Agency and state regulators. But enforcing laws and regulations against the federal government and its progeny is a daunting regulatory task.

Other scholarship addresses some of the vexing peculiarities involved when regulating Uncle Sam. Those works discuss the “confusing mess” that …

Regional Cooperative Federalism And The Us Electric Grid, Hannah Jacobs Wiseman

Journal Articles

The U.S. Constitution makes no direct mention of regional governing entities, yet they are an entrenched part of our federalist system. In the area of electric grid governance, the federal government enlists independent, private entities called regional transmission organizations (RTOs) to implement federal policy and achieve state energy goals. RTOs are the most prominent form of regional cooperative federalism, yet other policy spheres, such as opioid control, encompass a similar approach. This is a twist on the classic form of cooperative federalism, in which the federal government relies upon individual states to achieve federal mandates.

The regionally governed electric grid …

Frenemey Federalism, Scott P. Bloomberg

Faculty Publications

This article introduces the concept of Frenemy Federalism. The term “frenemy” is a portmanteau of “friend” and “enemy” that is defined as a person with whom one is friendly despite a fundamental dislike or rivalry. A frenemy relationship develops between the federal and state governments when the governments work together despite having conflicting objectives in an area of policy. In such situations, mutual incentives make cooperation between the governments conducive to achieving their respective goals, allowing what may otherwise be a contentious relationship to find stability. Amidst the growing body of federalism scholarship, I situate Frenemy Federalism as a point …

State Ballot Initiatives And Federal Preemption: How Colorado Voters Have Changed Cooperative Federalism In Wildlife Management, Lucas O'Brien

Natural Resources Journal

In United States wildlife management, there is a notion that the federal government manages land while states manage wildlife. While it is true that states have historically held authority over wildlife, federal agencies often also have the authority, and often an obligation, to manage and conserve wildlife. This overlapping jurisdiction has led to the frequent preemption of state wildlife laws and management tactics by federal statutes or objectives, eroding state authority in this area over the past century. In the 2020 election, Colorado voters passed Proposition 114, a state ballot initiative that requires Colorado Parks and Wildlife to reintroduce wolves …

Firing Employment At Will And Discharging Termination Claims From Employment Discrimination: A Cooperative Federalism Approach To Improve Employment Law, William Corbett

Journal Articles

The article focuses on employment at will and employment discrimination law-and explores how each encroaches upon and weakens the other. It mentions federal-state cooperative approach to "firing" employment at will and discharging termination claims from the federal employment discrimination laws. It also mentions cooperative federalism approach to improve employment law and basics of a wrongful discharge statute.

Putting The Constitutional Horse Before The Cart: Federal Jurisdiction Over Next Generation Environmental Assessment, Anna Johnston

LLM Theses

This thesis explores the extent of federal jurisdiction over a next generation environmental assessment (EA) model proposed by Sinclair, Doelle and Gibson. Examining the jurisprudence and literature, it analyses the scope of federal constitutional authority during the triggering, information-gathering and analysis and decision-making stages of project, strategic and regional assessment. A federal next generation EA law focused on impacts on areas of federal authority could be upheld under various federal constitutional heads of power. Federal jurisdiction is most important at decision-making, and authority to trigger an assessment should be based on the low jurisdictional threshold of reasonable probability of federal …

The Twin Environmental Law Problems Of Preemption And Political Scale, Erin Ryan

Scholarly Publications

This is a daunting moment for the United States environmental movement. Since 2017, it often seems that federal environmental law is being systematically dismantled—most aggressively by the executive branch, but with tacit support from much of the sitting legislature, and likely with increasing support from the judiciary as well. For environmentalists, the assault on the regulatory accomplishments made over decades of previous lawmaking is cause for grief, but it also compels preparation for the challenges yet to come. This chapter advises environmentalists to resist federal preemption of state regulation and to think creatively about how to accomplish the goals of …

Uncooperative Environmental Federalism 2.0, Jonathan H. Adler

Faculty Publications

Has the Trump Administration made good on its pledges to reinvigorate cooperative federalism and constrain environmental regulatory overreach by the federal government? Perhaps less than one would think. This paper, prepared for the Hastings Law Journal symposium, “Revolution of Evolution? Administrative Law in the Age of Trump,” provides a critical assessment of the Trump Administration’s approach to environmental federalism. Despite the Administration’s embrace of “cooperative federalism” rhetoric, environmental policy reforms have not consistently embodied a principled approach to environmental federalism in which the state and federal governments are each encouraged to focus resources on areas of comparative advantage.

