Environmental Law Commons^™

Got Lead In Your Water? The Bipartisan Infrastructure Law May Be Poised To Help, Andrian Lee, Melissa Scanlan

Michigan Journal of Environmental & Administrative Law

Humans have no known safe level of exposure to lead. Blood lead levels have devastating consequences, especially for children, affecting their brain development and almost every organ in their bodies. Various government organizations have enacted measures to combat lead contamination in drinking water and its dangerous human health consequences by replacing lead service lines. At the federal level, the Environmental Protection Agency promulgated the Lead and Copper Rule Revisions, which requires states to replace lead service lines. At the state level, governments have programs to fund the replacement of lead service lines in their communities, but these funds often fall …

Temporary Nuclear Waste Siting Is A Major Problem But Not A Major Question, Dylan Cohen

Michigan Journal of Environmental & Administrative Law

Mitigating global warming requires robust change in the country’s energy policy. One area ripe for such change is nuclear waste storage, which has long confounded the federal government. The Nuclear Regulatory Commission (NRC) seems to have found a solution. It empowered private industry. But it might have run into a problem: the major questions doctrine. Though the major questions doctrine can indeed operate to constrain overzealous agencies, the NRC has acted within its authority, and private industry—by virtue of its Executive-branch grant of authority—should be allowed to help.

A Seat At Whose Table? Analyzing Detroit’S Community Benefit Ordinance As A Tool For Environmental Justice, Sarah Draughn Gargaro

Michigan Journal of Environmental & Administrative Law

The Environmental Protection Agency defines environmental justice as the “just treatment and meaningful involvement” of all people in the decisionmaking that affects the environment and human health. Since the origins of the modern American environmental justice movement in the 1980s, activists have emphasized the importance of self-determination. Environmental justice requires that decision making processes center the voices of the individuals impacted by decisions made about the distributions of environmental assets and harms. There is a significant challenge, however, in designing community engagement practices that meaningfully involve community members. Since the 1990s, community benefits agreements have been heralded as an effective …

Regulating Greenhouse Gas Emissions Under The Endangered Species Act, Eric Biber

Michigan Journal of Environmental & Administrative Law

Despite the devastating impact climate change will have on biodiversity, most legal scholars and policymakers are skeptical that the flagship statute for protecting biodiversity in the United States, the Endangered Species Act (ESA), should be deployed to regulate greenhouse gas emissions. This skepticism has been driven by the concern that using the ESA to regulate greenhouse gases could lead to administrative issues, legal chaos, and political backlash that might endanger the Act overall.

In this article, I draw on three different elements to argue that the ESA could plausibly be used to regulate greenhouse gases. Specifically, I draw on recent …

Why Stop Grazing The Climate Commons?, Brigham Daniels

Michigan Journal of Environmental & Administrative Law

Many have argued that climate change is the textbook example of a tragedy of the commons. Assuming that is correct, to make headway on climate change, we would expect an enforceable agreement that provides for global collective action. The tragedy of the commons assumes that those who cut back when others do not are—to use the formal language of game theorists—suckers. So, the last thing we would expect is a surge of unilateral action. Contrary to theory, for the past decade, unilateral climate action has flourished among governments, businesses, other organizations, and individuals.

Is the number of climate suckers growing …

The Dormant Commerce Clause As A Way To Combat The Anti-Competitive, Anti-Transmission-Development Effects Of State Right Of First Refusal Laws For Electricity Transmission Construction, Walker Mogen

Michigan Journal of Environmental & Administrative Law

To quickly decarbonize the electricity grid, new sources of renewable energy have to be connected to the grid. To connect these sources of energy to the grid, the rate of construction of new electricity infrastructure must increase quickly. The process to construct new electricity transmission infrastructure, however, is filled with chokepoints that slow its construction. State right of first refusal laws for transmission construction are one the things slowing the build out of the grid. These laws limit which companies can construct new transmission infrastructure to utilities and other companies already operating transmission infrastructure in a state. This Note, using …

