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Articles 1 - 26 of 26
Full-Text Articles in Law
Aep V. Connecticut And The Future Of The Political Question Doctrine, James R. May
Aep V. Connecticut And The Future Of The Political Question Doctrine, James R. May
James R. May
No abstract provided.
U.S. Supreme Court Environmental Cases 2008-2009: A Year Like No Other, James R. May
U.S. Supreme Court Environmental Cases 2008-2009: A Year Like No Other, James R. May
James R. May
The author of this article says the last term of the U.S. Supreme Court was in many respects like no other in modern environmental law. During the 2008-2009 term, the Supreme Court ruled on novel and important questions concerning preliminary injunctions under the National Environmental Policy Act; cost-benefit analyses and permitting under the Clean Water Act; arranger and joint and several liability under the Comprehensive Environmental Response, Compensation, and Liability Act; and environmental standing. At no turn, says the author, did the court favor the environment over other interests. He says the court even reached down to reverse decisions in …
Not At All: Environmental Sustainability In The Supreme Court, James R. May
Not At All: Environmental Sustainability In The Supreme Court, James R. May
James R. May
The principle of “sustainability” is soon to mark its 40th anniversary. It is a concept that has experienced both evolution and stasis. It has shaken the legal foundation, often engaged, recited, and even revered by policymakers, lawmakers, and academics worldwide. This essay assesses the extent to which sustainability registers on the scales of the United States Supreme Court, particularly during the tenure of Chief Justice John Roberts. None of the environmental cases decided thus far during the tenure of Chief Justice Roberts engage sustainability. The word “sustainability” does not appear to exist before the Court. It does not appear in …
Vindicating Fundamental Environmental Rights: Judicial Acceptance Of Constitutionally Entrenched Environmental Rights, James R. May, Erin Daly
Vindicating Fundamental Environmental Rights: Judicial Acceptance Of Constitutionally Entrenched Environmental Rights, James R. May, Erin Daly
James R. May
This article examines the extent to which constitutionally embedded fundamental environmental rights have met the promise of ensuring a right to an adequate environment. It explains these results and suggests ways to neutralize judicial resistance to these emerging constitutional rights. In Part II we explain the prevalence of constitutionally entrenched rights to a quality environment. In Part III, we provide examples of the extent to which courts have enforced these provisions. In Part IV, we examine institutional and structural factors, conceptual disjunctions, and pragmatic considerations that help to explain judicial receptivity to constitutionally entrenched environmental rights. And in Part V …
Constitutional Law And The Future Of Natural Resource Protection, James R. May
Constitutional Law And The Future Of Natural Resource Protection, James R. May
James R. May
This is a chapter of a recently published book that examines how constitutional law shapes natural resources law in the United States. Following a brief background, part I identifies and discusses the various constitutional law developments affecting the scope of Congress’s power to regulate the use of natural resources. It focuses primarily on the Commerce Clause (in conjunction with the corresponding case study) and the concomitant extrinsic limits on such authority, including principles of federalism and the Tenth Amendment, as well as the diminished Nondelegation doctrine. Part II does the same for state authority and the dormant Commerce and Supremacy …
The Intersection Of Constitutional Law And Environmental Litigation, James R. May
The Intersection Of Constitutional Law And Environmental Litigation, James R. May
James R. May
The U.S. Constitution propels the majority of environmental litigation. Thirty years ago, constitutional issues seldom arose in environmental law. Nowadays, nearly two in three federal environmental, energy and land use cases are litigated on constitutional grounds. Such cases implicate approximately twenty constitutional principles involving federalism, separation of powers and individual rights. Constitutional issues in environmental litigation are torn from the headlines, from climate change to natural resource extraction. Accordingly, this chapter aims to contextualize constitutional litigation for environmental lawyers in five ways. Part One provides a brief background to environmental litigation in the United States. Part Two addresses how constitutional …
The Role Of Science And Engineering In Water Regulation Over The Past 100 Years, James R. May, Patrick Clary
The Role Of Science And Engineering In Water Regulation Over The Past 100 Years, James R. May, Patrick Clary
James R. May
