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- Duke Environmental Law & Policy Forum (2)
- St. Mary's Law Journal (2)
- Washington and Lee Law Review (2)
- Donald J. Kochan (1)
- Maine Law Review (1)
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- Mark P Nevitt (1)
- Pace Environmental Law Review (1)
- Pepperdine Law Review (1)
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- The Future of Natural Resources Law and Policy (Summer Conference, June 6-8) (1)
- William & Mary Environmental Law and Policy Review (1)
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Articles 1 - 18 of 18
Full-Text Articles in Law
Reading Between The Lines Of The Ira + Iija Power Gaps, Steven Ferrey
Reading Between The Lines Of The Ira + Iija Power Gaps, Steven Ferrey
Pace Environmental Law Review
Two major pieces of legislation enacted during the Biden Administration – the 2021 Infrastructure Investment and Jobs Act (IIJA) and the 2022 Inflation Reduction Act (IRA) – devote hundreds of billions of dollars over the next decade to rapidly increase electrification throughout the United States. While this legislation provides substantial investment in infrastructure, it also demands action from different legal regulators. Renewable energy occupies a much larger land footprint than traditional electric power production. And land-use under the Tenth Amendment is within local and state, rather than federal, jurisdiction. To date, U.S. local land use regulation frustrates such national legislation. …
A State Within A State: Re-Examining The Federal Lands Question And Its Effect On State Sovereignty, David Wilde
A State Within A State: Re-Examining The Federal Lands Question And Its Effect On State Sovereignty, David Wilde
William & Mary Environmental Law and Policy Review
Though the path of the public lands debate is well-trodden, this Note will seek to answer the question in novel ways. First, it uses the Corpus of Founding Era American English to perform an objective linguistic analysis of the phrase “dispose of” in the Property Clause. Through this analysis, it appears that an ordinary person at the time the Constitution was adopted would most likely have read the phrase “dispose of” in the Property Clause to mean sell, give away, bestow, or put into another’s hand or power.
Next, this Note investigates the historical and philosophical understandings of state sovereignty …
League Of Conservation Voters V. Trump, Adam W. Johnson Mr.
League Of Conservation Voters V. Trump, Adam W. Johnson Mr.
Public Land & Resources Law Review
A consortium of environmental groups brought suit challenging an executive order opening millions of acres of continental shelf lands to oil and gas leasing. The Court held that the President’s actions exceeded his statutory authority and intruded on Congress’s power under the Property Clause, violating the separation of powers doctrine.
Strategic Institutional Positioning: How We Have Come To Generate Environmental Law Without Congress, Donald J. Kochan
Strategic Institutional Positioning: How We Have Come To Generate Environmental Law Without Congress, Donald J. Kochan
Texas A&M Law Review
The administrative state has emerged as a pervasive machine that has become the dominate generator of legal rules—despite the fact that the U.S. Constitution commits the legislative power to Congress alone. When examining legislation authorizing administrative agencies to promulgate rules, we are often left asking whether Congress “dele- gates” away its lawmaking authority by giving agencies too much power and discretion to decide what rules should be promulgated and to determine how rich to make their content. If the agencies get broad authority, it is not too hard to understand why they would fulsomely embrace the grant to its fullest. …
The Statutory Separation Of Powers, Sharon B. Jacobs
The Statutory Separation Of Powers, Sharon B. Jacobs
Publications
Separation of powers forms the backbone of our constitutional democracy. But it also operates as an underappreciated structural principle in subconstitutional domains. This Article argues that Congress constructs statutory schemes of separation, checks, and balances through its delegations to administrative agencies. Like its constitutional counterpart, the “statutory separation of powers” seeks to prevent the dominance of factions and ensure policy stability. But separating and balancing statutory authority is a delicate business: the optimal balance is difficult to calibrate ex ante, the balance is unstable, and there are risks that executive agencies in particular might seek expansion of their authority vis-à-vis …
Strategic Institutional Positioning: How We Have Come To Generate Environmental Law Without Congress, Donald J. Kochan
Strategic Institutional Positioning: How We Have Come To Generate Environmental Law Without Congress, Donald J. Kochan
Donald J. Kochan
A "Delicate Balance": How Agency Nonacquiescence And The Epa's Water Transfer Rule Dilute The Clean Water Act After Catskill Mountains Chapter Of Trout Unlimited, Inc. V. City Of New York, Kevin J. Haskins
Maine Law Review
Congress enacted the Clean Water Act (CWA) in 1972 with the express objective of restoring and maintaining the health of the nation’s waters. To achieve this objective, Congress declared that discharges of pollutants into the nation’s waters are prohibited unless they comply with permit requirements. The CWA’s primary vehicle for regulating discharge permits is the National Pollutant Discharge Elimination System, or NPDES. The CWA defines the phrase “discharge of a pollutant” as the “addition of any pollutant to navigable waters from any point source.” Although the CWA further defines the terms “pollutant,” “navigable waters,” and “point source,” it fails to …
The Commander In Chief's Authority To Combat Climate Change, Mark P. Nevitt
The Commander In Chief's Authority To Combat Climate Change, Mark P. Nevitt
Mark P Nevitt
