Administrative Law Commons^™

Delta Constr. Co., Inc. V. Epa: Putting The Brakes On Challenges To Unfair Agency Regulation Of Greenhouse Gas Emissions And Fuel Economy In Light-Duty And Heavy-Duty Vehicles, Sabrina A. Peterman

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Legal Context For Construction Of Bristol Veterans' Home Universally-Accessible Fishing Pier, Jourdan Thompson

Sea Grant Law Fellow Publications

This study reviews the legal requirements governing design and construction of a proposed universally-accessible fishing pier located at the Rhode Island Veterans’ Home in Bristol, Rhode Island. The pier would provide veterans and other members of the public with accessible recreational fishing opportunities. However, federal, state, and local approvals will be required before the project can move forward. This study provides an overview of required permitting and approvals by the Coastal Resources Management Council (CRMC), Town of Bristol, and U.S. Army Corps of Engineers (USACE). In addition, it considers the role of the Rhode Island Department of Environmental Management (RIDEM) …

#Betterrules: The Appropriate Use Of Social Media In Rulemaking, Stephen M. Johnson

Florida State University Law Review

No abstract provided.

Case Law On American Indians: August 2015—August 2016, Thomas P. Schlosser

American Indian Law Journal

No abstract provided.

Consideration For Unols Treatment Of Orvs As Public Vessels, Mark Hartmann

Sea Grant Law Fellow Publications

This document reviews the legal standards providing differential treatment of “public vessel” under federal regulations, including regulatory definitions of that term. In addition, it reviews language in key international legal instruments that provide similar special treatment for selected vessels owned by governments. This document is a supplement to Status of the U.S. Academic Research Fleet as Public Vessels under U.S. and International Law, which discusses the application of these and other legal authorities relevant to a determination of whether U.S. academic research fleet vessels are public vessels. The authorities presented here are separated by issuing agency (for regulatory citations). International …

Yazzie V. Epa, Caitlin Buzzas

Public Land & Resources Law Review

No abstract provided.

Let’S Be Reasonable: Why Neither Nollan/Dolan Nor Penn Central Should Govern Generally-Applied Legislative Exactions After Koontz, Glen Hansen

Pace Environmental Law Review

This article explains why the Nollan/Dolan test should not apply to legislatively imposed exactions, provided that such exactions satisfy two key criteria: (1) the exaction is generally-applied; and (2) the exaction is applied based on a set legislative formula without any meaningful administrative discretion in that application. Legislative exactions that fail to meet those two criteria should be governed by the Nollan/Dolan standard of review in the same manner as the ad hoc adjudicative exaction in Koontz. Furthermore, legislative exactions that satisfy those two criteria also should not be governed by the factored analysis in Penn Central Transportation Co. v. …

Defenders Of Wildlife V. Zinke, Jacob R. Schwaller

Public Land & Resources Law Review

Wyoming was the final holdout of protections for wolves under the Endangered Species Act, and a recent decision by the United States Circuit for the District of Columbia has finally overturned those protections. After years of court battles, this decision marks the final adjudication removing federal protections, and places the management of the wolves in the Greater Yellowstone Area back in the hands of the states surrounding Yellowstone National Park. Complete deference to state regulatory systems may be a new trend in the adjudication of cases under the ESA, and this case could have significant impacts on future deference given …

Wetlands Jurisdictional Determinations Reviewable Under The Administrative Procedure Act In U.S. Army Corps Of Engineers V. Hawkes, Emily R. Paulus

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Front Matter

Michigan Journal of Environmental & Administrative Law

No abstract provided.

Catskill Mountains Chapter Of Trout Unlimited, Inc. V. United States Environmental Protection Agency, Benjamin W. Almy

Public Land & Resources Law Review

Trout Unlimited’s effort to overturn the EPA’s Water Transfers Rule was stifled by the Second Circuit. The court’s comprehensive Chevron analysis determined that while the NPDES Water Transfers Rule may be at odds with the Clean Water Act’s mission, it was based on a reasonable interpretation of the statute’s ambiguous language, and therefore it did not violate the Administrative Procedures Act.

Choosing Your Ground On The Endangered Species Act: How Do The Ninth, Tenth, And District Of Columbia Circuit Courts Of Appeal Evaluate Water Management Decisions Made By Federal Water Agencies?, Michael Kinsey

Pace Environmental Law Review

The purpose of this article is twofold. First, federal agencies are responsible for the development and implementation of ESA documents, and knowing what a court will look for and at when that document is challenged can help the agencies to develop a document that can better survive court review. Second, a plaintiff who challenges such a document can benefit from that same knowledge, by knowing which elements of the document to best challenge. The intent of this article is to provide practitioners, both agency and non-, with an introduction to that knowledge, to identify some of those difficulties, dangers, and …

Ohio Valley Environmental Coalition V. Fola Coal Company, Llc, Emily A. Slike

Public Land & Resources Law Review

Disregarding CWA regulations, WVDEP allowed for a state coal mining company, Fola, to discharge pollutants into the Stillhouse Branch without regard for water quality violations. Fola claimed that because it held a WV/NPDES permit, it was shielded from any liability so long as the company followed the permit’s provisions, even if its discharge violated CWA water quality standards.

Hawkes Co. V. United States Army Corps Of Engineers, Sarah M. Danno

Public Land & Resources Law Review

A peat mining company will not be required to obtain a permit under the Clean Water Act to discharge dredged and fill material into wetlands. The United States District Court for the District of Minnesota held that the United States Army Corps of Engineers fell short in its attempts to establish jurisdiction over the wetlands by twice failing to show a significant nexus existed between the wetlands and navigable waters. Further, the district court enjoined the Corps from asserting jurisdiction a third time because it would force the mining company through a “never ending loop” of administrative law.

