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Articles 1 - 29 of 29
Full-Text Articles in Environmental Law
Following The Science: Judicial Review Of Climate Science, Maxine Sugarman
Following The Science: Judicial Review Of Climate Science, Maxine Sugarman
Washington Law Review
Climate change is the greatest existential crisis of our time. Yet, to date, Congress has failed to enact the broad-sweeping policies required to reduce greenhouse gas emissions at the rate scientists have deemed necessary to avoid devastating consequences for our planet and all those who inhabit it. In the absence of comprehensive legislative action to solve the climate crisis, the executive branch has become more creative in the use of its authorities under bedrock environmental statutes to develop new climate regulations. Environmental advocates, states, and industry groups that oppose such regulations or assert that agencies could accomplish more under existing …
Why The Congressional Review Act Should Be Repealed, Alex Lipow
Why The Congressional Review Act Should Be Repealed, Alex Lipow
William & Mary Environmental Law and Policy Review
The Congressional Review Act (“CRA”) is a procedure that allows the political branches to quickly repeal certain regulations promulgated by administrative agencies without going through the arduous rule-making process traditionally required. Although it had been successfully used only once before 2017, President Trump and Republicans in Congress used the CRA to repeal sixteen regulations in 2017 and 2018 while President Biden and Democrats in Congress used the CRA three times in 2021. Because the CRA has been used rarely, and its central provisions are barely adjudicated in the judiciary, there are interesting legal questions about how expansively the law may …
Maralex Resources, Inc. V. Barnhardt, Bradley E. Tinker
Maralex Resources, Inc. V. Barnhardt, Bradley E. Tinker
Public Land & Resources Law Review
In Maralex Resources v. Barnhardt, Maralex and property owners brought an action to protect private property from BLM inspections of oil and gas lease sites. The Tenth Circuit looked at the plain meaning of a congressional statute and held in favor of Maralex, finding that BLM lacked authority to require a private landowner to provide BLM with a key to inspect wells of their property. The Tenth Circuit held BLM has the authority to conduct inspections without prior notice on private property lease sites; however, it is required to contact the property owner for permission before entering the property.
Reviving The Environmental Justice Potential Of Title Vi Through Heightened Judicial Review, Rachel Calvert
Reviving The Environmental Justice Potential Of Title Vi Through Heightened Judicial Review, Rachel Calvert
University of Colorado Law Review
Title VI of the Civil Rights Act has unrealized potential to correct the racialized distribution of environmental hazards. The disparate impact regulations implementing this sweeping statute target the institutional discrimination that characterizes environmental injustice. Agency decisions routinely deny claims that federal funds are contributing to projects that disproportionately pollute minority communities, allegedly in violation of Title VI disparate impact regulations. These dismissals are effectively final, as trends in civil rights jurisprudence have essentially foreclosed would-be litigants' opportunities for meaningful judicial review. Their last remaining avenue for recourse is to trigger an arbitrary and capricious review of agency actions, but the …
Center For Biological Diversity V. Zinke, Ryan Hickey
Center For Biological Diversity V. Zinke, Ryan Hickey
Public Land & Resources Law Review
The oft-cited “arbitrary and capricious” standard revived the Center for Biological Diversity’s most recent legal challenge in its decades-long quest to see arctic grayling listed under the Endangered Species Act. While this Ninth Circuit decision did not grant grayling ESA protections, it did require the United States Fish and Wildlife Service to reconsider its 2014 finding that listing grayling as threatened or endangered was unwarranted. In doing so, the court found “range,” as used in the ESA, vague while endorsing the FWS’s 2014 clarification of that term. Finally, this holding identified specific shortcomings of the challenged FWS finding, highlighting how …
Friends Of Animals V. United States Fish & Wildlife Service, Bradley E. Tinker
Friends Of Animals V. United States Fish & Wildlife Service, Bradley E. Tinker
Public Land & Resources Law Review