Armor Or Withdraw? Likely Litigation And Potential Adjudication Of Shoreland Conflicts Along Michigan's Shifting Great Lake Coasts, Richard K. Norton, Guy A. Meadows, Oday Salim, Matthew Piggins, Phillip Washburn, Lauren Ashley Week

Michigan Journal of Environmental & Administrative Law

Michigan enjoys along its inland seas, the Laurentian Great Lakes, one of the longest coastlines in the U.S. Much of that shoreline is privately owned. Because of a confluence of development pressures and irrepressible physical dynamics, growing numbers of Great Lakes shoreland properties, built on shifting sandy shores, are at heightened risk of loss from coastal storm surge, inundation, erosion, and shoreline recession. In response, property owners are installing extensive hardened shoreline armoring structures like seawalls and revetments to arrest those erosional processes. Those structures, however, will substantially impair, if not ultimately destroy, the state’s natural coastal beaches and other …

Beyond “Big Government”: Toward New Legal Histories Of The New Deal Order’S End, Gabriel L. Levine

Michigan Law Review

A Review of Public Citizens: The Attack on Big Government and the Remaking of American Liberalism. By Paul Sabin.

The Particle Problem: Using Rcra Citizen Suits To Fill Gaps In The Clean Air Act, Kurt Wohlers

Michigan Law Review

While the Clean Air Act has done a substantial amount for the environment and the health of individuals in the United States, there is still much to be done. For all its complexity, the Act has perpetuated systemic inequities and allowed harms to fall more heavily on low-income communities and communities of color. This is no less true for particulate matter pollution, which is becoming worse by the year and is a significant cause of illness and premature death. This Note argues that particulate pollution, traditionally only regulated on the federal level within the ambit of the Clean Air Act, …

Environmental Governance By Contract: The Growing Role Of Supply Chain Contracting, Michael P. Vandenburgh, Patricia A. Moore

Michigan Journal of Environmental & Administrative Law

Corporate net zero climate commitments and environmental, social, and governance (ESG) policies have the potential to bypass barriers to international, national, and subnational government action on climate change and other environmental issues. This Article presents the results of a new empirical study that demonstrates the remarkably widespread use of environmental supply chain contracting requirements. The study finds that roughly 80% of the ten largest firms in seven global sectors include environmental requirements in supply chain contracting, a substantial increase over the 50% reported by a comparable study fifteen years ago. The Article concludes that the prevalence of environmental supply chain …

Taxing Risky Development: A New Tool For Increasing Coastal Resilience, James Daher

Michigan Journal of Environmental & Administrative Law

Coastal overdevelopment in the United States is a persistent issue. Climate change continues to increase the risk of flooding and other damage from natural disasters facing many coastal communities. Yet, development in some of the most at-risk areas has not slowed. Policies at the federal government level have encouraged such development by shifting costs of flood-related property damage from the property owner to taxpayers. At the same time, government actors at all levels are actively trying to protect their coastlines through coastal resilience projects. However, there are not enough funds to protect coastal property, especially at the state and local …

Evaluating Project Need For Natural Gas Pipelines In An Age Of Climate Change, Alexandra B. Klass

Law & Economics Working Papers

As the Biden administration attempts to make climate change the focus of many aspects of its domestic and international agenda, an independent federal regulatory agency—the Federal Energy Regulatory Commission (FERC)—finds itself at the center of debates over the nation’s energy policies and greenhouse gas (GHG) emissions. Under Sections 4 and 5 of the Natural Gas Act of 1938, FERC has the authority and obligation to ensure that rates, charges, and rules relating to interstate natural gas sales and transportation are just, reasonable, and nondiscriminatory. Under Section 7 of the Natural Gas Act, FERC also has the authority to grant certificates …

The Public Trust And The Chicago Lakefront: Review Of Kearney & Merrill’S Lakefront: Public Trust And Private Rights In Chicago (Cornell U. Press, 2021), Michael C. Blumm

