Law Commons^™

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.

The Rise And Fall Of Clean Air Act Climate Policy, Nathan Richardson

Michigan Journal of Environmental & Administrative Law

The Clean Air Act has proven to be one of the most successful and durable statutes in American law. After the Supreme Court’s 2008 decision in Massachusetts v. EPA, there was great hope that the Act could be brought to bear on climate change, the most pressing current environmental challenge of our time. Massachusetts was fêted as the most important environmental case ever decided, and, upon it, the Environmental Protection Agency under President Obama built a sweeping program of greenhouse gas regulations, aimed first at emissions from road vehicles, and later at fossil fuel power plants. It was the most …

Opening The Gates Of Cow Palace: Regulating Runoff Manure As A Hazardous Waste Under Rcra, Reed J. Mccalib

Michigan Law Review

In 2015, a federal court held for the first time that the Environmental Protection Agency (“EPA”) may regulate runoff manure as a “solid waste” under the Resource Conservation and Recovery Act (“RCRA”). The holding of Community Ass’n for Restoration of the Environment, Inc. v. Cow Palace, LLC opened the gates to regulation of farms under the nation’s primary toxic waste statute. This Comment argues that, once classified as a “solid waste,” runoff manure fits RCRA’s definition of “hazardous waste” as well. This reclassification would expand EPA’s authority to monitor and respond to the nation’s tragically common groundwater-contamination emergencies.

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 …

Technology-Based? Cost Factoring In U.S. Environmental Standards, Jamison E. Colburn

Michigan Journal of Environmental & Administrative Law

Environmental controls in the United States are often said to be “technology-based” because the polluter’s duties are determined by the available technology for controlling that pollution rather than by the social costs and benefits of doing so. Indeed, this is much of what distinguishes U.S. environmental law post-1970 from that which preceded it. But technology-based standards have in fact weighed the costs of controlling pollution in unique, often obscure ways, yielding an analysis that defies standardization and basic notions of transparency. Often lumped under an umbrella heading called “feasibility” analysis and justified on the grounds that it avoids many of …

Whose Standards Control? Maine V. Mccanhy And The Federal, State, And Tribal Battle Over Water Quality Regulation, Joseph Paul Mortelliti

Michigan Journal of Environmental & Administrative Law

This Note considers the longstanding clash between the United States government and state governments over the management of intrastate waters through the lens of Maine v. McCarthy, an ongoing federal lawsuit. McCarthy confronts whether the United States Environmental Protection Agency can require state water quality standards to specifically safeguard the health and cultural practices of Maine’s Indian tribes, particularly sustenance fishing. A panoply of legal and political factors gave rise to and shaped the course of the litigation, ranging from tribal sovereignty to agency discretion and political gamesmanship. After evaluating the litigants’ arguments and examining previous regulatory collisions between …

Major Questions About The "Major Questions" Doctrine, Kevin O. Leske

Michigan Journal of Environmental & Administrative Law

After over a decade of hibernation, the United States Supreme Court has awoken the “major questions” doctrine, which has re-emerged in an expanded form. Under the doctrine, a court will not defer to an agency’s interpretation of a statutory provision in circumstances where the case involves an issue of deep economic or political significance or where the interpretive question could effectuate an enormous and transformative expansion of the agency’s regulatory authority. While the doctrine’s re-emergence in recent Supreme Court cases has already raised concerns, a subtle shift in its application has gone unnoticed. Unlike in earlier cases, where the Court …

The Private Causes Of Action Under Cercla: Navigating The Intersection Of Sections 107(A) And 113(F), Jeffrey M. Gaba

Michigan Journal of Environmental & Administrative Law

The Comprehensive Environmental, Response, Compensation, and Liability Act (CERCLA) provides three distinct “private” causes of action that allow parties to recover all or part of their cleanup costs from “potentially responsible parties.” Section 107(a)(4)(B) provides a “direct” right of cost recovery. Sections 113(f)(1) and 113(f)(3)(B) provide a right of contribution following a CERCLA civil action or certain judicial or administrative settlements. The relationship among these causes of action has been the source of considerable confusion. Two Supreme Court cases, Cooper Industries, Inc. v. Aviall Services, Inc. and United States v. Atlantic Research Corp. have identified certain situations in which the …

Unpacking Eme Homer: Cost, Proportionality, And Emissions Reductions, Daniel A. Farber

Michigan Journal of Environmental & Administrative Law

Interstate air pollution can prevent even the most diligent downwind state from attaining the air quality levels required by federal law. Allocating responsibility for emissions cuts when multiple upwind states contribute to downwind air quality violations presents a particularly difficult problem. Justice Ginsburg’s opinion for the Court in EPA v. EME Homer City Generator, L.P., gives EPA broad discretion to craft regulatory solutions for this problem. Although the specific statutory provision at issue was deceptively simple, the underlying problem was especially complex because of the large number of states involved. Indeed, neither the majority opinion nor the dissent seems to …

