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Full-Text Articles in Law
The Twin Environmental Law Problems Of Preemption And Political Scale, Erin Ryan
The Twin Environmental Law Problems Of Preemption And Political Scale, Erin Ryan
Scholarly Publications
This is a daunting moment for the United States environmental movement. Since 2017, it often seems that federal environmental law is being systematically dismantled—most aggressively by the executive branch, but with tacit support from much of the sitting legislature, and likely with increasing support from the judiciary as well. For environmentalists, the assault on the regulatory accomplishments made over decades of previous lawmaking is cause for grief, but it also compels preparation for the challenges yet to come. This chapter advises environmentalists to resist federal preemption of state regulation and to think creatively about how to accomplish the goals of …
Environmental Law. Disrupted., Erin Ryan
Environmental Law. Disrupted., Erin Ryan
Scholarly Publications
The U.S. regulatory environment is changing rapidly, at the same time that visible and profound impacts of climate change are already being felt throughout the world, and enormous, potentially existential threats loom in the not-so-distant future. What does it mean to think about and practice environmental law in this setting? In this latest in a biannual series of postings and essays, the authors, members of the Environmental Law Collaborative (ELC), have taken on the question of whether environmental law as we currently know it is up to the job of addressing these threats; and, if not, what the path forward …
Memo To Environmentalists: Brace For The Three Ps, Erin Ryan
Memo To Environmentalists: Brace For The Three Ps, Erin Ryan
Scholarly Publications
This very short essay, written as a memo to environmental advocates during a destabilizing moment in environmental law, advises them to (1) resist federal preemption of state regulation, (2) scrutinize the strategic deployment of property rights to block future regulation, and (3) think creatively about how to accomplish the goals of national-level policy without the benefit of federal authority. In short, it advises that advocates ensure that the campaign to dismantle federal environmental law does not spill over into displacing state and local efforts to fill the void. They also must push back against the strategic deployment of property rights …
Negotiating Environmental Federalism: Dynamic Federalism As A Strategy For Good Governance, Erin Ryan
Negotiating Environmental Federalism: Dynamic Federalism As A Strategy For Good Governance, Erin Ryan
Scholarly Publications
This symposium piece distills a few important points from my previous research about the need for negotiated governance and the options for accomplishing it—including Negotiating Federalism (https://ssrn.com/abstract=1583132), which identified the pervasive use of intergovernmental bargaining as a tool for dealing with jurisdictional uncertainty; FEDERALISM AND THE TUG OF WAR WITHIN (https://ssrn.com/abstract=1991612), which folded the concept of negotiated governance into a general theory of Balanced Federalism, exploring how contrasting federalism values are managed by various means of consultation, competition, and collaboration; and Environmental Federalism’s Tug of War Within, (https://ssrn.com/abstract=2532687), the closing chapter to an environmental federalism book, in which I applied …
Multilevel Environmental Governance In The United States, Erin Ryan
Multilevel Environmental Governance In The United States, Erin Ryan
Scholarly Publications
This short essay, solicited by the ENVIRONMENTAL SCIENTIST journal, distills the lessons of American experimentation with environmental federalism and multilevel governance for use by other nations (drawing from Environmental Federalism’s Tug of War Within, in THE LAW AND POLICY OF ENVIRONMENTAL FEDERALISM: A COMPARATIVE ANALYSIS (Kalyani Robbins, ed., 2015). Multilevel environmental governance disputes reflect increasing pressure on all levels of government to meet the challenges of regulation in an increasingly interconnected world. In the United States (US), debate over the responsibilities of different levels of government are framed within our system of constitutional federalism, which divides sovereign power between the …
Environmental Federalism’S Tug Of War Within, Erin Ryan
Environmental Federalism’S Tug Of War Within, Erin Ryan
Scholarly Publications
The intensity of federalism disputes reflects inexorable pressure on all levels of government to meet the increasingly complicated challenges of governance in an ever more interconnected world. Yet even as federalism dilemmas continue to erupt all from all corners, environmental law remains at the forefront of controversy. This chapter argues that environmental law is uniquely prone to federalism discord because it inevitably confronts the core question with which federalism grapples — who gets to decide? — in contexts where state and federal claims to power are simultaneously at their strongest. Environmental problems tend to match the need to regulate the …
The Spending Power And Environmental Law After Sebelius, Erin Ryan
The Spending Power And Environmental Law After Sebelius, Erin Ryan
Scholarly Publications
This article analyzes the Supreme Court’s new spending power doctrine and its impact on state-federal bargaining in programs of cooperative federalism, using the laboratory of environmental law. (It expands on the legal analysis in an Issue Brief originally published by the American Constitution Society on Oct. 1, 2013.) After the Supreme Court ruled in the highly charged Affordable Care Act case of 2012, National Federation of Independent Business vs. Sebelius, the political arena erupted in debate over the implications for the health reform initiative and, more generally, the reach of federal law. Analysts fixated on the decision’s dueling Commerce Clause …
Federalism And The Tug Of War Within: Introduction, Erin Ryan
Federalism And The Tug Of War Within: Introduction, Erin Ryan
Scholarly Publications
"Federalism and the Tug of War Within" explores how constitutional interpreters struggle to reconcile the competing values that undergird American federalism, with real consequences for governance that requires local and national collaboration. Drawing examples from the response to Hurricane Katrina, climate governance, health reform, nuclear waste, and other problems that implicate both state and federal authority, it shows how federalism theory can inhibit effective multijurisdictional governance by failing to navigate the tensions within federalism itself. The book argues that American federalism is best understood through the “tug of war” between the good-governance principles that dual sovereignty fosters — including checks …
Obamacare And Federalism’S Tug Of War Within, Erin Ryan
Obamacare And Federalism’S Tug Of War Within, Erin Ryan
Scholarly Publications
This month, the Supreme Court will decide what some believe will be among the most important cases in the history of the institution. In the 'Obamacare' cases, the Court considers whether the Affordable Care Act ('ACA') exceeds the boundaries of federal authority under the various provisions of the Constitution that establish the relationship between local and national governance. Its response will determine the fate of Congress’s efforts to grapple with the nation’s health care crisis, and perhaps other legislative responses to wicked regulatory problems like climate governance or education policy. Whichever way the gavel falls, the decisions will likely impact …