Law Commons^™

Take It To The Limit: The Illegal Regulation Prohibiting The Take Of Any Threatened Species Under The Endangered Species Act, Jonathan Wood

Jonathan Wood

The Endangered Species Act forbids the “take” – any activity that adversely affects – any member of an endangered species, but only endangered species. The statute also provides for the listing of threatened species, i.e. species that may become endangered, but protects them only by requiring agencies to consider the impacts of their projects on them. Shortly after the statute was adopted, the U.S. Fish and Wildlife Service and National Marine Fisheries Service reversed Congress’ policy choice by adopting a regulation that forbids the take of any threatened species. The regulation is not authorized by the Endangered Species Act, but …

Comparative Environmental Constitutionalism, Erin Daly, James May

Erin Daly

As more and more countries around the globe are amending their constitutions to recognises environmental rights and duties relating to air, water, the use of natural resources, sustainability, climate change, and more, courts are increasingly engaging with these provisions and developing a common constitutional law of environmental rights. This article examines this growing jurisprudence and surveys the central axes around which debates about environmental constitutionalism revolve. First, we examine whether environmental rights are more suitably advanced at the international level or at the national level of constitutional law, as is increasingly the case; the former offers two alternatives—protecting the environment …

Downstream Inundations Caused By Federal Flood Control Dam Operations In A Changing Climate: Getting The Proper Mix Of Takings, Tort, And Compensation, Robert H. Abrams, Jacquiline Bertelsen

Robert H Abrams

The 2012 United States Supreme Court decision in Arkansas Game & Fish Commission v. United States (AG&FC) presented the Court with a claim that the property of a landowner downstream of a flood control dam was taken without compensation as a result of non-permanent inundations of low lying portions of that parcel caused by a change in the dam’s pattern of releases. The Court held that that “government-induced flooding temporary in duration gains no automatic exemption from Takings Clause inspection” and must instead be tested according to the Court’s usual precedents governing temporary physical invasions and regulatory takings.[1] On …

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 …

The Potential Meanings Of A Constitutional Public Trust, John Dernbach

John C. Dernbach

No abstract provided.

Robinson Township: A Model For Environmental Constitutionalism, Erin Daly, James May

Erin Daly

In Robinson Township v. Commonwealth of Pennsylvania, a plurality of the court held that a controversial law encouraging fracking (“Act 13”) violates the state’s constitutional Environmental Rights Amendment, the provisions of which the court held are “on par” with political rights. The decision highlights the challenges of engaging constitutional environmental provisions but demonstrates that, with sufficient creativity and commitment, meeting these challenges lies well within the bounds of judicial capability and authority. Because courts around the world are increasingly being asked to engage in environmental constitutionalism, and Robinson Township's thorough examination of the issues is instructive, not only for cases …

A Legislative History Of Article I, Section 27 Of The Constitution Of The Commonwealth Of Pennsylvania, John Dernbach, Edmund Sonnenberg

John C. Dernbach

No abstract provided.

The Environmental Commerce Clause, Christine A. Klein

Christine A. Klein

This Article studies every commerce clause decision of the modem Supreme Court that involves the scope of governmental authority to regulate the use of natural resources. These decisions comprise what I will call the environmental commerce clause -- the Court's interpretation of the limits mandated by the commerce clause upon federal and state legislation protecting natural resources. Overall, the Court has been limiting the scope of the affirmative commerce clause while simultaneously expanding the reach of the dormant commerce clause. As a result, both federal and state efforts to protect the natural environment have been rendered constitutionally suspect. This study …

Ten Good Practices In Environmental Constitutionalism: Structure, Text And Justiciability, James May, Erin Daly

Erin Daly

Environmental constitutionalism is a relatively recent phenomenon at the confluence of constitutional law, international law, human rights, and environmental law. It embodies the recognition that the environment is a proper subject for protection in constitutional texts and for vindication by constitutional courts worldwide. This White Paper posits ten “good practices” – those attributes that make effective outcomes more likely, but not assured – in environmental constitutionalism for advancing positive environmental outcomes considering energy, and governance and sustainability. Good practices in environmental constitutionalism can serve as a useful construct for considering the relationship between sustainability, energy and governance. Accordingly, Section A …

Constitution And Pollution: Federalism At Work, David R. Hodas

David R. Hodas

No abstract provided.

Constitutional Limitations On Sovereignty, 2014 Edition, Garrett Power

Garrett Power

This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland Francis King Carey School of Law. It is an “open content” casebook intended for classroom use in courses in Constitutional Law, Land Use Control, and Environmental Law. It consists of 130 odd judicial opinions (most rendered by the U.S. Supreme Court) carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. The text considers both the personal right to liberty and the personal right in property.