In Friends of Animals v. United States Fish & Wildlife Service, the Ninth Circuit held that the plain language of the Migratory Bird Treaty Act allows for the removal of one species of bird to benefit another species. Friends of Animals argued that the Service’s experiment permitting the taking of one species––the barred owl––to advance the conservation of a different species––the northern spotted owl––violated the Migratory Bird Treaty Act. The court, however, found that the Act delegates broad implementing discretion to the Secretary of the Interior, and neither the Act nor the underlying international conventions limit the taking of …
Energy-Water Nexus, The Clean Power Plan, And Integration Of Water Resource Concerns Into Energy Decision-Making, Sarah Ladin
Energy-Water Nexus, The Clean Power Plan, And Integration Of Water Resource Concerns Into Energy Decision-Making, Sarah Ladin
Michigan Journal of Environmental & Administrative Law
Energy regulation in the United States is now at a crossroads. The EPA has begun the process to officially repeal the Clean Power Plan and currently has no plan to replace it with new rulemaking to regulate carbon emissions from the U.S. energy sector. Even though the Clean Power Plan is more or less at its end, its regulatory structure stands as a model of the way decision-makers in the United States regulate the energy sector and the environment. Since the beginning of the modern environmental legal system, decision-makers have chosen to silo the system. Statutes and agencies focus on …
Daubert And Judicial Review: How Does An Administrative Agency Distinguish Valid Science From Junk Science?, D. Hiep Truong
Daubert And Judicial Review: How Does An Administrative Agency Distinguish Valid Science From Junk Science?, D. Hiep Truong
Akron Law Review
This broad authority to assess risk, however, leaves too much discretion to administrative agencies. Even more disturbing is the fact that different agencies assess the same risks differently, which leads to inconsistent results. The Environmental Protection Agency (EPA), for example, in determining the cancer risks from pesticides on food, produced an estimated risk of cancer mortality ten times greater than the Food and Drug Administration (FDA). To use a law and economics model, valuing equivalent (or identical) risks differently leaves open the possibility of economic misallocation. For example, if one agency has determined the proper level of risk, and assuming …
Adaptation And The Courtroom: Judging Climate Science, Kirsten Engel, Jonathan Overpeck
Adaptation And The Courtroom: Judging Climate Science, Kirsten Engel, Jonathan Overpeck
Michigan Journal of Environmental & Administrative Law
Climate science is increasingly showing up in courtroom disputes over the duty to adapt to climate change. While judges play a critical role in evaluating scientific evidence, they are not apt to be familiar with the basic methods of climate science nor with the role played by peer review, publication, and training of climate scientists. This Article is an attempt to educate the bench and the bar on the basics of the discipline of climate science, which we contend is a distinct scientific discipline. We propose a series of principles to guide a judge’s evaluation of the reliability and weight …
Environmental Law At The Crossroads: Looking Back 25, Looking Forward 25, Richard J. Lazarus
Environmental Law At The Crossroads: Looking Back 25, Looking Forward 25, Richard J. Lazarus
Michigan Journal of Environmental & Administrative Law
Twenty-five years used to seem like an exceedingly long time. It certainly did when I was graduating from law school and not yet twentyfive. My perspective on time, however, has (naturally) since evolved, much as environmental law itself and the controversies surrounding it have, too, evolved. The contrast between environmental law twenty-five years ago and environmental law today is remarkable and makes clear that environmental law and lawmaking were changing in fundamental ways a generation ago, but those changes are revealed only now with the aid of hindsight. To be sure, the statutory texts of domestic environmental law are strikingly …
Judicial Limitation Of The Epa's Oversight Authority In Clean Water Act Permitting Of Mountaintop Mining Valley Fills , Christopher D. Eaton
Judicial Limitation Of The Epa's Oversight Authority In Clean Water Act Permitting Of Mountaintop Mining Valley Fills , Christopher D. Eaton
Michigan Journal of Environmental & Administrative Law