This article explores how scientific and engineering principles are inexorably linked to the regulation of water. Scientists and engineers first discovered the link between disease and water sources in the mid-19th century. Over the years, scientists and engineers have led the way to identifying water quality problems and their causes. These discoveries have directly contributed to the scope of water regulation in the United States and elsewhere. In addition, changes in water quality regulation have dictated the need for increasingly sophisticated water treatment technologies and engineers have been at the forefront of the development of these water control technologies. This …
Constitutional Climate Change In The Courts, James R. May
Constitutional Climate Change In The Courts, James R. May
James R. May
We have entered an interesting constitutional era, one in which a rising sea level will help to buoy a rising tide of climate litigation, the leading edge of which lies constitutional jurisprudence as applied to the political question doctrine, preemption, dormant commerce and compact clauses and standing. In 2007 most of it involves either state action (e.g., to regulate greenhouse gas emissions from new motor vehicles or require climate friendly energy production), or state causes of action (e.g., public or private nuisance). In 2007, the trend was toward dismissing climate-tort cases as presenting political questions. Notably, in Mass. v. EPA, …
Climate Change, Constitutional Consignment, And The Political Question Doctrine, James R. May
Climate Change, Constitutional Consignment, And The Political Question Doctrine, James R. May
James R. May
Recently states and individuals have turned to federal common law causes of action to provide equitable and legal relief for climate change. Thus far, every federal court to consider these claims has held that they raise non-justiciable political questions consigned to the coordinate branches. These courts reason that federal courts lack jurisdiction over climate cases because climate change is textually committed elsewhere, there are no judicial standards to apply, and the elected branches have yet to render an initial policy determination about the subject. This article concludes that these courts either misapply or misapprehend the doctrine. It concedes that federal …
Of Happy Incidents, Climate, Federalism, And Preemption, James R. May
Of Happy Incidents, Climate, Federalism, And Preemption, James R. May
James R. May
This Article examines the shape of things to come in the overlapping realm of federalism and preemption. It questions whether and to what extent notions of federalism shape how federal law - or the absence of it - preempts states from taking measures to address climate change. A burgeoning body of legal scholarship mulls whether federal law ought to preempt state action. There is yet relatively spare legal scholarship on preemption reflecting recent developments in the courts and at EPA. Part One explains how federalism principles have shaped responses to climate change. It observes how allowing states to take steps …
Constitutional Law: 2008 Annual Report, James R. May
Constitutional Law: 2008 Annual Report, James R. May
James R. May
No abstract provided.
Constitutional Law: 2007 Year In Review, James R. May
Constitutional Law: 2007 Year In Review, James R. May
James R. May
No abstract provided.
Trends In Constitutional Environmental Law, James R. May
Trends In Constitutional Environmental Law, James R. May
James R. May
This article is about the growing field at the intersection of environmental and constitutional law. Thirty years ago, constitutional issues rarely arose in environmental law. Nowadays, nearly two in three federal environmental, energy and land use cases are decided on constitutional grounds invoking no fewer than 18 issues. These include the extent to which Congress can regulate activities that are either traditionally intrastate or not inherently economic in nature (the Commerce Clause), preempt state causes of action (Supremacy Clause), and prescribe state functions (10th Amendment) or subject them to federal actions (11th Amendment). Other issues include whether states can burden …
Clean Water Act Developments: The Aftermath Of Tmdl Litigation: Consent Decrees And Settlement Agreements, James R. May
Clean Water Act Developments: The Aftermath Of Tmdl Litigation: Consent Decrees And Settlement Agreements, James R. May
James R. May
This article provides the latest developments about TMDL lawsuits nationally. It concludes that the results of TMDL settlements are mixed, least so where it matters most. The glory is that EPA has reviewed anew, or had the states review, readily existing and available water quality related data and information for 40,000 waters, finding 20,000 more ones impaired, bringing the national total to 60,000. EPA has agreed to "backstop" TMDL development for about 20,000 of these, and set or approved TMDLs for 10,000 impaired waters. EPA has for the first time reviewed and evaluated CPPs in six states. It has conducted …
Clean Water Act Npdes Developments In The Courts, James R. May
Clean Water Act Npdes Developments In The Courts, James R. May
James R. May