The …

Revisiting Curd V. Mosaic Fertilizer, Llc. A Perversion Of Private Standing Under Section 376.313 Of Florida’S Pollution Discharge Prevention And Recovery Act, Levi L. Wilkes

Levi L Wilkes

No abstract provided.

The Presentment Clause Meets The Suspension Power: The Affordable Care Act’S Long And Winding Road To Implementation, Mitchell Widener

Mitchell Widener

The presentment clause MEETs the Suspension Power: The Affordable Care Act’s Long and Winding Road to Implementation

Mitchell J. Widener

Abstract

To enact a law, the Presentment Clause of the Constitution mandates that both Houses of Congress present a bill to the President who either signs it into law or vetoes it. The Founders included this provision to prevent presidents from emulating King James II, who would routinely suspend Parliament’s laws to favor political constituents. Additionally, the Presentment Clause served to enhance the separation-of-powers principle implied in the Constitution.

Within the past year, President Obama has suspended multiple portions of …

Extrajudicial Executions And Assaults In American Prisons And The Looming Human Rights Crisis, Robert M. Hardaway

Robert Hardaway

This article examines the current due process crisis in American prisons and proposes reforms that would comply with human rights principles and international law. The number of prisoners killed in American prisons exceeds the number who are executed pursuant to judicial process. The bulk of these extrajudicial killings, and sexual assaults are the proximate consequence of close contact between prisoners. The predominate practice in American prisons is at the extreme ends of the spectrum—that is either placing prisoners in solitary confinement, a practice that has been challenged on Eighth Amendment grounds, or placing them in such close contact with each …

The Future We Want And Constitutionally Enshrined Procedural Rights In Environmental Matters, James May, Erin Daly

Erin Daly

No abstract provided.

Inclusionary Eminent Domain, Gerald S. Dickinson

Gerald S. Dickinson

This article proposes a paradigm shift in takings law, namely “inclusionary eminent domain.” This new normative concept – paradoxical in nature – rethinks eminent domain as an inclusionary land assembly framework that is equipped with multiple tools to help guide municipalities, private developers and communities construct or preserve affordable housing developments. Analogous to inclusionary zoning, inclusionary eminent domain helps us think about how to fix the “exclusionary eminent domain” phenomenon of displacing low-income families by assembling and negotiating the use of land – prior to, during or after condemnation proceedings – to accommodate affordable housing where condemnation threatens to decrease …

The Export Clause And The Constitutionality Of A Cap And Trade Mitigation Policy For Carbon Dioxide, Ross Astoria

Ross Astoria

The Export Clause of the Constitution prohibits the taxing of “Articles exported from any State.” In this paper I examine the effect that Export Clause jurisprudence might have on the choice of national carbon dioxide mitigation policies. I conclude that it is unlikely that a “downstream” price on carbon dioxide emissions could include exported hydrocarbons. One corollary is that, since cap and trade policies are “downstream” pricing mechanism, it would be difficult, perhaps impossible, to craft cap and trade so as to cover exported hydrocarbons. In contrast, an “upstream” carbon tax does not suffer from this constitutional infirmity. I therefore …

The Commons, Capitalism, And The Constitution, George Skouras

George Skouras

Thesis Summary: the erosion of the Commons in the United States has contributed to the deterioration of community and uprooting of people in order to meet the dynamic demands of capitalism. This article suggests countervailing measures to help remedy the situation.

Climate Change Adaptation And Coastal Property Rights: A Massachusetts Case Study, Lara D. Guercio

Lara D. Guercio

This Article examines how existing state laws, including coastal property law and public trust doctrines, are likely to create challenges for the implementation of adaptation strategies proposed to address the effects of climate change—specifically, accelerated sea level rise, increased coastal flooding and storm-related erosion—on coastlines and connected natural resource areas, such as beaches, coastal wetlands, and tidelands. The Article uses Massachusetts, with its highly evolved body of coastal property law and public trust doctrine, as a case study. Mindful of U.S. Supreme Court takings doctrine, the Article analyzes the likely legal challenges to climate change adaptation strategies recently proposed for …

Constitutional Limitations On Land Use Controls, Environmental Regulations And Governmental Exactions, 2013 Edition, Garrett Power

Garrett Power

This electronic book is published in a searchable PDF format as a part of the E-scholarship Repository of the University of Maryland Francis King Carey School of Law. It is an “open content” casebook intended for classroom use in courses in Constitutional Law, Land Use Control, and Environmental Law and. It consists of 130 odd judicial opinions (most rendered by the U.S. Supreme Court) carefully selected from the two hundred years of American constitutional history which address the clash between public sovereignty and private property. The text considers both the personal right to liberty and the personal right in property. …