Mountaintop removal mining operations in the Appalachian region have expanded significantly in recent decades. The practice decimates the mountain ecosystems by leveling forests, filling headwater streams, and producing significant runoff of heavy metals, sediment, and other pollutants that impair the aquatic environment of entire watersheds. Yet environmental permitting of the practice is relatively limited. A recent trend in litigation aimed at halting mining operations has involved challenging permits that authorize the discharge of mining overburden into headwater streams pursuant to the Clean Water Act (CWA). The Army Corps of Engineers has assumed jurisdiction over such discharges under section 404 of …
Investigating 40 C.F.R. Sec. 124.55(B): State-Court Review Of Npdes Permit Certifications, Tad Macfarlan
Investigating 40 C.F.R. Sec. 124.55(B): State-Court Review Of Npdes Permit Certifications, Tad Macfarlan
University of Michigan Journal of Law Reform
This Note investigates the wisdom and validity of 40 CER. § 124.55(b), a Clean Water Act regulation promulgated by the U.S. Environmental Protection Agency (EPA) as part of the National Pollution Discharge Elimination System (NPDES) permitting program. The Clean Water Act provides affected states with an opportunity to certify federally administered NDES permits before issuance by EPA. State certification is a meaningful moment in water quality regulation, and judicial review of these critical decisions takes place in state courts. Unfortunately, 40 C.ER. § 124.55(b), designed to bring certainty and finality to permit-holders, effectively removes state courts from the process of …
The Constitutionality Of Collateral Post-Conviction Claims Of Actual Innocence Comment., Craig M. Jacobs
The Constitutionality Of Collateral Post-Conviction Claims Of Actual Innocence Comment., Craig M. Jacobs
St. Mary's Law Journal
The notion that the state can punish innocent people disrupts public confidence in the usefulness of the criminal justice system. If, by legislative design, the criminal justice system is not concerned with or is accepting of situations where innocent people are punished by the state, should courts take immediate action? Once criminal defendants exhaust the appellate process, Supreme Court Justices have stated, federal courts should not hear claims of actual innocence. Such statements are supported by the federal habeas corpus statute as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). AEDPA requires federal habeas courts to …
Nepa In The Hot Seat: A Proposal For An Office Of Environmental Analysis, Aliza M. Cohen
Nepa In The Hot Seat: A Proposal For An Office Of Environmental Analysis, Aliza M. Cohen
University of Michigan Journal of Law Reform
Judicial deference under the National Environmental Policy Act (NEPA) can be problematic. It is a well-established rule of administrative law that courts will grant a high degree of deference to agency decisions. They do this out of respect for agency expertise and policy judgment. This deference is applied to NEPA lawsuits without acknowledging the special pressures that agencies face while assessing the environmental impacts of their own projects. Though there is a strong argument that these pressures undermine the reasons for deferential review, neither the statute nor the courts have provided plaintiffs with adequate means to remedy this problem. Agency …
Judicial Review Of Arbitration Awards In The Fifth Circuit., Christopher D. Kratovil
Judicial Review Of Arbitration Awards In The Fifth Circuit., Christopher D. Kratovil
St. Mary's Law Journal
In the wake of a defeat in arbitration, trial lawyers seek appellate counsel looking for some method to escape the arbitrator’s decision. Most leave such offices disappointed after having been informed arbitration awards will be set aside by the courts “only in very unusual circumstances.” The Federal Arbitration Act (FAA) fully endorses arbitration and liberally encourages its use as an alternative to traditional litigation. Consistent with Congress’ focus on speed, efficiency, and cost reduction, a critical goal of arbitration is to establish “finality” at the earliest possible point. Unfortunately, early finality is antithetical to robust appellate proceedings. Yet, the FAA …
Facing A Hobson's Choice? The Constitutionality Of The Epa's Administrative Compliance Order Enforcement Scheme Under The Clean Air Act, Christopher M. Wynn
Facing A Hobson's Choice? The Constitutionality Of The Epa's Administrative Compliance Order Enforcement Scheme Under The Clean Air Act, Christopher M. Wynn
Washington and Lee Law Review
No abstract provided.
