Law Commons^™

Does The Evolving Concept Of Due Process In Obergefell Justify Judicial Regulation Of Greenhouse Gases And Climate Change?: Juliana V. United States, Bradford Mank

Faculty Articles and Other Publications

Justice Kennedy’s Obergefell opinion, which held that same sex marriage is a fundamental right under the Constitution’s due process clause, reasoned that the principles of substantive due process may evolve because of changing societal views of what constitutes “liberty” under the clause, and that judges may recognize new liberty rights in light of their “reasoned judgement.” In Juliana v. United States, Judge Aiken used her “reasoned judgement” to conclude that evolving principles of substantive due process in the Obergefell decision allowed the court to find that the plaintiffs were entitled to a liberty right to a stable climate system capable …

A Us Clean Energy Transition And The Trump Administration, Joseph P. Tomain

Faculty Articles and Other Publications

The Obama administration undertook several steps giving the US federal government a leadership role in a clean energy transition. Among other actions, the administration develop a Climate Action Plan, successfully negotiated higher fuel vehicle standards with car manufacturers, passed the Clean Power Plan, and signed the Paris Climate Agreement. Although the United States had been party to other international climate agreements and was a signatory to the Rio Declaration, other federal efforts were lax at best.

During his election campaign, Donald Trump promised his supporters to eliminate the Clean Power Plan, withdraw from the Paris Agreement, curtail the Environmental Protection …

Clean Power Policy In The United States, Joseph P. Tomain

Faculty Articles and Other Publications

Within the last year, the Obama administration has taken two significant and dramatic steps addressing the challenges of climate change and demonstrating a renewed leadership role for the US. First, as a signatory to the Paris climate agreements, the US has stepped forward to participate in that global effort after years of recalcitrance. The US, for example, signed the Rio Declaration in 1992 but five years later would not ratify the 1997 Kyoto Protocol. Now, though, the US has reversed course and has reentered the international climate conversation.

The second significant climate initiative came on the domestic front as the …

Article Iii Standing For Private Plaintiffs Challenging Greenhouse Gas Regulations, Bradford Mank

Faculty Articles and Other Publications

An important unresolved question is whether non-state plaintiffs have standing under Article III of the U.S. Constitution to sue in federal courts in climate change cases. In Massachusetts v. EPA, the Supreme Court held a state government could sue the U.S. government to address climate change issues, and suggested, but did not decide, that private litigants might have lesser rights than states. In Washington Environmental Council v. Bellon, the Ninth Circuit held that private groups did not have standing to challenge Washington State’s failure to regulate greenhouse gas (GHG) emissions from five oil refineries, and implied that private plaintiffs may …

Standing To View Other People's Land: The D.C. Circuit's Divided Decision In Sierra Club V. Jewell, Bradford Mank

Faculty Articles and Other Publications

In its divided 2014 decision in Sierra Club v. Jewell, the D.C. Circuit held that plaintiffs who observe landscape have Article III standing to sue in federal court to protect those views even if they have no legal right to physically enter the private property that they view. The D.C. Circuit’s decision could significantly enlarge the standing of plaintiffs to sue federal agencies or private parties over changes to private lands that the plaintiffs have no right to enter. Because the Supreme Court has inconsistently applied both strict and liberal approaches to standing, it is difficult to predict how it …

The Democratization Of Energy, Joseph P. Tomain

Faculty Articles and Other Publications

The electricity industry is changing in dramatic ways.Most significantly, as demonstrated by the Obama Administration's Clean Power Plan, the country is witnessing the merger of energy and environmental regulation. Historically, energy regulation was driven by the need to produce more power for economic growth. By contrast, environmental regulation attended to the pollution of the environment. Production of energy depends upon the use of natural resources, and throughout the fuel cycle from extraction and transportation to the burning and disposal of those resources, the environment is directly affected. Most dramatically, greenhouse gas emissions present climate change challenges. In order to effectively …

No Article Iii Standing For Private Plaintiffs Challenging State Greenhouse Gas Regulations: The Ninth Circuit's Decision In Washington Environmental Council V. Bellon, Bradford Mank