Michigan Journal of Environmental & Administrative Law

Joseph Kearney and Thomas Merrill’s brilliantly illustrated LAKEFRONT is sure to win American legal history awards for its riveting history of the machinations behind the preservation of the magnificent Chicago lakefront, now dominated by public spaces. The authors weave together a compelling account of how the law affected the development of the post-fire Chicago in the late 19th and 20th centuries—largely made by lawyers and courts and only ratified by legislatures. The book’s title suggests that the story is largely about the public trust doctrine (PTD). But the doctrine is hardly the centerpiece of the authors’ story. What they have …

Un-Repeal: Reviving The Arms Control Impact Statements, David A. Koplow

Michigan Journal of Environmental & Administrative Law

From the late 1970s into the early 1990s, U.S. federal law mandated the executive branch to prepare annual analytical documents known as Arms Control Impact Statements (ACIS). These instruments – obviously patterned after the Environmental Impact Statements (EIS), which had been inaugurated only a few years previously – were intended to prod the national security community to undertake more rigorous, multi-dimensional study of major weapons programs, and to provide Congress and the American public with enhanced, timely information about key arms procurement decisions.

However, unlike the EIS process – which rapidly became institutionalized, and which has proliferated to multiple tiers …

Removing The State Opt-Out For Demand Response, Ben Carroll

Michigan Journal of Environmental & Administrative Law

In 1935, Congress enacted the Federal Power Act. The Act split jurisdiction over electricity generation and distribution between the Federal and state governments. The Act delegated to the Federal government jurisdiction over interstate wholesales and interstate transmission. The Act gave state governments jurisdiction over intrastate wholesales, intrastate transmission, generation, local distribution, and retail sales. Big, vertically-integrated monopoly utilities dominated the market before and for 60 years after the passage of the Act. However, over time, changes in technology and policy in the wholesale market eroded the dominance of those vertically-integrated monopoly utilities and complicated this jurisdictional bright line.

In 2011, …

Unreasonable Risk: The Failure To Ban Asbestos And The Future Of Toxic Substances Regulation, Rachel Rothschild

Law & Economics Working Papers

Every day, Americans are exposed to hundreds of chemicals in the air we breathe, the water we drink, and the products we use. The vast majority of these chemicals have never been tested for safety. Many have been shown to cause serious health harms, ranging from cancer to autoimmune illness to IQ loss. They also have disproportionate effects on some of the most vulnerable populations in our society, such as children, minorities, and industrial workers.

The law that is supposed to protect Americans from dangerous chemical exposures – the Toxic Substances Control Act (TSCA) – was long considered a dead …

Significant Impacts Under Nepa: The Social Cost Of Greenhouse Gases As A Tool To Mitigate Climate Change, Sydney Hofferth

Michigan Journal of Environmental & Administrative Law

The increased severity of the impacts of climate change demand a re-evaluation of the legal tools that could combat it. The National Environmental Policy Act (“NEPA”) was passed to force government agencies to account for the environmental impacts of their actions. However, as it exists today, NEPA fails to require agencies to consider how their actions will mitigate or exacerbate climate change. This Note argues that agencies should be required to consider the social cost of the greenhouse gases associated with potential major actions at various stages of NEPA analysis. This change would result in increased transparency and public engagement …

Evaporating Into Thin Air: The Prosecution Of Air Pollution Crimes During The Trump Administration, Joshua Ozymy, Melissa Jarrell Ozymy

Michigan Journal of Environmental & Administrative Law

Antagonistic to environmental regulation, the Trump Administration sought to significantly roll back federal clean air law enforcement. Yet, we know very little about the impact of the Administration on air pollution criminal enforcement. Through content analysis of all EPA criminal investigations leading to prosecution, we analyze patterns in charging and sentencing and draw out the broader themes in air pollution prosecutions during this period. Our results show a sizable drop in prosecutions compared to the Obama Administration. Although prosecutors managed to pursue serious crimes involving significant harm and criminal conduct and secure over $2.9 billion in monetary penalties, roughly 160 …

Regulating For Energy Justice, Alexandra B. Klass, Gabriel Chan

Articles

In this Article, we explore and critique the foundational norms that shape federal and state energy regulation and suggest pathways for reform that can incorporate principles of “energy justice.” These energy justice principles—developed in academic scholarship and social movements—include the equitable distribution of costs and benefits of the energy system, equitable participation and representation in energy decision making, and restorative justice for structurally marginalized groups.