United States V. Bean: Shoveling After The Elephant., Pannal Alan Sanders
United States V. Bean: Shoveling After The Elephant., Pannal Alan Sanders
St. Mary's Law Journal
Over the years Congress has enacted and amended several versions of the United States Code (U.S.C) § 925(c). Several reported cases illustrate the courts’ early efforts to develop a coherent body of jurisprudence with respect to the procedural and substantive aspects of U.S.C. § 925(c) judicial review. Specifically, the § 925(c) denials of relief by the Director before the congressional appropriations ban commenced in 1993. Although the methodology and reasoning behind these decisions differ in their details, several themes are discernable. First, even without the express provisions for judicial review added by the Firearms Owners Protection Act (FOPA), courts consistently …
Judicial Safeguards Of Federalism And The Environment: Yucca Mountain From A Constitutional Perspective, John C. Yoo, Jennifer L. Koester
Judicial Safeguards Of Federalism And The Environment: Yucca Mountain From A Constitutional Perspective, John C. Yoo, Jennifer L. Koester
University of Colorado Law Review
No abstract provided.
Is The Clean Air Act Unconstitutional?, Cass R. Sunstein
Is The Clean Air Act Unconstitutional?, Cass R. Sunstein
Michigan Law Review
This Article deals with two linked questions. The first involves the future of the Clean Air Act. The particular concern is how the Environmental Protection Agency ("EPA") might be encouraged, with help from reviewing courts, to issue better ambient air quality standards, and in the process to shift from some of the anachronisms of 1970s environmentalism to a more fruitful approach to environmental protection. The second question involves the role of the nondelegation doctrine in American public law, a doctrine that shows unmistakable signs of revival. I will suggest that improved performance by EPA and agencies in general, operating in …
Sepa: A Proposed Standard For Judicial Review Of Agency Decisions Not To Require Preparation Of A Supplemental Environmental Impact Statement, Lori Ann Terry
Sepa: A Proposed Standard For Judicial Review Of Agency Decisions Not To Require Preparation Of A Supplemental Environmental Impact Statement, Lori Ann Terry
Seattle University Law Review
To enable citizens opposing projects and proponents defending projects to predict more accurately the results of litigation and to discourage spurious litigation, a more definitive standard of judicial review is necessary. This Article proposes a standard of judicial review that encompasses components of both the adequacy and negative threshold standards of judicial review. The proposed standard of review discourages lawsuits that are brought merely for purposes of delay while ensuring that the agency acted reasonably in making its determination. Before this new standard can be considered, the context in which it will operate must be reviewed. Part II of this …
Citizen Suits And Civil Penalties Under The Clean Water Act, James L. Thompson
Citizen Suits And Civil Penalties Under The Clean Water Act, James L. Thompson
Michigan Law Review
Part I briefly describes the division that currently exists between the Fourth, Fifth, and First Circuits. Part II analyzes the arguments relating to statutory construction, focusing on statutory language and structure as illuminated by legislative history. Part III examines the broader policy considerations arising when courts decide questions of citizen suit jurisdiction under section 505. Resolution of this issue has usually entailed an extreme interpretation of section 505, either very rarely allowing suits for past violations or allowing them in all cases. Parts II and III argue that the most appropriate response to this problem is actually the less frequently …
A New Approach To Review Of Nepa Findings Of No Significant Impact, Geoffrey Garver
A New Approach To Review Of Nepa Findings Of No Significant Impact, Geoffrey Garver
Michigan Law Review
This Note examines the confused array of judicial approaches for reviewing agency findings of no significant environmental impact and proposes a standardized, comprehensive approach that ensures compliance with both the procedural and substantive aspects of NEPA. Part I reviews agency procedures mandated by NEPA which ensure that agencies develop a detailed record for judicial scrutiny and constitute the legal basis against which to check agency threshold decisions. Part II examines the conflicting approaches of the lower courts, emphasizing their reliance on Supreme Court decisions, their characterization of the threshold decision as legal or factual, and the burden of proof each …