Shifting Sands: A Meta-Theory For Public Access And Private Property Along The Coast, Melissa K. Scanlan

Melissa K. Scanlan

Over half the United States population currently lives near a coast. As shorelines are used by more people, developed by private owners, and altered by extreme weather, competition over access to water and beaches will intensify, as will the need for a clearer legal theory capable of accommodating competing private and public interests. One such public interest is to walk along the beach, which seems simple enough. However, beach walking often occurs on this ambulatory shoreline where public rights grounded in the public trust doctrine and private rights grounded in property ownership intersect. To varying degrees, each state has a …

Regulatory Takings: Survey Of A Constitutional Culture, James Valvo

James Valvo

Fifth Amendment property protections under the Takings Clause have grown increasingly contentious as governing entities have used regulations to limit what property owners can do with their land. This paper profiles regulatory takings jurisprudence from Pennsylvania Coal, to Penn Central, to Nollan and Dolan, and Tahoe-Sierra. The paper also examines conceptual constructs that have shaped the field’s evolution, including: the doctrine’s origin, the nuisance exception, the changed circumstances argument, unconstitutional conditions, temporary takings and the denominator problem.

Policy Tailors And The Rookie Regulator, Sarah Tran

Sarah Tran

Commentators have long lamented the lack of policy tailoring in the patent system. But unlike other administrative agencies, who regularly tailor regulatory policies to the needs of specific industries, the U.S. Patent and Trademark Office (“PTO”) was widely believed to lack the authority and institutional competence for such policymaking. This Article provides the first comprehensive analysis of recent legislative reforms to the PTO’s policymaking authority. It shows the reforms empower the PTO to have a larger say in patent policy than ever before. The big question is thus: to what extent is it good policy for a rookie regulator to …

Cool Lawsuits: Is Climate Change Litigation Dead After Kivalina V. Exxonmobil?, Mark L. Belleville

Mark L. Belleville

Can emitters of greenhouse gases (“GHGs”) ever be held liable for harms caused by climate change? That is the limited question this Article addresses. While many commentators saw the Supreme Court’s 2007 decision in Massachusetts v. EPA (“Mass. v. EPA”) as an indication that such claims may receive favorable review, recent decisions suggest that there may be no theory under which the ExxonMobils of the world can be held liable for the effects of climate change. Specifically, in September 2012, the Ninth Circuit Court of Appeals held that a native Alaskan village on the tip of a barrier reef, whose …

The Law Of Words: Standing, Environment, And Other Contested Terms, David Cassuto

David N Cassuto

Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167 (2000), exposes fundamental incoherencies within environmental standing doctrine, even while it ostensibly makes standing easier to prove for plaintiffs in environmental citizen suits. According to Laidlaw, an environmental plaintiff needs only to show personal injury to satisfy Article III's standing requirement; she need not show that the alleged statutory violation actually harms the environment. This Article argues that Laidlaw's distinction between injury to the plaintiff and harm to the environment is nonsensical. Both the majority and dissent in Laidlaw incorrectly assume that there exists an objective …

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.

The Ecuadorian Exemplar: The First Ever Vindications Of Constitutional Rights Of Nature, Erin Daly

Erin Daly

The 'Sala de le Corte Provincial' - a provincial court in Ecuador - became the first court ever to vindicate the recently constitutionalized rights of nature. Recognizing the indisputable importance of the rights of nature for present and future generations, the court held the provincial government liable for flooding damages caused by dumping of construction debris. This judicial victory is arguably overshadowed by challenges facing the plaintiffs in seeing the courts order enforced, however. A subsequent case bears witness to the judiciary’s vindication of rights of nature in Ecuador with ever increasing legal effect.

Constitutional Protection For Environmental Rights: The Benefits Of Environmental Process, Erin Daly

Erin Daly

More and more constitutions around the world -- from Bangladesh to Bolivia, and from the Philippines to the countries of the EU -- are explicitly protecting environmental rights and the values of a clean and healthy environment. In many instances, environmental rights are recognized not as substantive entitlements (which would allow litigants to sue if the government polluted their rivers or clearcut their forests), but as procedural rights. Examples of procedural rights include imposing on governments the obligation to consult with communities before they take actions that will affect their environment or giving individuals the right to participate in governmental …

The Empire Strikes Back: How To Prepare & Respond To Environmental Criminal Investigations, Beau James Brock, Andre Belanger

Beau James Brock

Powerpoint presentation on defending corporations, individuals, and governmental entities who are under criminal investigation by EPA.

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

James R. May

No abstract provided.