Law Commons^™

Symposium On Global Environmental Constitutionalism: An Introduction And Overview, James R. May

James R. May

No abstract provided.

Transcript Of The Federalist Society’S 2012 National Lawyers Convention: Environmental Law, Federalism, And The Energy Revolution: Can State And Federal Regulators Adapt To Innovations?, Jason B. Hutt, James R. May, Craig Segall, Joel R. Burcat, Timothy M. Tymkovich

James R. May

No abstract provided.

American Electric Power Company, Inc. V. State Of Connecticut: Brief Of Law Professors As Amici Curiae In Support Of Respondents, Stuart Banner, James R. May

James R. May

No abstract provided.

Vindicating Environmental Rights: Constitutional Protection For Present & Future Generations, Erin Daly, James May

James R. May

Our presentations will chronicle and assess the jurisprudential dimensions of constitutional environmental rights worldwide, encapsulating the preliminary findings of our book, Vindicating Environmental Rights: Constitutional Protection for Present & Future Generations, Cambridge, 2013), especially pertaining to provisions regarding rights to water, and procedural rights.

The constitutions of about 160 nations address environmental matters in some fashion, some by committing to environmental stewardship or the rights of nature, others by recognizing a basic right to a quality environment and still others by ensuring a degree of public participation in environmental decision making. Most people on Earth live under constitutions that protect …

Aep V. Connecticut And The Future Of The Political Question Doctrine, James R. May

James R. May

No abstract provided.

Supreme Court Decides That Clean Air Act Displaces Federal Common Law Claims For Climate Change, James R. May

James R. May

No abstract provided.

Brief Of Law Professors As Amici Curiae In Support Of Respondents, American Electric Power Co. V. State Of Connecticut, No. 10-174, James R. May, Stuart Banner

James R. May

No abstract provided.

U.S. Supreme Court Environmental Cases 2008-2009: A Year Like No Other, James R. May

James R. May

The author of this article says the last term of the U.S. Supreme Court was in many respects like no other in modern environmental law. During the 2008-2009 term, the Supreme Court ruled on novel and important questions concerning preliminary injunctions under the National Environmental Policy Act; cost-benefit analyses and permitting under the Clean Water Act; arranger and joint and several liability under the Comprehensive Environmental Response, Compensation, and Liability Act; and environmental standing. At no turn, says the author, did the court favor the environment over other interests. He says the court even reached down to reverse decisions in …

Not At All: Environmental Sustainability In The Supreme Court, James R. May

James R. May

The principle of “sustainability” is soon to mark its 40th anniversary. It is a concept that has experienced both evolution and stasis. It has shaken the legal foundation, often engaged, recited, and even revered by policymakers, lawmakers, and academics worldwide. This essay assesses the extent to which sustainability registers on the scales of the United States Supreme Court, particularly during the tenure of Chief Justice John Roberts. None of the environmental cases decided thus far during the tenure of Chief Justice Roberts engage sustainability. The word “sustainability” does not appear to exist before the Court. It does not appear in …

Vindicating Fundamental Environmental Rights: Judicial Acceptance Of Constitutionally Entrenched Environmental Rights, James R. May, Erin Daly

James R. May

This article examines the extent to which constitutionally embedded fundamental environmental rights have met the promise of ensuring a right to an adequate environment. It explains these results and suggests ways to neutralize judicial resistance to these emerging constitutional rights. In Part II we explain the prevalence of constitutionally entrenched rights to a quality environment. In Part III, we provide examples of the extent to which courts have enforced these provisions. In Part IV, we examine institutional and structural factors, conceptual disjunctions, and pragmatic considerations that help to explain judicial receptivity to constitutionally entrenched environmental rights. And in Part V …

Constitutional Law And The Future Of Natural Resource Protection, James R. May

James R. May

This is a chapter of a recently published book that examines how constitutional law shapes natural resources law in the United States. Following a brief background, part I identifies and discusses the various constitutional law developments affecting the scope of Congress’s power to regulate the use of natural resources. It focuses primarily on the Commerce Clause (in conjunction with the corresponding case study) and the concomitant extrinsic limits on such authority, including principles of federalism and the Tenth Amendment, as well as the diminished Nondelegation doctrine. Part II does the same for state authority and the dormant Commerce and Supremacy …

The Intersection Of Constitutional Law And Environmental Litigation, James R. May

James R. May

The U.S. Constitution propels the majority of environmental litigation. Thirty years ago, constitutional issues seldom arose in environmental law. Nowadays, nearly two in three federal environmental, energy and land use cases are litigated on constitutional grounds. Such cases implicate approximately twenty constitutional principles involving federalism, separation of powers and individual rights. Constitutional issues in environmental litigation are torn from the headlines, from climate change to natural resource extraction. Accordingly, this chapter aims to contextualize constitutional litigation for environmental lawyers in five ways. Part One provides a brief background to environmental litigation in the United States. Part Two addresses how constitutional …

The Role Of Science And Engineering In Water Regulation Over The Past 100 Years, James R. May, Patrick Clary

James R. May

This article explores how scientific and engineering principles are inexorably linked to the regulation of water. Scientists and engineers first discovered the link between disease and water sources in the mid-19th century. Over the years, scientists and engineers have led the way to identifying water quality problems and their causes. These discoveries have directly contributed to the scope of water regulation in the United States and elsewhere. In addition, changes in water quality regulation have dictated the need for increasingly sophisticated water treatment technologies and engineers have been at the forefront of the development of these water control technologies. This …

Climate Change And The Political Question Doctrine, James R. May

James R. May

No abstract provided.