Does Nepa Require An Impact Statement On Inaction?, Michigan Law Review
Does Nepa Require An Impact Statement On Inaction?, Michigan Law Review
Michigan Law Review
This Note considers the question of whether NEPA requires an EIS in cases of official refusal to exercise discretionary agency authority. Part I develops the competing theories for resolving this question. The current judicial attitude, which has excluded important cases with far-reaching environmental effects from the EIS requirement, plainly frustrates the statute's procedural purposes. Regulations promulgated by the Council on Environmental Quality define "major federal action" to include the failure to act under certain circumstances, and offer one alternative to the current approach. But the regulations condition the classification of inaction as action upon reviewability under the Administrative Procedures Act, …
Eis Supplements For Improperly Completed Projects: A Logical Extension Of Judicial Review Under Nepa, Michigan Law Review
Eis Supplements For Improperly Completed Projects: A Logical Extension Of Judicial Review Under Nepa, Michigan Law Review
Michigan Law Review
This Note argues that the private cause of action under NEPA retains its utility despite the completion of the project sued upon. Part I describes the procedural implementation of the policy concerns underlying NEPA through the EIS process for proposed actions, and the EIS supplementation process for project changes made after the original EIS has been prepared. Part II examines current law applicable to projects completed in violation of NEPA and concludes that the denial of post-completion relief conflicts with the underlying goals of NEPA. Part III analyzes extension of relief to completed projects, and proposes court-ordered EIS supplementation for …
Judicial Review Of Regulations Promulgated Under The Surface Mining Control And Reclamation Act Of 1977--In Re Surface Mining Regulation Litigation, Joyce Fleming Ofsa, David E. Godwin
Judicial Review Of Regulations Promulgated Under The Surface Mining Control And Reclamation Act Of 1977--In Re Surface Mining Regulation Litigation, Joyce Fleming Ofsa, David E. Godwin
West Virginia Law Review
No abstract provided.
Judicial Review Under The Federal Water Pollution Control Act Amendments Of 1972: Which Federal Court?
Washington and Lee Law Review
No abstract provided.
Sierra Club V. Morton: Standing Trees In A Thicket Of Justiciability, Patrick L. Baude
Sierra Club V. Morton: Standing Trees In A Thicket Of Justiciability, Patrick L. Baude
Indiana Law Journal
No abstract provided.
Substance And Procedure In The Construction Of The National Environmental Policy Act, Lloyd A. Fox
Substance And Procedure In The Construction Of The National Environmental Policy Act, Lloyd A. Fox
University of Michigan Journal of Law Reform
In 1969 Congress enacted the National Environmental Policy Act (NEPA or Act) in an effort to deal with the many environmental problems facing the United States. In the three years that the Act has been in force, a large number of suits has been filed by environmental organizations seeking to enforce the standards enunciated in NEPA. The courts hearing these cases generally agree that NEPA imposes only procedural duties on administrative agencies. This implies that the courts will merely determine whether the agency in question has complied with the procedural requirements contained in Section 102 of the Act. This further …
Michigan's Environmental Protection Act Of 1970: A Progress Report, Joseph L. Sax, Roger L. Conner
Michigan's Environmental Protection Act Of 1970: A Progress Report, Joseph L. Sax, Roger L. Conner
Michigan Law Review
The Michigan Environmental Protection Act of 1970 (EPA) represents a departure from the long-standing tradition under which control of environmental quality has been left almost exclusively in the hands of regulatory agencies: it gives to ordinary citizens an opportunity to take the initiative in environmental law enforcement.