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Articles 1 - 13 of 13
Full-Text Articles in Law
The Private Causes Of Action Under Cercla: Navigating The Intersection Of Sections 107(A) And 113(F), Jeffrey M. Gaba
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 …
Public Trust Doctrine Implications Of Electricity Production, Lance Noel, Jeremy Firestone
Public Trust Doctrine Implications Of Electricity Production, Lance Noel, Jeremy Firestone
Michigan Journal of Environmental & Administrative Law
The public trust doctrine is a powerful legal tool in property law that requires the sovereign, as a trustee, to protect and manage natural resources. Historically, the public trust doctrine has been used in relationship to navigable waterways and wildlife management. Despite electricity production’s impact on those two areas and the comparatively smaller impacts of renewable energy, electricity production has garnered very little public trust doctrine attention. This Article examines how electricity production implicates the public trust doctrine, primarily through the lens of four states—California, Wisconsin, Hawaii, and New Jersey—and how it would potentially apply to each state’s electricity planning …
Minimization Criteria For Off-Road Vehicle Use, Louisa S. Eberle
Minimization Criteria For Off-Road Vehicle Use, Louisa S. Eberle
Michigan Journal of Environmental & Administrative Law
President Nixon recognized the controversy surrounding off-road vehicle (ORV) use on public lands when he signed Executive Order 11,644 in 1972. The Executive Order set out minimization criteria that bound federal land management agencies’ ORV area and trail designations. Forty years later, agencies are still struggling to implement the minimization criteria. Recent court opinions have struck down implementation attempts by the National Park Service, Bureau of Land Management, and Forest Service. This note argues that agencies require additional guidance for ORV management, particularly in light of case law that sets a floor for achieving minimization. After examining how the mandate …
Parallels In Public And Private Environmental Governance, Sarah E. Light, Eric W. Orts
Parallels In Public And Private Environmental Governance, Sarah E. Light, Eric W. Orts
Michigan Journal of Environmental & Administrative Law
Private actors, including business firms and non-governmental organizations, play an essential role in addressing today’s most serious environmental challenges. Yet scholars have not fully recognized the parallels between public environmental law and the standard-setting and enforcement functions of private environmental governance. “Instrument choice” in environmental law scholarship is generally understood to refer to government actors choosing among options from the public law “toolkit,” which includes prescriptive rules, the creation of property rights, the leveraging of markets, and informational regulation. Each of these major public law tools, however, has a parallel in private environmental governance. This Article first provides a descriptive …
Water, Water, Everywhere: Surface Water Liability, Jill M. Fraley
Water, Water, Everywhere: Surface Water Liability, Jill M. Fraley
Michigan Journal of Environmental & Administrative Law
By 2030 the U.S. will lose around $520 billion annually from its gross domestic product due to flooding. New risks resulting from climate change arise not only from swelling rivers and lakes, but also from stormwater runoff. According to the World Bank, coastal cities risk flooding more from their poor management of surface water than they do from rising sea levels. Surface water liability governs when a landowner is responsible for diverting the flow of water to a neighboring parcel of land. Steep increases in urban flooding will make surface water an enormous source of litigation in the coming decades. …
The Sun Doesn't Always Shine In Ohio: Reevaluating Renewable Portfolio Standards In Light Of Changed Conditions, Jeffrey M. Smith
The Sun Doesn't Always Shine In Ohio: Reevaluating Renewable Portfolio Standards In Light Of Changed Conditions, Jeffrey M. Smith
Michigan Journal of Environmental & Administrative Law
In 2014, with the signing of Senate Bill 310 (S.B. 310), Ohio became the first state to put a temporary “freeze” on its renewable portfolio standard (RPS) and energy efficiency mandates. The law has generated nationwide attention and been criticized as a step back in the state’s clean energy policy. This Note examines the central justifications for the passage of S.B. 310, challenging conventional wisdom that the law does not serve the interests of Ohio citizens. After the passage of Ohio’s RPS in 2008, the economic and energy landscape within the state changed dramatically, due in large part to technological …
Fun With Administrative Law: A Game For Lawyers And Judges, Adam Babich
Fun With Administrative Law: A Game For Lawyers And Judges, Adam Babich
Michigan Journal of Environmental & Administrative Law
The practice of law is not a game. Administrative law in particular can implicate important issues that impact people’s health, safety, and welfare and change business’ profitability or even viability. Nonetheless, it can seem like a game. This is because courts rarely explain administrative law rulings in terms of the public purposes and policies at issue in lawsuits. Instead, the courts’ administrative law opinions tend to turn on arcane interpretive doctrines with silly names, such as the “Chevron two-step” or “Chevron step zero.” To advance doctrinal arguments, advocates and courts engage in linguistic debates that resemble a smokescreen—tending to obscure …
A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald J. Kochan
A Framework For Understanding Property Regulation And Land Use Control From A Dynamic Perspective, Donald J. Kochan
Michigan Journal of Environmental & Administrative Law
Our land use control system operates across a variety of multidimensional and dynamic categories. Learning to navigate within and between these categories requires an appreciation for their interconnected, dynamic, and textured components and an awareness of alternative mechanisms for achieving one’s land use control preferences and one’s desired ends. Whether seeking to minimize controls as a property owner or attempting to place controls on the land uses of another, one should take time to understand the full ecology of the system. This Article looks at four broad categories of control: (1) no controls, or the state of nature; (2) judicial …
Cooperative Mineral Interest Development In The Lone Star State: It's Time To Mess With Texas, Matthew K. Trawick
Cooperative Mineral Interest Development In The Lone Star State: It's Time To Mess With Texas, Matthew K. Trawick
Michigan Journal of Environmental & Administrative Law
Since the early discoveries of the Spindletop, King Ranch, and East Texas oil fields, the oil and gas industry has dominated the Texas economy. The industry has also played an important role in shaping state politics and culture. The oil boom of the early 1900s created thousands of jobs for ordinary workers and immense wealth for a select few. Early Texas oil barons made headlines because of their lavish lifestyles and often extreme political beliefs. Legendary wildcatter H.L. Hunt typified this oil-fueled exuberance. Hunt became one of the eight richest individuals in the United States after securing mineral rights to …
Unpacking Eme Homer: Cost, Proportionality, And Emissions Reductions, Daniel A. Farber
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
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 …
Too Many Cooks In The Climate Change Kitchen: The Case For An Administrative Remedy For Damages Caused By Increased Greenhouse Gas Concentrations, Benjamin Reese
Michigan Journal of Environmental & Administrative Law
Recent federal and state court decisions have made clear that federal common law claims against emitters of greenhouse gases are not sustainable; however, those same courts seem to have given state common law tort claims the green light, at least if the claims are brought in the state where the polluters are located. This Note contends that such suits are not an adequate remedy for those injured by climate change because they will face nearly insurmountable barriers in state court, and because there are major policy-level drawbacks to relying on state tort law rather than a federal solution. This Note …
Front Matter
Michigan Journal of Environmental & Administrative Law
No abstract provided.