While new legislation, particularly at the state level, is critical to the effort to advance energy justice, our focus here is on regulators’ ability to implement reforms now using their existing authority to advance the …

Air Pollution As Public Nuisance: Comparing Modern-Day Greenhouse Gas Abatement With Nineteenth-Century Smoke Abatement, Kate Markey

Michigan Law Review

Public nuisance allows plaintiffs to sue actors in tort for causing environmental harm that disrupts the public’s use and enjoyment of the land. In recent years, state and local governments have filed public nuisance actions against oil companies, hoping to hold them responsible for the harm of climate change. Since no plaintiff has prevailed on the merits so far, whether these lawsuits are worth bringing, given the other legal avenues available, remains an open question. This Comment situates these actions in their appropriate historical context to show that these lawsuits are neither unprecedented nor futile. In particular, it examines the …

Eia Directive Procedural Guarantees As Substantive Individual Rights In Il V. Land Nordrhein-Westfalen, Alexis Haddock

Michigan Journal of Environmental & Administrative Law

Environmental impact assessments serve as a necessary tool for attaining the goals of the Aarhus Convention and the EIA Directive (2011/92). The Aarhus Convention and EIA Directive aim to guarantee the public’s right to participate in environmental decision-making, to be provided information necessary to effectively participate, and to have access to a procedure to challenge a decision. The ECJ’s recent case IL v. Land Nordrhein-Westfalen articulates the current interpretation of the European Union Member States’ obligations under the EIA Directive to provide individuals standing to challenge impact assessment decisions. This opinion reaffirmed that in cases where the procedural defect did …

Tightening The Legal ‘Net’: The Constitution’S Supremacy Clause Straddle Of The Power Divide, Steven Ferrey

Michigan Journal of Environmental & Administrative Law

This article analyzes Constitutional Supremacy Clause tensions in preempting state law that addresses climate change and the rapid warming of the Planet. Net metering laws, enacted in 80% of U.S. states, are a primary legal mechanism to control and mitigate climate warming. This article analyzes three recent federal court decisions creating a preemptive Supremacy Clause stand-off between federal and state law and presents a detailed state-by-state analysis of which those 80% of states’ laws could be preempted by legal challenge.

If state net metering laws affected only ordinary technologies, this issue would not be front and center with global warming. …

Funding Global Governance, Kristina B. Daugirdas

Law & Economics Working Papers

Funding is an oft-overlooked but critically important determinant of what public institutions are able to accomplish. This article focuses on the growing role of earmarked voluntary contributions from member states in funding formal international organizations such as the United Nations and the World Health Organization. Heavy reliance on such funds can erode the multilateral governance of international organizations and poses particular risks for two kinds of undertakings: normative work, such as setting standards and identifying best practices; and evaluating the conduct of member states and holding those states accountable, including through public criticism, when they fall short. International organizations have …

Funding Global Governance, Kristina B. Daugirdas

Articles

Funding is an oft-overlooked but critically important determinant of what public institutions are able to accomplish. This article focuses on the growing role of earmarked voluntary contributions from member states in funding formal international organizations such as the United Nations and the World Health Organization. Heavy reliance on such funds can erode the multilateral governance of international organizations and poses particular risks for two kinds of undertakings: normative work, such as setting standards and identifying best practices; and evaluating the conduct of member states and holding those states accountable, including through public criticism, when they fall short. International organizations have …

