Litigation Commons^™

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 …

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 …

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.

The Rule Of Five Guys, Lisa Heinzerling

Michigan Law Review

A Review of The Rule of Five: Making Climate History at the Supreme Court. by Richard J. Lazarus.

Under Coyote’S Mask: Environmental Law, Indigenous Identity, And #Nodapl, Danielle Delaney

Michigan Journal of Race and Law

This Article studies the relationship between the three main lawsuits filed by the Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe, and the Yankton Sioux Tribe against the Dakota Access Pipeline (DaPL) and the mass protests launched from the Sacred Stone and Oceti Sakowin protest camps. The use of environmental law as the primary legal mechanism to challenge the construction of the pipeline distorted the indigenous demand for justice as U.S. federal law is incapable of seeing the full depth of the indigenous worldview supporting their challenge. Indigenous activists constantly re-centered the direct actions and protests within indigenous culture …

Can A State’S Water Rights Be Dammed? Environmental Flows And Federal Dams In The Supreme Court, Reed D. Benson

Michigan Journal of Environmental & Administrative Law

Interstate rivers are subject to the doctrine of equitable apportionment, whereby the Supreme Court seeks to ensure that all states that share such rivers get a fair portion of their benefits. The Court has rarely issued an equitable apportionment decree, however, and there is little law on whether the doctrine protects river flows for environmental purposes. The ongoing Florida v. Georgia litigation in the Supreme Court raises this issue, as Florida seeks to limit consumptive uses by upstream Georgia to preserve flows in the Apalachicola River, which provide both economic and environmental benefits. This Article summarizes both the equitable apportionment …

Tribes, Cities, And Children: Emerging Voices In Environmental Litigation, Nina A. Mendelson

Articles

an environmental nongovernmental organization ("NGO") on behalf of a neighbor or hiker.1 The NGO would allege that the individual faced health risks, that her property was contaminated, or that she could no longer hike, fish, swim, or view wildlife such as the endangered Nile crocodile, as in the well-known case of Lujan v. Defenders of Wildlife.

The Deepwater Horizon Oil Spill Litigation: Proof Of Concept For The Manual For Complex Litigation And The 2015 Amendments To The Federal Rules Of Civil Procedure, John C. Cruden, Steve O'Rourke, Sarah D. Himmelhoch

Michigan Journal of Environmental & Administrative Law

On April 20, 2010, the oil rig Deepwater Horizon exploded in the Gulf of Mexico, killing eleven people and injuring seventeen more. Efforts to stop the spill failed. For the next eighty-seven days, hundreds of millions of barrels of oil poured into the Gulf. This catastrophe not only changed the lives of the families of the dead and injured and the communities who experienced the economic and social disruption of the spill – it challenged the survival of the ecosystem of the ninth largest water body in the world. The oil spill extended fifty miles offshore from Louisiana in the …

Surviving Preemption In A World Of Comprehensive Regulations, Kyle Anne Piasecki

University of Michigan Journal of Law Reform Caveat

The Clean Air Act imposes a federal regulatory regime on a number of sources of air pollution. It does not, however, provide a ready means of relief to individuals harmed by air polluters. Nevertheless, many courts have held that the Clean Air Act preempts state common law tort claims that do provide a means to such relief. The disparate benefits of the Clean Air Act and common law tort claims may indicate different purposes and make court imposed preemption of common law tort claims improper. This Comment argues that the Savings Clause in the Clean Air Act and in parallel …

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 …

Fish And Federalism: How The Asian Carp Litigation Highlights A Decifiency In The Federal Common Law Displacement Analysis, Molly M. Watters

Michigan Journal of Environmental & Administrative Law

In response to the growing threat posed by the progress of Asian carp up the Mississippi River toward the Great Lakes, and with increased frustration with the federal response to the imminent problem, in 2010, five Great Lakes states sued the Army Corps of Engineers and the Metropolitan Water Reclamation District of Greater Chicago to force a more desirable and potentially more effective strategy to prevent the Asian carp from infiltrating the Great Lakes: closing the Chicago locks. This Note examines the federal common law displacement analysis through the lens of the Asian carp litigation. Both the Federal District Court …