Climate change is the world’s greatest environmental threat. And it is increasingly understood as a threat to domestic and international peace and security. In recognition of this threat, the President has taken the initiative to prepare for climate change’s impact – in some cases drawing sharp objections from Congress. While both the President and Congress have certain constitutional authorities to address the national security threat posed by climate change, the precise contours of their overlapping powers are unclear. As Commander in Chief, the President has the constitutional authority to repel sudden attacks and take care that the laws are faithfully …
The Confrontation Of The Legislative And Executive Branches: An Examination Of The Constitutional Balance Of Powers And The Role Of The Attorney General, Robert E. Palmer
The Confrontation Of The Legislative And Executive Branches: An Examination Of The Constitutional Balance Of Powers And The Role Of The Attorney General, Robert E. Palmer
Pepperdine Law Review
The United States Constitution created an internally dependent tripartite governing scheme which relied upon a carefully drafted system of checks and balances as a means of self-regulation. Recent years have seen increased conflicts between the separate branches, the most recent of which is the occasion for this article. The article traces the rise and fall of the power exercised by the various branches and then focuses on the recent confrontation between Congress and the executive branch concerning the actions of the Environmental Protection Agency and the subsequent resignation of Anne McGill Burford. Of particular interest to this inquiry is the …
The Power To End War: The Extent And Limits Of Congressional Power., Adam Heder
The Power To End War: The Extent And Limits Of Congressional Power., Adam Heder
St. Mary's Law Journal
Congress has several options in limiting the execution of war, however, Congress has no implied constitutional authority to terminate a war. Congress may limit the scope at the outset of the war, dissolve the army, or use its appropriation power. Congress may also impeach the President. Domestic statutes, the Court’s strong protection of essential liberties, and the democratic process further check the President’s power. Short of these, however, neither the Constitution nor subsequent case law gives Congress any definitive power to end or effectively limit the President’s ability to conduct a war. Congress gets its “bite at the apple” at …
Environmental Standing: Who Determines The Value Of Other Life?, Francisco Benzoni
Environmental Standing: Who Determines The Value Of Other Life?, Francisco Benzoni
Duke Environmental Law & Policy Forum
No abstract provided.
Law Casebook Description And Table Of Contents: Constitutional Environmental And Natural Resources Law [Outline], Jim May, Robin Craig
Law Casebook Description And Table Of Contents: Constitutional Environmental And Natural Resources Law [Outline], Jim May, Robin Craig
The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)
6 pages.
"James May, Widener University School of Law" -- Agenda
Facing A Hobson's Choice? The Constitutionality Of The Epa's Administrative Compliance Order Enforcement Scheme Under The Clean Air Act, Christopher M. Wynn
Facing A Hobson's Choice? The Constitutionality Of The Epa's Administrative Compliance Order Enforcement Scheme Under The Clean Air Act, Christopher M. Wynn
Washington and Lee Law Review
No abstract provided.
Justice Scalia's Footprints On The Public Lands, Bret C. Birdsong
Justice Scalia's Footprints On The Public Lands, Bret C. Birdsong
Scholarly Works
This article explores Justice Scalia's views of judicial review of administrative action, as revealed in his writings on public land law, as both a scholar and a Supreme Court justice. It examines and explains why Professor Scalia favored judicial review of public land administration while Justice Scalia seems to abhor it. In a sweeping law review article published in 1970, Professor Scalia argued that the doctrine of sovereign immunity historically did not apply in public lands cases. On the Court he has penned two of the most significant decisions addressing judicial review of public lands administration, each of them imposing …
California Coastal Commission: Retroactivity Of A Judicial Ruling Of Unconstitutionality, Kristin Grenfell
California Coastal Commission: Retroactivity Of A Judicial Ruling Of Unconstitutionality, Kristin Grenfell
Duke Environmental Law & Policy Forum
No abstract provided.
The Fifth Amendment And The Retained Sovereignty Doctrine: A Study Of The Endangered Species Act And The Central Valley Project Improvement Act As Applied To Central Valley Project Water Service Contracts, Brian E. Gray
Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15)
12 pages.
Legislative Redistricting In 1991-1992: The Texas Bill Of Rights V. The Voting Rights Act., James C. Harrington, Judith Sanders-Castro
Legislative Redistricting In 1991-1992: The Texas Bill Of Rights V. The Voting Rights Act., James C. Harrington, Judith Sanders-Castro
St. Mary's Law Journal
Every decade, after the federal government has taken the census, Americans endure the process of redistricting Congress, state legislatures, county commissioner precincts, school boards, city councils, and a host of other elected bodies. Governed by the interplay of federal, state, and local law, the reapportionment process would seem to be a relatively easy task in theory. Yet, overriding forces unique to the political arena and the judiciary’s voice in redistricting questions undermine the implementation of such a simple system. Narrow interpretation of the Voting Rights Act of 1965 by the United State Supreme Court and lower federal courts further intensify …
Appointments With Disaster: The Unconstitutionality Of Binational Arbitral Review Under The United States-Canada Free Trade Agreement, Jim C. Chen
Washington and Lee Law Review
No abstract provided.