Faculty Articles and Other Publications

In Washington Environmental Council v. Bellon, the Ninth Circuit recently held that private plaintiffs did not have standing to sue in federal court to challenge certain state greenhouse gas (GHG) regulations because the plaintiffs failed to allege that the emissions were significant enough to make a “meaningful contribution” to global GHG levels. By contrast, in Massachusetts v. EPA, the Supreme Court held a state government had standing to sue the federal government for its failure to regulate national GHG emissions because states are “entitled to special solicitude in our standing analysis.” Massachusetts implied but did not decide that private parties …

Book Review, David R. Boyd, The Right To A Healthy Environment, Revitalizing Canada's Constitution, Bradford Mank

Faculty Articles and Other Publications

Boyd’s new book, The Right to a Healthy Environment, attempts to prove that Canadians would benefit if they amended their constitution to recognize the right to a healthy environment. Throughout this work, he emphasizes the general benefits of recognizing environmental rights as human rights and the positive impact recognizing these rights in the Canadian constitution would have on the lives of Canadian citizens. He examines the gradual domestic emergence of environmental rights both in Canadian law and from a global perspective. By including both viewpoints, Boyd attempts to identify the complexities and intricate questions that arise regarding various environmental issues …

Book Review, David R. Boyd, The Environmental Rights Revolution: A Global Study Of Constitutions, Human Rights, And The Environment, Bradford Mank, Suzanne Smith

Faculty Articles and Other Publications

David R. Boyd’s book entitled, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment, provides a comprehensive overview of nations that have incorporated the right to a healthy environment in their constitutions. Throughout his research, Boyd analyzes the effectiveness of environmental protection provisions in national constitutions and seeks to determine whether constitutional provisions guaranteeing the right to a healthy environment have measurable, positive effects on the environment. His wide-ranging compilation and analysis of environmental rights provisions in numerous countries is an important contribution to international human rights literature. Although Boyd explains that treating the right …

Shale Gas And Clean Energy Policy, Joseph P. Tomain

Faculty Articles and Other Publications

If we look behind the numbers on energy consumption, how much of that declining consumption is attributable to increases in energy efficiency and how much is attributable to a poor economy? If we look more closely at shale gas production, particularly when we consider hydraulic fracturing, what environmental costs are associated with developing this domestic resource? And, from a broader perspective, what role should natural gas, including shale gas, play in the country's clean energy future? Will we continue to favor fossil-fuel incumbents at the expense of new entrants in renewable resources and energy efficiency? This Article will address these …

Our Generation's Sputnik Moment: Regulating Energy Innovation, Joseph P. Tomain

Faculty Articles and Other Publications

In his 2011 State of the Union Address, President Obama stressed the necessity of innovation as the key to unlocking our economic future. More pointedly, he stated that now is "our generation's Sputnik moment." Just as the United States responded to national security threats posed by a cold war Russia, today we must respond to threats to our economy and our environment, as well as to our national security, posed by an oil addiction that we have not been able to break for over half a century. The intertwined needs to provide sufficient energy, environmental protection, and a vibrant economy …

Judge Posner’S 'Practical' Theory Of Standing: Closer To Justice Breyer’S Approach To Standing Than Justice Scalia’S, Bradford Mank

Faculty Articles and Other Publications

In American Bottom Conservancy v. U.S. Army Corps of Engineers, Judge Richard Posner of the Seventh Circuit questioned three different grounds articulated by the U.S. Supreme Court for the constitutional doctrine of standing in federal courts and instead argued that the “solidest grounds” for the doctrine of standing are “practical.” In part because of his self-described “pragmatic” approach to legal reasoning, Judge Posner’s maverick views may have led Republican presidents to pass him over for being nominated to the Supreme Court in favor of less brilliant but more predictable conservative judges. Judge Posner’s pragmatic or practical approach to standing …