Instrument Choice, Carbon Emissions, And Information, Michael Wara

Michigan Journal of Environmental & Administrative Law

This Article examines the consequences of a previously unrecognized difference between pollutant cap-and-trade schemes and pollution taxes. Implementation of cap-and-trade relies on a forecast of future emissions, while implementation of a pollution tax does not. Realistic policy designs using either regulatory instrument almost always involve a phase-in over time to avoid economic disruption. Cap-and-trade accomplishes this phase-in via a limit on emissions that falls gradually below the forecast of future pollutant emissions. Emissions taxation accomplishes the same via a gradually increasing levy on pollution. Because of the administrative complexity of establishing an emissions trading market, cap-and-trade programs typically require between …

Protecting Human Health And Stewarding The Environment: An Essay Exploring Values In U.S. Environmental Protection Law, Tracy Bach

Michigan Journal of Environmental & Administrative Law

The purpose of this conference is to explore “the relationship between environmental protection and public health and how it should inform our efforts to become better stewards of the environment.” No one would disagree with the assertion that during the last forty years of federal environmental protection, air and water quality have improved and led to concomitant improvements in human health. Exploring the contours of this “relationship,” Environmental Protection Agency (EPA) Administrator Gina McCarthy said in her keynote speech that “[t]he thing is, the word ‘relationship’ is too neutral. The link between the health of our planet and the health …

Environmental Law, Public Health, And The Values Conundrum, David M. Uhlmann

Michigan Journal of Environmental & Administrative Law

In September 1996, when I was nearing the end of my sixth year as a Justice Department environmental crimes prosecutor, one of my colleagues sent me an email that there was a “good-sounding RCRA [Resource Conservation and Recovery Act] knowing endangerment case developing in Idaho.” A twenty-year-old man named Scott Dominguez had collapsed inside a storage tank at an Idaho fertilizer manufacturing facility called Evergreen Resources. Mr. Dominguez could not be rescued for nearly an hour, because firefighters who responded to the scene did not know what was in the tank and what safety precautions they needed to take before …

Complex Value Choices At The Environment-Energy Interface, Hari M. Osofsky

Michigan Journal of Environmental & Administrative Law

During the 2001–02 academic year, I lived in China, teaching U.S. civil rights law and helping to start a labor law clinic. My first day of teaching the fall civil rights course was the day of the September 11 attacks, and that event and reactions to it played a dominant role in my experience of that year. However, it was also a particularly interesting year to be in China from an environmental-energy perspective because the Three Gorges Dam was in the process of being built and brought onlie. At that point, the area was partially flooded and it was one …

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

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 …

Environmental Deliberative Democracy And The Search For Administrative Legitimacy: A Legal, Positivism Approach, Michael Ray Harris

University of Michigan Journal of Law Reform

The failure of regulatory systems over the past two decades to lessen the environment degradation associated with modern human economic output has begun to undermine the legitimacy of environmental lawmaking in the United States and around the world. Recent scholarship suggests that reversal of this trend will require a breach of the environmental administrative apparatus by democratization of a particular kind, namely the inclusion of greater public discourse within the context of regulatory decision-making. This Article examines this claim through the lens of modern legal positivism. Legal positivism provides the tools necessary to test for and identify the specfic structural …

Rationalism In Regulation, Christopher C. Demuth, Douglas H. Ginsburg

Michigan Law Review

Retaking Rationality: How Cost-Benefit Analysis Can Better Protect the Environment and Our Health, by Richard L. Revesz and Michael A. Livermore, aims to convince those who favor more government regulation-in particular environmental groups-that they should embrace cost-benefit analysis and turn it to their purposes. Coauthored by a prominent law school dean and a recent student with a background in environmental advocacy, the book is a jarring combination of roundhouse political polemics and careful academic argument. Sweeping pronouncements are followed by qualifications that leave the sweep of the pronouncements in doubt- rather like the give-and-take of the law school classroom …

A Climate Agenda For The New President, Lisa Heinzerling

Michigan Law Review First Impressions

The Bush Administration squandered eight years denying the reality of climate change and delaying action on it. Nevertheless, the president who comes into office in January will face two happy realities. First, whatever the Bush Administration has done (through obstruction or inaction) on climate change can easily be undone due to its legal and scientific flimsiness. And second, statutes now on the books provide plenty of legal authority for swift action on the most important environmental issue of our time.

A Renewed Role For Conservation In Environmental Policy, Amie Medley

Michigan Law Review First Impressions

Not since President Carter's impassioned speeches in the 1970s, which warned Americans that their country's dependence on oil was "likely to get progressively worse through the rest of this century," has there been serious attention to the role conservation should play in addressing environmental issues such as climate change and sustainability. The next presidential administration should highlight the importance of individuals taking action in their homes and communities in order to decrease the unsustainable demand for natural resources.