Environmental Law. Disrupted., Erin Ryan

Scholarly Publications

The U.S. regulatory environment is changing rapidly, at the same time that visible and profound impacts of climate change are already being felt throughout the world, and enormous, potentially existential threats loom in the not-so-distant future. What does it mean to think about and practice environmental law in this setting? In this latest in a biannual series of postings and essays, the authors, members of the Environmental Law Collaborative (ELC), have taken on the question of whether environmental law as we currently know it is up to the job of addressing these threats; and, if not, what the path forward …

A Cooperative Federalism Approach To Shareholder Arbitration, Zachary D. Clopton, Verity Winship

Cornell Law Faculty Publications

Arbitration dominates private law across an ever-expanding range of fields. Its latest target, however, may not be a new field as much as a new form: mandatory arbitration provisions built into corporate charters and bylaws. Recent developments in corporate law coupled with signals from the Securities and Exchange Commission suggest that regulators may be newly receptive to shareholder arbitration. What they do next may have dramatic consequences for whether and how corporate and securities laws are enforced.

The debate about the merits of arbitration is well worn, but its application to shareholder claims opens the door to a different set …

Cooperative Federalism In Biscayne National Park, Ryan Stoa

Ryan B. Stoa

Biscayne National Park is the largest marine national park in the United States. It contains four distinct ecosystems, encompasses 173,000 acres (only five percent of which are land), and is located within densely populated Miami-Dade County. The bay has a rich history of natural resource utilization, but aggressive residential and industrial development schemes prompted Congress to create Biscayne National Monument in 1968, followed by the designation of Biscayne National Park in 1980. When the dust settled, Florida retained key management powers over the Park, including joint authority over fishery management. States and the federal government occasionally share responsibility for regulating …

Memo To Environmentalists: Brace For The Three Ps, Erin Ryan

Scholarly Publications

This very short essay, written as a memo to environmental advocates during a destabilizing moment in environmental law, advises them to (1) resist federal preemption of state regulation, (2) scrutinize the strategic deployment of property rights to block future regulation, and (3) think creatively about how to accomplish the goals of national-level policy without the benefit of federal authority. In short, it advises that advocates ensure that the campaign to dismantle federal environmental law does not spill over into displacing state and local efforts to fill the void. They also must push back against the strategic deployment of property rights …

Negotiating Environmental Federalism: Dynamic Federalism As A Strategy For Good Governance, Erin Ryan

Scholarly Publications

This symposium piece distills a few important points from my previous research about the need for negotiated governance and the options for accomplishing it—including Negotiating Federalism (https://ssrn.com/abstract=1583132), which identified the pervasive use of intergovernmental bargaining as a tool for dealing with jurisdictional uncertainty; FEDERALISM AND THE TUG OF WAR WITHIN (https://ssrn.com/abstract=1991612), which folded the concept of negotiated governance into a general theory of Balanced Federalism, exploring how contrasting federalism values are managed by various means of consultation, competition, and collaboration; and Environmental Federalism’s Tug of War Within, (https://ssrn.com/abstract=2532687), the closing chapter to an environmental federalism book, in which I applied …

Water, Water Everywhere, But Just How Much Is Clean?: Examining Water Quality Restoration Efforts Under The United States Clean Water Act And The United States-Canada Great Lakes Water Quality Agreement, Jill T. Hauserman

Georgia Journal of International & Comparative Law

No abstract provided.

Subnational Discretion Mediating New Climate Regulatory Challenges, Steven Ferrey

San Diego Journal of Climate & Energy Law

Subnational units of government are critical actors in the U.S. federalist scheme of regulation. It was the original 13 colonies/states which were the core of the American experiment, and banded together as a nation for common defense and commerce after fighting for independence from the United Kingdom. The Constitution vested in the new federal government the treaty and war powers, as well as powers over interstate commerce.

Multilevel Environmental Governance In The United States, Erin Ryan

Scholarly Publications

This short essay, solicited by the ENVIRONMENTAL SCIENTIST journal, distills the lessons of American experimentation with environmental federalism and multilevel governance for use by other nations (drawing from Environmental Federalism’s Tug of War Within, in THE LAW AND POLICY OF ENVIRONMENTAL FEDERALISM: A COMPARATIVE ANALYSIS (Kalyani Robbins, ed., 2015). Multilevel environmental governance disputes reflect increasing pressure on all levels of government to meet the challenges of regulation in an increasingly interconnected world. In the United States (US), debate over the responsibilities of different levels of government are framed within our system of constitutional federalism, which divides sovereign power between the …

Beyond Legality: The Legitimacy Of Executive Action In Immigration Law, Ming H. Chen