Informational Standing After Summers, Bradford Mank

Faculty Articles and Other Publications

In its recent The Wilderness Society v. Rey decision, the Ninth Circuit addressed the difficult question of when a statute may establish a right to informational standing. The D.C. Circuit and the Sixth Circuit had previously reached different conclusions about whether environmental statutes promoting public participation or requiring environmental assessments in certain circumstances create a right to informational standing. The Ninth Circuit in its The Wilderness Society decision interpreted the Supreme Court’s 2009 decision in Summers v. Earth Island Institute, which explicitly narrowed procedural rights standing, as implicitly narrowing standing rights in general and concluded that general notice and …

Reading The Standing Tea Leaves In American Electric Power V. Connecticut, Bradford Mank

Faculty Articles and Other Publications

In American Electric Power v. Connecticut (AEP), the U.S. Supreme Court by an equally divided vote of four to four affirmed the Second Circuit’s decision finding standing and jurisdiction in the case. Even though it did not announce the identities of the justices who voted for standing and against standing, the AEP decision took the unusual step of providing some explanation for how the Court divided on the standing question, and, as a result, provided important information about the positions of the justices on the issue. While it is not binding as a decision for the lower courts except …

Standing In Monsanto Co. V. Geertson Seed Farms: Using Economic Injury As A Basis For Standing When Environmental Harm Is Difficult To Prove, Bradford Mank

Faculty Articles and Other Publications

Many of the Supreme Court’s important standing cases have involved environmental disputes. Most recently, in 2010, the Court again addressed standing in an environmental dispute, Monsanto Co. v. Geertson Seed Farms. In Monsanto, the Court did not announce a new standing doctrine. Nevertheless, the Court recognized that an environmental plaintiff may sue without proof of actual environmental harm if it can demonstrate that he or she may suffer economic losses from testing and mitigation measures related to a threatened harm. During the oral argument in Monsanto, Justice Scalia expressed skepticism that the plaintiffs could prove that the …

Standing For Private Parties In Global Warming Cases: Traceable Standing Causation Does Not Require Proximate Causation, Bradford Mank

Faculty Articles and Other Publications

This Article argues courts should apply a relatively liberal approach in deciding standing issues for private plaintiffs pursuing climate change suits even if courts ultimately conclude that it is inappropriate to grant relief on the merits to those same plaintiffs because the Supreme Court has clearly declared that standing is a preliminary question that should be treated separately from decisions on the merits and standing causation requires less proof than proximate causation on the merits. The Supreme Court in its 2007 decision in Massachusetts v. EPA held that a state had standing under Article III of the U.S. Constitution to …

Summers V. Earth Island Institute Rejects Probabilistic Standing, But A 'Realistic Threat' Of Harm Is A Better Standing Test, Bradford Mank

Faculty Articles and Other Publications

In Summers v. Earth Island Institute, the Supreme Court recently rejected Justice Breyer’s dissenting opinion’s proposed test for organizational standing based upon the statistical probability that some of an organization’s members will likely be harmed in the near future by a defendant’s allegedly illegal actions. Implicitly, however, the Court had recognized some form of probabilistic standing in Friends of the Earth v. Laidlaw, which found standing where plaintiffs avoid recreational activities because of “reasonable concerns” about future health injuries from pollution; Summers did not overrule Laidlaw. There is an inherent tension between the Summers and Laidlaw decisions. This Article applies …

Revisiting The Lyons Den: Summers V. Earth Island Institute's Misuse Of Lyons's Realistic Threat Of Harm Standing Test, Bradford Mank

Faculty Articles and Other Publications

In Summers v. Earth Island Institute, 129 S. Ct. 1142 (2009), the majority and dissenting opinions disagreed about how to apply the “realistic threat” test set forth in Los Angeles v. Lyons, 461 U.S. 95, 107 (1983)). According to Justice Scalia’s majority opinion in Summers, the plaintiff organizations did not have standing to obtain injunctive relief because they failed to prove that their members were likely in the near future to hike on government land on which the Forest Service conducted allegedly illegal sales of timber without public notice and comment and that the facts alleged by …

Standing And Statistical Persons: A Risk-Based Approach To Standing, Bradford Mank