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 …

Federal Preemption Of Tort Claims Under Fifra: The Erosion Of A Defense, Valerie Watnick

University of Michigan Journal of Law Reform

With the growth of federal regulation in the last century, federal preemption of state law has been an evolving issue in the area of toxic torts litigation. The preemption doctrine occupies a particularly prominent place in the area of pesticide-related litigation as the judiciary has struggled to decide what, if any, tort claims are preempted by the Federal Insecticide Fungicide and Rodenticide Act of 1972 ("FIFRA "), the federal statute governing the sale and labeling of pesticides in the United States. In Etcheverry v. Tri-Ag Serv. Inc., 22 Cal. 4th 316, 93 Cal. Rptr2d 36 (2000), a case heard by …

Cost-Benefit Default Principles, Cass R. Sunstein

Michigan Law Review

Courts should be reluctant to apply the literal terms of a statute to mandate pointless expenditures of effort. . .. Unless Congress has been extraordinarily rigid, there is likely a basis for an implication of de minimis authority to provide exemption when the burdens of regulation yield a gain of trivial or no value. It seems bizarre that a statute intended to improve human health would .. . lock the agency into looking at only one half of a substance's health effects in determining the maximum level for that substance. [I]t is only where there is "clear congressional intent to …

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 …

Keeping Clean Waters Clean: Making The Clean Water Act's Antidegradation Policy Work, John A. Chilson

University of Michigan Journal of Law Reform

This Note stresses the importance of making the Clean Water Act's antidegradation policy work in order to avoid a system of national waters of equally mediocre quality. The Nation's highest quality and most important waters are not receiving appropriate protection under the Act because the antidegradation policy contains vague definitions, the states fail to review water quality standards every three years and to entertain citizens' petitions, and the Environmental Protection Agency has not taken an active role in ensuring compliance with federal standards. This Note examines the schemes of the Great Lakes States and Florida and hypothesizes that similar provisions …

The New Gold Rush: Mine Tailings In Southeast Alaska And Perversion Of The Clean Water Act, Beth Leibowitz

University of Michigan Journal of Law Reform

Part I of this Note provides a basic explanation of the mine tailings problem. Part II of this Note discusses the evolution of the agencies' tailings decision and the statutory and regulatory context in which it occurred. Part III outlines briefly the actual decision, which involved the theory that neither the EPA nor the Corps should apply the usual CWA permit requirements to the initial discharge of mine waste. Part IV evaluates the legal basis for that decision and concludes, based on the language of the CWA, the EPA's own prior policy, and judicial precedent, that the decision was without …

Enforcement Of Tsca And The Federal Five-Year Statute Of Limitations For Penalty Actions, Teresa A. Holderer

Michigan Law Review

Many years prior to TSCA, Congress enacted a general five-year statute of limitations for actions for the enforcement of civil penalties, fines, and forfeitures, which, if applicable, would alleviate these problems. Although the Agency claims that no statute of limitations applies, this Note argues that the general five-year statute of limitations, found in section 2462 of title 28, should apply to EPA's administrative proceedings to assess penalties as well as to later collection actions in federal courts. Part I details TSCA's enforcement procedures, which create special difficulties when applying section 2462's statute of limitations. Part I also examines how EPA, …

The Dilution Of The Clean Water Act, Mark C. Van Putten, Bradley D. Jackson

University of Michigan Journal of Law Reform

This Article argues that the zero discharge goal of the Clean Water Act is more than naive rhetoric. To the contrary, it is the Act's raison d'être, and it is woven into the fabric of the Act's operative provisions. So understood, the zero discharge goal can and should provide continuing guidance for EPA's implementation of the Act.

Notice By Citizen Plaintiffs In Environmental Litigation, Michigan Law Review

Michigan Law Review

This Note evaluates judicial handling of citizen suits tainted by defective notice. After reviewing the legislative history of the citizen suit provisions, the Note presents an array of judicial responses to defective notice and classifies decisions by their stringency in applying the notice provision. In the final section, the Note argues that Congress's purpose in requiring notice should determine the limits of judicial tolerance of defective notice. It concludes that courts should dismiss citizen suits unless actual notice of intent to sue, whether or not in the form specified by EPA regulations, was given sixty days before the filing of …

Protection For Trade Secrets Under The Toxic Substances Control Act Of 1976, Paula R. Latovick

University of Michigan Journal of Law Reform

This article will examine the protection provided by the Act and the measures the EPA has adopted for implementing the Act's provisions. The approach will be to focus on the different functional areas in which disclosure may take place. Part I examines the scheme for designating information as confidential and the mechanics of the reporting system under TSCA. Part II deals with disclosures of confidential information made while implementing the TSCA. Part III focuses on legal disclosures of information submitted as confidential. Finally, Part IV examines the measures taken within the EPA to guarantee the safety of confidential information, the …

Relaxation Of Implementation Plans Under The 1977 Clean Air Act Amendments, David P. Currie

Michigan Law Review

This Article probes the convoluted ameliorative provisions of the 1977 Amendments in three parts. Section I deals with delayed compliance orders - orders granted to stationary sources unable to meet the statutory deadlines for compliance. Section 113( d) is the fountainhead provision, and besides a general provision for delayed compliance, it also contains specific provisions for sources unable to comply due to retirement of present facilities, due to investment in innovative facilities with the promise of greater pollution reduction in the future or due to government orders to convert from cleaner fuels to coal.

Section II analyzes two specific relief …