Nature’S Rights, Christiana Ochoa

Michigan Journal of Environmental & Administrative Law

Do forests and rivers possess standing to sue? Do mountain ranges have substantive rights? A recent issue of The Judges’ Journal, a preeminent publication for American judges, alerts the bench, bar, and policymakers to the rapidly emerging “rights of nature,” predicting that state and federal courts will increasingly see claims asserting such rights. Within the United States, Tribal law has begun to legally recognize the rights of rivers, mountains, and other natural features. Several municipalities across the United States have also acted to recognize the rights of nature. United States courts have not yet addressed the issue, though in 2017, …

Composition Over Division: The Statutes Of The National Forest System, Jamison E. Colburn

Michigan Journal of Environmental & Administrative Law

In September 2020, the U.S. Forest Service took the extraordinary step of closing all 18 national forests in California. The risk of catastrophic fire had become so acute that tolerating any human visitors—who could ignite more—was no longer tenable. Damages from the fires of 2020 are still being tallied, but the catastrophe is hard to deny. Five of the state’s six largest fires on record occurred in 2020. Migrating birds dropped from the sky by the thousands from some combination of asphyxiation, exhaustion, and starvation. An estimated 80% of California’s watersheds had recently burned by 2019, leaving them immediately vulnerable …

Blazing A Path To Wilderness: A Case Study Of Impact Litigation Through The Lens Of Legislative History, Neil Kagan

Michigan Journal of Environmental & Administrative Law

Litigation can be a catalyst for legislation. Legislative history can reveal just how influential litigation is. The legislative history of the laws to designate wilderness in the 1980s provides an object lesson. It demonstrates that litigation both pushed Congress to act and shaped the legislation Congress enacted. This is especially true of the watershed year of 1984. That year, Congress enacted more wilderness laws and added more wilderness areas to the National Wilderness Preservation System in more states than in any other year. The legislative history of the 1984 wilderness laws embedded in bills, hearings, committee meetings, committee reports, and …

The Public Trust Doctrine And The Climate Crisis: Panacea Or Platitude?, Joseph Regalia

Michigan Journal of Environmental & Administrative Law

Over a year of shutting down the global economy during the COVID pandemic achieved about .01 degrees of improvement in global warming. Not even a drop in the bucket. We continue to face a monumental climate crisis. And of the many ways that crisis threatens our environment, winnowing water resources is one of the scariest. One solution that many scholars have turned to is the public trust doctrine. At first blush, this doctrine sounds like a panacea for water management problems: When our water resources are threatened enough that current and future citizen’s access to it is in peril, the …

Protecting Climate Change Law From A Revived Nondelegation Doctrine, Andrew Rockett

Michigan Journal of Environmental & Administrative Law

In an era of political gridlock, a potential revitalization of the nondelegation doctrine threatens the Environmental Protection Agency’s existing framework for regulating greenhouse gas emissions and addressing the urgent threat of climate change. At its apex, the nondelegation doctrine briefly constrained permissible delegations from the legislature to the executive branch after two Supreme Court decisions in 1935. The doctrine has since weakened under the lenient “intelligible principle” standard. That standard today allows the legislative branch to make broad delegations to administrative arms of the executive branch, which then use technological and bureaucratic expertise to clarify, implement, and enforce statutes. The …

Interstate Pollution And The Quandary Of Personal Jurisdiction, Cedar H. Hobbs

Michigan Journal of Environmental & Administrative Law

Current Supreme Court personal jurisdiction analysis does not clearly support a finding of personal jurisdiction for out of state polluters in an interstate toxic tort. Still, some courts, including the Ninth Circuit, have attempted to find personal jurisdiction in these cases, but in doing so have employed tenuous analysis that can result in inconsistent case law. This Note argues that there is a better analytical framework which reemphasizes the role played by territorial borders in personal jurisdictional analysis. Through employing this framework, courts can find personal jurisdiction in interstate toxic torts while also preserving analytically consistent case law.