Faculty Articles and Other Publications

This Article proposes that any individual has standing to challenge government action that exposes her to an increased lifetime risk of 1 in 1 million or greater of death or serious injury. Because most regulation involves statistical probabilities of harm, a plaintiff challenging a government regulatory action or inaction as insufficiently protective cannot demonstrate that he or she would likely be harmed by the allegedly inadequate regulation, but merely that a different regulation might reduce the probability of future harm. The beneficiaries of a suit seeking better government regulation are, therefore, statistical persons rather than identifiable persons. By contrast, standing …

Standing And Future Generations: Does Massachusetts V. Epa Open Standing For Generations To Come?, Bradford Mank

Faculty Articles and Other Publications

Many issues, especially potential environmental catastrophes caused by climate change, affect not just the living, but also future generations. The bias in our political system against addressing the interests of future generations poses serious obstacles in solving long-term environmental problems such as global warming. Because future generations cannot vote, unelected federal judges are more suited to protect their interests than the political branches.

An important question is whether anyone has standing to sue on behalf of future generations in the federal courts. The Supreme Court's Article III standing test requires plaintiffs to demonstrate that they have personally suffered an injury …

Should States Have Greater Standing Rights Than Ordinary Citizens?: Massachusetts V. Epa's New Standing Test For States, Bradford Mank

Faculty Articles and Other Publications

In Massachusetts v. EPA, 127 S. Ct. 1438 (2007), the Supreme Court held that carbon dioxide (CO²) and other greenhouse gases (GHGs) are air pollutants within the meaning of the Clean Air Act (CAA). Although its decision on the merits is important, the Court's conclusion that Massachusetts had standing to file suit because states are entitled to more lenient standing criteria may have a greater impact in the long-term on legal doctrine. In Massachusetts, the Supreme Court for the first time clearly gave greater standing rights to states than ordinary citizens. The Court, however, failed to explain to what extent …

Title Vi And The Warren County Protests, Bradford Mank

Faculty Articles and Other Publications

One part of the 1982 civil rights struggle against building a Polychlorinated Biphenyls ("PCB") landfill in Warren County, North Carolina, was a suit by the National Association for the Advancement of Colored People ("NAACP") under Title VI of the 1964 Civil Rights Act. Although the suit was unsuccessful, the Warren County protests led to a 1983 General Accounting Office study and a 1987 United Church of Christ's Commission on Racial Justice (CRJ) study, both of which found that hazardous waste facilities were more likely to be located in minority communities. The Warren County protests and the two studies helped build …

Are Public Facilities Different From Private Ones?: Adopting A New Standard Of Review For The Dormant Commerce Clause, Bradford Mank

Faculty Articles and Other Publications

On September 26, 2006, the Supreme Court granted certiorari in United Haulers Association Inc. v. Oneida-Herkimer Solid Waste Management Authority to decide the important issue of whether local governments may require that all waste in their jurisdiction be sent to a publicly-owned waste facility and thereby discriminate equally against both local and out-of-state private firms. The dormant Commerce Clause doctrine (DCCD) grants federal courts authority to invalidate state/local laws that discriminate against foreign goods/firms. The Court has adopted an overly broad per se test that invalidates any local law that theoretically discriminates against foreign firms, even if there is no …

After Gonzales V. Raich: Is The Endangered Species Act Constitutional Under The Commerce Clause?, Bradford Mank

Faculty Articles and Other Publications

In both its 1995 decision United States v. Lopez and in its 2000 decision United States v. Morrison, the Supreme Court had adopted a narrow economic interpretation of congressional authority to regulate intrastate activities under the Commerce Clause. In four separate cases, three circuit courts (the District of Columbia, Fourth, and Fifth Circuits) struggled with deciding whether Congress may still protect endangered and threatened species that have little commercial value under the Commerce Clause after Lopez and Morrison. In each case, the court concluded that Congress did have the authority to protect endangered species under the Commerce Clause, including small …

Implementing Rapanos - Will Justice Kennedy's Significant Nexus Test Provide A Workable Standard For Lower Courts, Regulators And Developers?, Bradford Mank

Faculty Articles and Other Publications

In 2001, the Supreme Court in SWANCC v. U.S. Army Corps of Engineers held that the Corps lacked authority under the 1972 Clean Water Act to regulate wetlands isolated from navigable waters. The Court held that the CWA's jurisdiction is limited to non-navigable waters that have a significant nexus to navigable waters. SWANCC did not address the Corps' regulation of wetlands near non-navigable tributaries. The courts of appeals are divided over if the Corps may regulate tributary wetlands. Mank, The Murky Future of the Clean Water Act After SWANCC, 30 ECOLOGY LAW QUARTERLY 811-891 (2003).

