Law Commons^™

Presidential Progress On Climate Change: Will The Courts Interfere With What Needs To Be Done To Save Our Planet?, Michael B. Gerrard

Faculty Scholarship

The Biden Administration is undertaking numerous actions to reduce greenhouse gas emissions and transition away from fossil fuels as part of the fight against climate change. Many of these actions are likely to be challenged in court. This paper describes the various legal theories that are likely to be used in these challenges, assesses their prospects of success given the current composition of the Supreme Court, and suggests ways to minimize the risks.

The Supreme Court And The Ppl Montana Case: Examining The Relationship Between Navigability And State Ownership Of Submerged Lands, Richard C. Ausness

Law Faculty Scholarly Articles

The United States Supreme Court held in PPL Montana v. Montana held that the State of Montana did not own the beds beneath certain rivers and, therefore, rejected the State's claim that the power company owed it millions of dollars in "back rent" for the use of the riverbeds as sites for ten of its hydroelectric power plants. The Montana Supreme Court, which had ruled in favor of the State, declared that even if portions of a river were not navigable for commercial purposes because of physical conditions, the entire river would be treated as navigable if commercial traffic could …

Textualism’S Limits On The Administrative State: Of Isolated Waters, Barking Dogs, And Chevron, Michael P. Healy

Law Faculty Scholarly Articles

In Solid Waste Agency of Northern Cook County (SWANCC) v. U.S. Army Corps of Engineers, the U.S. Supreme Court recently held that the U.S. Army Corps of Engineers (the Corps) does not have authority under the Clean Water Act (the Act or the CWA) to regulate the filling of “other waters.” This decision demonstrates a major shift in the Court's approach to statutory interpretation, particularly in the context of reviewing an agency’s understanding of a statute. The significance of the case is best gauged by contrasting it with United States v. Riverside Bayview Homes, Inc. There, the Court, acting …

Standing In Environmental Citizen Suits: Laidlaw’S Clarification Of The Injury-In-Fact And Redressability Requirements, Michael P. Healy

Law Faculty Scholarly Articles

In its first week of business during the new millennium, the U.S. Supreme Court decided Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., and provided important clarifications about the law of standing in environmental citizen suits. Specifically, the Court rejected the narrow view of environmental injury-in-fact advocated by Justice Scalia and instead adhered to the broader view of injury-in-fact established in a nonenvironmental context by the Court's decision in Federal Elections Commission v. Akins. As importantly, the Court also addressed the redressability requirement of Article III standing in Laidlaw. Here too, the Court did …

The Attraction And Limits Of Textualism: The Supreme Court Decision In Pud No. 1 Of Jefferson County V. Washington Dep't Of Ecology, Michael P. Healy

Law Faculty Scholarly Articles

During its 1993 Term, the Supreme Court had the opportunity to consider the interaction between two federal statutory schemes: the Federal Power Act (FPA), which provides that the Federal Energy Regulatory Commission (FERC) has the authority to regulate and license hydropower projects, and the Clean Water Act (CWA), which provides that states have the authority to adopt water quality standards and that federal law will impose and enforce those standards in regulating emissions into, and the quality of, waters of the United States. The tension created by these two statutes lies not only between federal agencies, but more importantly, between …

Regulatory Takings And Wetland Protection In The Post-Lucas Era, Richard C. Ausness

Law Faculty Scholarly Articles

In June 1992, the United States Supreme Court decided Lucas v. South Carolina Coastal Council. The case involved a claim for compensation against the State of South Carolina by a landowner who was prohibited from placing structures on two of his beachfront lots. The Court declared that the landowners must be compensated when government regulations deprive them of all economically beneficial or productive uses of their property unless the proscribed uses were not permitted as part of their original titles.

Although some legal commentators have praised the Lucas decision, others have strongly condemned it. A common criticism of Lucas …

The Preemption Of State Hazardous And Solid Waste Regulations: The Dormant Commerce Clause Awakens Once More, Michael P. Healy

Law Faculty Scholarly Articles

Last term, for the first time since its watershed decision in Philadelphia v. New Jersey, the Supreme Court considered the extent to which the Commerce Clause of the United States Constitution constrains a state's ability to regulate the disposal of hazardous and solid waste within its borders. In two cases, Chemical Waste Management, Inc. v. Hunt and Fort Gratiot Sanitary Landfill, Inc. v. Michigan Department of Natural Resources, the Supreme Court acted to limit substantially states’ ability to respond independently to the crisis of solid and hazardous waste disposal. The Article describes the harmful impact of the Court's …

Special Report On Endangered Species And New Life Forms: Conversation With A Cockroach, George J. Annas

Faculty Scholarship

On June 15, 1978, the United States Supreme Court ruled that the Endangered Species Act of 1973 required the enjoining of the operation of a virtually completed dam, the Tellico Dam in Tennessee, because of a determination by the Secretary of the Interior that its operation would eradicate the snail darter, an endangered species.