Publications

Recent uses of executive action in immigration law have triggered accusations that the President is acting imperially, like a king, or as a lawbreaker. President Obama’s Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parental Accountability (DAPA) programs, which provide protection from deportation and a work permit during a temporary period of lawful presence, serve as the lightning rod for these accusations. But even as legislative and litigation challenges to DACA proceed, many states appear to accept and comply with it, including nearly all of the states that have joined the Texas v United States lawsuit that challenges …

Trust In Immigration Enforcement: State Noncooperation And Sanctuary Cities After Secure Communities, Ming H. Chen

Publications

The conventional wisdom, backed by legitimacy research, is that most people obey most of the laws, most of the time. This turns out to not be the case in a study of state-local participation in immigration law enforcement. Two enforcement programs involving the use of immigration detainers, a vehicle by which the federal government (through ICE) requests that local law enforcement agencies (LEAs) detain immigrants beyond their scheduled release upon suspicion that they are removable, demonstrate the breakdown of conventional wisdom. In the five years following initiation of the Secure Communities program, a significant and growing number of states and …

Environmental Federalism's Tug Of War Within, Erin Ryan

Erin Ryan

Anyone paying attention has noticed that many of the most controversial issues in American governance—health care reform, marriage rights, immigration, drug law, and others—involve questions of federalism. The intensity of these disputes reflects inexorable pressure on all levels of government to meet the increasingly complicated challenges of governance in an ever more interconnected world, where the answers to jurisdictional questions are less and less obvious. Yet even as federalism dilemmas continue to erupt all from all corners, environmental law remains at the forefront of controversy, and it is likely to do so for some time. From mining to nuclear waste …

Environmental Federalism’S Tug Of War Within, Erin Ryan

Scholarly Publications

The intensity of federalism disputes reflects inexorable pressure on all levels of government to meet the increasingly complicated challenges of governance in an ever more interconnected world. Yet even as federalism dilemmas continue to erupt all from all corners, environmental law remains at the forefront of controversy. This chapter argues that environmental law is uniquely prone to federalism discord because it inevitably confronts the core question with which federalism grapples — who gets to decide? — in contexts where state and federal claims to power are simultaneously at their strongest. Environmental problems tend to match the need to regulate the …

Debunking Revisionist Understandings Of Environmental Cooperative Federalism: Collective Action Responses To Air Pollution, Jessica Wentz

GW Law Faculty Publications & Other Works

The federal Clean Air Act initiated Congress's venture into cooperative environmental federalism in 1970. Forty-five years later, misconceptions about the nature of that venture (and similar examples of cooperative federalism under other federal environmental statutes) persist. In particular, some recent judicial decisions characterize environmental cooperative federalism as an equal partnership between the federal Environmental Protection Agency and the states. They also take umbrage at efforts by EPA to override state policies and initiatives that fail to conform to the minimum responsibilities that the statutes impose on the states, characterizing them as unlawful affronts to state sovereignty.

This chapter argues that …

Testimony Before The Committee On Energy And Commerce, Subcommittee On Environment And Economics, U.S. House Of Representatives, Hearing On Constitutional Considerations: States Vs. Federal Environmental Policy Implementation July 11, 2014, Rena I. Steinzor

Rena I. Steinzor

No abstract provided.

Testimony Before The Committee On Energy And Commerce, Subcommittee On Environment And Economics, U.S. House Of Representatives, Hearing On Constitutional Considerations: States Vs. Federal Environmental Policy Implementation July 11, 2014, Rena I. Steinzor

Congressional Testimony

No abstract provided.

The Spending Power And Environmental Law After Sebelius, Erin Ryan

Erin Ryan

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 …

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 …

Endogenous Decentralization In Federal Environmental Policies, Howard F. Chang, Hilary Sigman, Leah G. Traub

All Faculty Scholarship

Under most federal environmental laws and some health and safety laws, states may apply for “primacy,” that is, authority to implement and enforce federal law, through a process known as “authorization.” Some observers fear that states use authorization to adopt more lax policies in a regulatory “race to the bottom.” This paper presents a simple model of the interaction between the federal and state governments in such a scheme of partial decentralization. Our model suggests that the authorization option may not only increase social welfare but also allow more stringent environmental regulations than would otherwise be feasible. Our model also …

The Emergence Of Natural Gas And The Need For Cooperative Federalism To Address A Big "Fracking" Problem., Joshua P. Dennis

San Diego Journal of Climate & Energy Law

This Comment explores the recent emergence of natural gas production, the hydraulic fracturing process and briefly touches on the current regulatory system that oversees its operation. I then explain why the current regulatory system is insufficient to protect individuals and the environment from hydraulic fracturing. And lastly, I argue that a form of cooperative federalism is the best approach to regulate hydraulic fracturing.