In 2006, the Supreme Court …

Can Plaintiffs Use Multinational Environmental Treaties As Customary International Law To Sue Under The Alien Tort Statute?, Bradford Mank

Faculty Articles and Other Publications

The Alien Tort Statute (ATS) provides that the district courts shall have original jurisdiction over any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. Several decisions have rejected environmental claims under the ATS because they read the ATS narrowly to protect only the most fundamental international human rights such as those prohibiting torture or war crimes and have been unwilling to accept broader claims to a right to life or a healthy environment. In 2002, in Sarei v. Rio Tinto PLC, the District Court …

Prudential Standing And The Dormant Commerce Clause: Why The 'Zone Of Interests' Test Should Not Apply To Constitutional Cases, Bradford Mank

Faculty Articles and Other Publications

In a unique decision, the Fifth Circuit in National Solid Waste Management Ass'n v. Pine Belt Regional Solid Waste Management Authority (NSWMA) used the prudential zone of interests standing test to bar the plaintiffs, who met constitutional standing requirements, from filing a facial, per se challenge under the dormant Commerce Clause. Six Mississippi counties and cities that are members of the Pine Belt Regional Solid Waste Management Authority (the Authority) had enacted flow control ordinances that required all solid waste collected in their six jurisdictions be sent to the Authority's facilities, and, thus, prohibited the export of waste to alternative, …

Standing And Global Warming: Is Injury To All Injury To None?, Bradford Mank

Faculty Articles and Other Publications

Since global warming potentially affects everyone in the world, does any individual have standing to sue the U.S. EPA or other federal agencies to force them to address climate change issues? Suits addressing global warming raise difficult standing questions because some Supreme Court decisions have stated or implied that courts should not allow standing for plaintiffs who file suits alleging general injuries to the public at large because the political branches of government - Congress and the executive branch - are better equipped to resolve such issues. There is a better argument, however, for courts to recognize standing for plaintiffs …

A Scrivener's Error Or Greater Protection Of The Public: Does The Epa Have The Authority To Delist Low-Risk Sources Of Carcinogens From Section 112'S Maximum Achievable Control Technology Requirements?, Bradford Mank

Faculty Articles and Other Publications

This article will focus on the scope of the EPA's authority to delist categories and subcategories of sources, especially those emitting carcinogens.

This article concludes that the EPA's creation of a low-risk subcategory of PCWP sources is improper because the plain language of subsection 112(c)(9)(B)(i) limits the Agency's delisting authority to whole categories of carcinogenic sources. The EPA has failed to meet its heavy burden in attempting to demonstrate that Congress made a drafting error when it omitted the term "subcategory" in subsection 112(c)(9)(B)(i) for carcinogenic chemicals. The doctrine of scrivener's error is inapplicable to the plain language of subsection …

Can Administrative Regulations Interpret Rights Enforceable Under Section 1983?: Why Chevron Deference Survives Sandoval And Gonzaga, Bradford Mank

Faculty Articles and Other Publications

There is a split in the circuits regarding whether and when agency regulations may establish rights enforceable through 42 U.S.C. Section 1983. In 1987, in Wright v. City of Roanoke, the Supreme Court held that a statute and regulations interpreting the statute could create enforceable rights under Section 1983, but left unclear to what extent it had relied on the regulations alone to reach this conclusion. The District of Columbia Circuit and Sixth Circuit have held that at least some valid federal regulations may create rights enforceable through Section 1983. Concluding that only Congress by enacting a statute may create …