Constitutional Climate Change In The Courts, James R. May

James R. May

We have entered an interesting constitutional era, one in which a rising sea level will help to buoy a rising tide of climate litigation, the leading edge of which lies constitutional jurisprudence as applied to the political question doctrine, preemption, dormant commerce and compact clauses and standing. In 2007 most of it involves either state action (e.g., to regulate greenhouse gas emissions from new motor vehicles or require climate friendly energy production), or state causes of action (e.g., public or private nuisance). In 2007, the trend was toward dismissing climate-tort cases as presenting political questions. Notably, in Mass. v. EPA, …

Constitutional Law: 2008 Annual Report, James R. May

James R. May

No abstract provided.

Constitutional Law: 2007 Year In Review, James R. May

James R. May

No abstract provided.

Trends In Constitutional Environmental Law, James R. May

James R. May

This article is about the growing field at the intersection of environmental and constitutional law. Thirty years ago, constitutional issues rarely arose in environmental law. Nowadays, nearly two in three federal environmental, energy and land use cases are decided on constitutional grounds invoking no fewer than 18 issues. These include the extent to which Congress can regulate activities that are either traditionally intrastate or not inherently economic in nature (the Commerce Clause), preempt state causes of action (Supremacy Clause), and prescribe state functions (10th Amendment) or subject them to federal actions (11th Amendment). Other issues include whether states can burden …

Clean Water Act Developments: The Aftermath Of Tmdl Litigation: Consent Decrees And Settlement Agreements, James R. May

James R. May

This article provides the latest developments about TMDL lawsuits nationally. It concludes that the results of TMDL settlements are mixed, least so where it matters most. The glory is that EPA has reviewed anew, or had the states review, readily existing and available water quality related data and information for 40,000 waters, finding 20,000 more ones impaired, bringing the national total to 60,000. EPA has agreed to "backstop" TMDL development for about 20,000 of these, and set or approved TMDLs for 10,000 impaired waters. EPA has for the first time reviewed and evaluated CPPs in six states. It has conducted …

Clean Water Act Npdes Developments In The Courts, James R. May

James R. May

Although the Clean Water Act has been in effect for over thirty-three years, many aspects of the Act remain for the Supreme Court to define. In fact, the Court is still called upon to determine certain threshold questions about the Act’s scope and jurisdiction, permits, water quality standards and enforcement. One central question has been the definition of “navigable waters” as it relates to wetlands. The purpose of the Act is to protect the nation’s waters, and a logical question that the Court must address is “to what extent can wetlands be included as navigable waters?” Two cases have been …

Constituting Fundamental Environmental Rights Worldwide, James R. May

James R. May

This article discusses the extent to which nations worldwide have constituted such “fundamental environmental rights” (FERs). Constitutions provide a framework for social order. They also reflect a paradox. While constitutions are usually the product of a convulsive event of majoritarian democracy, most contain antimajoritarian features designed to protect so-called fundamental rights against the tyranny of the majority. Traditional fundamental rights, such as those found in the Bill of Rights to the Constitution of the United States, include protecting for its citizens free speech, religious exercise and voting rights. Does a fundamental, enforceable, individual right to a clean and healthy environment …

“Addition,” “Pollutant,” “Point Source”: Recent Case Developments Affecting The Scope Of Activities Covered By The Cwa, James R. May

James R. May

This article examines recent developments in the interpretation of the words “addition,” “pollutant,” and “point source,” as used in the Clean Water Act. These words have been the subject of much controversy and many interpretations as the CWA leaves them undefined. The Supreme Court has concluded most notably that the transfer of polluted water within the same body of water does not constitute “addition,” however the transfer of pollutants from one body of water into another is addition. Similarly, much controversy has surrounded the possibility of pesticides, lead shot and erosion as additions. Most recently courts have found that pesticides …

The Aftermath Of Tmdl Litigation: Consent Decrees And Settlement Agreements, James R. May

James R. May

The Clean Water Act allows citizens to sue the EPA to “perform any act or duty…which is not discretionary,” and citizen suits have been influential in holding EPA responsible to the ideals of the CWA. This article describes the outcomes of three complex federal consent decrees to clean up waters and protect species in Pennsylvania, Delaware and Virginia through 2011.

The Rise And Repose Of Tmdls On The Load To Perdition: Part I: Litigation, James R. May

James R. May

No abstract provided.

The Availability Of State Environmental Citizen Suits, James R. May

James R. May

No abstract provided.

The Road To Perdition: The Demise Of Tmdl Litigation, James R. May

James R. May

Citizens have filed more than two dozen suits and sent nearly four dozen notices of intent to sue EPA to implement the Clean Water Act's once vaunted "total maximum daily load" (TMDL) program. 33 U.S.C. §1313(d). The results are striking. Since 1997, states and EPA have identified nearly 20,000 waters previously thought to comply with water quality standards that do not. Since 2000, EPA has established or approved nearly 8,000 plans that aim to make these dirty waters fishable and swimmable. EPA is under court order to move the TMDL program along in more than 20 states. TMDL litigation, particularly …

Where The Water Hits The Road: Case Update To Recent Developments In Clean Water Act Litigation, James R. May

James R. May

No abstract provided.

Recent Developments In Tmdl Litigation: 1999-2002, James R. May

James R. May

No abstract provided.

Recent Developments In Clean Water Act Litigation: September 2001-2002, James R. May

James R. May

No abstract provided.