Although the Clean Water Act has been in effect for over thirty-three years, many aspects of the Act remain for the Supreme Court to define. In fact, the Court is still called upon to determine certain threshold questions about the Act’s scope and jurisdiction, permits, water quality standards and enforcement. One central question has been the definition of “navigable waters” as it relates to wetlands. The purpose of the Act is to protect the nation’s waters, and a logical question that the Court must address is “to what extent can wetlands be included as navigable waters?” Two cases have been …
Constituting Fundamental Environmental Rights Worldwide, James R. May
Constituting Fundamental Environmental Rights Worldwide, James R. May
James R. May
This article discusses the extent to which nations worldwide have constituted such “fundamental environmental rights” (FERs). Constitutions provide a framework for social order. They also reflect a paradox. While constitutions are usually the product of a convulsive event of majoritarian democracy, most contain antimajoritarian features designed to protect so-called fundamental rights against the tyranny of the majority. Traditional fundamental rights, such as those found in the Bill of Rights to the Constitution of the United States, include protecting for its citizens free speech, religious exercise and voting rights. Does a fundamental, enforceable, individual right to a clean and healthy environment …
“Addition,” “Pollutant,” “Point Source”: Recent Case Developments Affecting The Scope Of Activities Covered By The Cwa, James R. May
“Addition,” “Pollutant,” “Point Source”: Recent Case Developments Affecting The Scope Of Activities Covered By The Cwa, James R. May
James R. May
This article examines recent developments in the interpretation of the words “addition,” “pollutant,” and “point source,” as used in the Clean Water Act. These words have been the subject of much controversy and many interpretations as the CWA leaves them undefined. The Supreme Court has concluded most notably that the transfer of polluted water within the same body of water does not constitute “addition,” however the transfer of pollutants from one body of water into another is addition. Similarly, much controversy has surrounded the possibility of pesticides, lead shot and erosion as additions. Most recently courts have found that pesticides …
The Aftermath Of Tmdl Litigation: Consent Decrees And Settlement Agreements, James R. May
The Aftermath Of Tmdl Litigation: Consent Decrees And Settlement Agreements, James R. May
James R. May
The Clean Water Act allows citizens to sue the EPA to “perform any act or duty…which is not discretionary,” and citizen suits have been influential in holding EPA responsible to the ideals of the CWA. This article describes the outcomes of three complex federal consent decrees to clean up waters and protect species in Pennsylvania, Delaware and Virginia through 2011.
Discharges From Historic Mining Properties: Asserting And Defending Citizen Suits Under The Clean Water Act, James R. May
Discharges From Historic Mining Properties: Asserting And Defending Citizen Suits Under The Clean Water Act, James R. May
James R. May
This chapter discusses available causes of action for and defenses to citizen suits under the Clean Water Act to address mining activities. Section 23.02 examines causes of action available to citizens under the CWA to address mining operations. In particular, it surveys citizen suits aimed at unpermitted mining discharges and against EPA for failing to perform mandatory duties that may impact mining operations. Section 23.03 then reviews some common defenses to CWA citizen suits in the context of mining.
The Road To Perdition: The Demise Of Tmdl Litigation, James R. May
The Road To Perdition: The Demise Of Tmdl Litigation, James R. May
James R. May
Citizens have filed more than two dozen suits and sent nearly four dozen notices of intent to sue EPA to implement the Clean Water Act's once vaunted "total maximum daily load" (TMDL) program. 33 U.S.C. §1313(d). The results are striking. Since 1997, states and EPA have identified nearly 20,000 waters previously thought to comply with water quality standards that do not. Since 2000, EPA has established or approved nearly 8,000 plans that aim to make these dirty waters fishable and swimmable. EPA is under court order to move the TMDL program along in more than 20 states. TMDL litigation, particularly …
Where The Water Hits The Road: Recent Developments In Clean Water Act Litigation, James R. May
Where The Water Hits The Road: Recent Developments In Clean Water Act Litigation, James R. May
James R. May
This article discusses reports recent developments involving particularly interesting juridical and administrative pronouncements in the areas of Clean Water Act jurisdiction, including key definitional terms "navigable waters," "addition," "pollutant," and "point source." It discusses how developments concerning permits, standards, TMDLs, citizen suits, and enforcement policies are shaping water pollution regulation in the United States.