The Right Issue, The Wrong Branch: Arguments Against Adjudicating Climate Change Nuisance Claims, Matthew Edwin Miller

Michigan Law Review

Climate change is probably today's greatest global environmental threat, posing dire ecological, economic, and humanitarian consequences. In the absence of a comprehensive regulatory scheme to address the problem, some aggrieved Americans have sought relief from climate-related injuries by suing significant emitters of greenhouse gases under a public nuisance theory. Federal district courts have dismissed four such claims, with each court relying at least in part on the political question doctrine of nonjusticiability. However, one circuit court of appeals has reversed to date, finding that the common law cognizes such claims and that the judiciary is competent and compelled to adjudicate …

The Deepwater Horizon Oil Spill: Potential Insurance Coverage Implications, Lynn K. Neuner, W. Nicholson Price

Articles

More than 300 lawsuits have already been filed in Louisiana, Florida, Texas, Mississippi, and Alabama against BP and other corporations involved in the Deepwater Horizon oil spill, including Transocean, Halliburton, and Cameron, with thousands more anticipated. This article briefly addresses the contours of the coverage lawsuit already filed against BP and other coverage disputes we may see in the future.

The Tribal Sovereign As Citizen: Protecting Indian Country Health And Welfare Through Federal Environmental Citizen Suits, James M. Grijalva

Michigan Journal of Race and Law

This Article suggests that federal environmental citizen suits can serve tribal sovereignty interests without presenting the legal risks tribes face when they attempt direct regulation of non-Indians. Section I briefly describes governmental regulatory roles tribes may play in the implementation of federal environmental law and policy. Section II overviews the conceptual and procedural framework for tribal claims as "citizens." Section III argues that in bringing environmental citizen suits, tribal governments exercise their inherent sovereign power and responsibility to protect the health and welfare of tribal citizens and the quality of the Indian country environment. Section IV concludes that, while suits …

Is Title Vi A Magic Bullet? Environmental Racism In The Context Of Political-Economic Processes And Imperatives, Steven A. Light, Kathryn R.L. Rand

Michigan Journal of Race and Law

This Article examines avenues of redress and pollution prevention for impoverished people of color that flow from Title VI litigation strategies within the larger context of the environmental justice movement. Environmental justice issues can serve as tools with which to question status quo distributive policymaking processes and outcomes. Specifically, this Article concerns itself with practical routes toward increasing distributive justice and democratic efficacy.

In The Wake Of The Snail Darter: An Environmental Law Paradigm And Its Consequences, Zygmunt J.B. Plater

University of Michigan Journal of Law Reform

Everything is connected to everything else: so goes the first law of ecology. This interconnectedness is reflected in environmental law as well, extending beyond natural science and particular resource conflicts to link environmental law intimately with the politics, philosophies, economics, and societal values that form its much larger context-an ecology of human and natural systems.

The Tellico Dam litigation reflected this interconnectedness. On its face, it was a simple environmental confrontation; it will be remembered as the "extreme" case of the little endangered fish, the snail darter, that almost stopped a Tennessee Valley Authority (TVA) dam. But if one picks …

Counterclaim And Countersuit Harassment Of Private Environmental Plaintiffs: The Problem, Its Implications, And Proposed Solutions, Michigan Law Review

Michigan Law Review

This Note first outlines the basic characteristics of the counteraction strategy and considers the implications of its future proliferation and then analyzes proposals to eliminate or ameliorate the impact of the strategy in terms of their effectiveness and practicability.

Securing, Examining, And Cross-Examining Expert Witnesses In Environmental Cases, David Sive

Michigan Law Review

It is necessary at the outset to define the scope of the problem with which this Article will deal. Environmental cases are litigated in both judicial and administrative tribunals. The judicial proceedings include plenary actions and special proceedings and are heard in both federal and state courts. The administrative proceedings include licensing proceedings before federal agencies such as the Federal Power Commission and Atomic Energy Commission. Whether such administrative proceedings are deemed quasi-judicial or not, they are within the scope of this Article so long as they are adversary and involve testimony under oath, examination and cross-examination of witnesses, a …