Now More Than Ever: Trends In Environmental Citizen Suits At 30, James R. May
Now More Than Ever: Trends In Environmental Citizen Suits At 30, James R. May
James R. May
This article surveys and analyses trends in the astonishing arena of environmental citizen suits. Environmental citizen suits matter. Borne in a fulcrum of necessity due to inadequate resources and resolve, and borrowing a bit from common law qui tam without the bounty, Congress has experimented by providing citizens the remarkable authority to file federal lawsuits as “private attorneys general” to enforce many of the nation's environmental laws. And enforce they do. Despite ever more cascading burdens respecting notice, jurisdiction, preclusion, actions against EPA and third parties, remedies, SEPs and attorney fees, there are more reported environmental citizen suits than ever. …
Now More Than Ever: Environmental Citizen Suit Trends, James R. May
Now More Than Ever: Environmental Citizen Suit Trends, James R. May
James R. May
This article serves as a companion reader to “Environmental Citizen Suits at Thirtysomething: A Celebration and Summit,” Part One examines trends in environmental citizen suits post-Laidlaw. Part Two describes why citizen suits are needed now more than ever. It concludes that jurisprudential and statistical trends show both that there are more, and why more are needed still, environmental citizen suits than ever. Current national security prerogatives have not made for it easy for agencies to perform duties Congress has declared mandatory, and for courts to compel action. These trends are unlikely to change course anytime soon. Hence, the clarion call …
Environmental Citizen Suits At Thirtysomething: A Celebration And Summit, James R. May, Bruce J. Terris, Zygmunt J. Plater, Ann Powers, Michael D. Axline, David Bookbinder, Peter Lehner, Robert F. Kennedy
Environmental Citizen Suits At Thirtysomething: A Celebration And Summit, James R. May, Bruce J. Terris, Zygmunt J. Plater, Ann Powers, Michael D. Axline, David Bookbinder, Peter Lehner, Robert F. Kennedy
James R. May
This compilation article provides a rare behind the scenes glimpse into landmark environmental cases from those who litigated them, including Robert F. Kennedy, Jr., Bruce Terris, Professor Zygmunt Plater, Professor Ann Powers, Mike Axline, David Bookbinder, and Peter Lehner. In 1970, Congress gave citizens the remarkable authority to file federal lawsuits as “private attorneys general” to enforce the Clean Air Act (CAA). Congress intended citizen suits to fill the vast void left by inadequate enforcement by federal and state regulators, and to ensure compliance and deter illegal activity. The approach stuck. Now more than one dozen federal environmental statutes, numerous …
The Real Acid Test Of Title Iv Of The Clean Air Act Amendments Of 1990: External Cost Justifications Not Related To Acid Deposition Control, James R. May
James R. May
One of the principal objectives of the Clean Air Act Amendments Act of 1990, contained in Title IV, is to control acid deposition by reducing the air emissions of sulfur dioxides (SO2) and nitrogen oxides (NOx) released by many fossil fuel-fired steam-electric generating utility units. A report recently issued by the National Acid Precipitation Assessment Program (NAPAP), called the Integrated Assessment (NAPAP IA), casts formidable doubts upon Title IV's efficacy by suggesting that the relationship between Title IV and the mitigation of the adverse effects of acid deposition in environmentally sensitive areas is too attenuated to warrant the nationally pervasive …
Fashioning Procedural And Substantive Due Process Arguments In Toxic And Other Tort Actions Involving Punitive Damages After Pacific Mutual Life Insurance Co. V. Haslip, James R. May
James R. May
This article predicted that one of the most important issues in future tort litigation would be the role of the Due Process Clause of the Fourteenth Amendment in constraining the imposition of punitive damages by state court juries. In Pacific Mutual Life Insurance Co. v. Haslip, the Supreme Court found that the Due Process Clause of the Fourteenth Amendment limits, but does not prohibit, the imposition of punitive damages. The article argues that procedural due process would be protected by giving the jury adequate guidance on the nature and purpose of punitive damages, by using post-verdict judicial review to assure …