The Long Shadow Of Judicial Review, Mark Seidenfeld

Scholarly Publications

No abstract provided.

Going In Cerclas: The Evolution Of Arranger Liability And The Not-So-Useful Useful Product Doctrine, Martha Clarke

Northwestern University Law Review

Since the Supreme Court decision Burlington Northern & Santa Fe Railway Co. v. United States, courts have wrestled with what it means to be an arranger under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). One aspect of arranger liability that has undergone radical change in the past decade is the useful product doctrine, which allows a party to escape arranger liability by proving it was selling a useful product rather than arranging for disposal.

Prior to Burlington Northern, courts applied the useful product doctrine restrictively, only allowing parties selling virgin products to escape liability and imposing …

Whose Standards Control? Maine V. Mccanhy And The Federal, State, And Tribal Battle Over Water Quality Regulation, Joseph Paul Mortelliti

Michigan Journal of Environmental & Administrative Law

This Note considers the longstanding clash between the United States government and state governments over the management of intrastate waters through the lens of Maine v. McCarthy, an ongoing federal lawsuit. McCarthy confronts whether the United States Environmental Protection Agency can require state water quality standards to specifically safeguard the health and cultural practices of Maine’s Indian tribes, particularly sustenance fishing. A panoply of legal and political factors gave rise to and shaped the course of the litigation, ranging from tribal sovereignty to agency discretion and political gamesmanship. After evaluating the litigants’ arguments and examining previous regulatory collisions between …

Great Basin Resource Watch V. Bureau Of Land Management, Jody D. Lowenstein

Public Land & Resources Law Review

In Great Basin Resource Watch v. Bureau of Land Management, the Ninth Circuit invalidated the BLM’s environmental review, finding that the agency based its approval of a mining project on unsupported reasoning, inaccurate information, and deficient analysis. In negating the action, the court held that the BLM failed to take the hard look required by the National Environmental Policy Act.

Flood And Erosion Control Structures (Climate Adaptation Academy Fact Sheet #4), Audrey Elzerman

Sea Grant Law Fellow Publications

No abstract provided.

Standing Rock Sioux Tribe V. U.S. Army Corps Of Engineers, Jody D. Lowenstein

Public Land & Resources Law Review

The Standing Rock Sioux’s effort to enjoin the U.S. Army Corps of Engineers’ permitting of an oil pipeline was stifled by the United States District Court of the District of Columbia. In denying the preliminary injunction, the court held that the Tribe failed to show that the Corps violated the National Historic Preservation Act, and that the Tribe’s belated effort to litigate was futile after failing to participate in the consultation process.

Alaska Oil & Gas Association V. Pritzker, Benjamin W. Almy

Public Land & Resources Law Review

In Alaska Oil & Gas Association v. Pritzker, the Ninth Circuit reversed the United States District Court for the District of Alaska’s decision to strike down the National Marine Fisheries Service’s (“NMFS”) listing of distinct population segments of the Pacific bearded seal. The court determined that the NMFS was in full compliance with the requirements of the Endangered Species Act and squarely rejected the district court’s demand for highly specific data pertaining to the projected effects of climate change on the bearded seal.

The Ambiguity Of Redesignation: What Is 'Applicable' Under The Clean Air Act?, Andrew Miller

Catholic University Journal of Law and Technology

No abstract provided.

Technological Innovation, Data Analytics, And Environmental Enforcement, David L. Markell, Robert L. Glicksman, Claire Monteleoni

Scholarly Publications

Technical innovation is ubiquitous in contemporary society and contributes to its extraordinarily dynamic character. Sometimes these innovations have significant effects on the environment or on human health. They may also stimulate efforts to develop second-order technologies to ameliorate those effects. The development of the automobile and its impact on life in the United States and throughout the world is an example. The story of modern environmental regulation more generally includes chapters filled with examples of similar efforts to respond to an enormous array of technological advances.

This Article uses a different lens to consider the role of technological innovation. In …

#Betterrules: The Appropriate Use Of Social Media In Rulemaking, Stephen M. Johnson

Articles

In December 2015, the Government Accountability Office (GAO) concluded that the Environmental Protection Agency’s (EPA’s) use of various social media tools in a rulemaking under the Clean Water Act violated prohibitions in federal appropriations laws against publicity, propaganda, and lobbying. Although academics previously explored whether the use of technology in rulemaking might violate the Administrative Procedures Act (APA), the Paperwork Reduction Act, or the Federal Advisory Committee Act, none predicted that one of the first firestorms surrounding the use of social media in rulemaking would arise out of federal appropriations laws. ...

As the Administrative Conference of the United States …

Blood Biofuels, Nadia B. Ahmad

Faculty Scholarship

No abstract provided.

A Stinging Effect: The Legal Implications Biting Into The Effects Of The Zika Virus, Keanu Bader Mr

Honors Undergraduate Theses

People are afraid of contagious diseases. The thought that disease can spread throughout an entire population tends to make people wary of their interactions with their surrounding environment. Hearing about, or even seeing pictures of mosquitoes can make people squeamish or even stimulate an itch. Throughout the ages, the reaction to contagious diseases has been to quarantine and isolate. From the bubonic plague to the 1918 “Spanish” flu, the protocol was to quarantine those infected and isolate the rest. It may be this practice that inspired such precautions be taken by the public. Often these precautions are not warrantless and …

Do Sagebrush Rebels Have A Colorable Claim? The Space Between Parochialism And Exclusion In Federal Lands Management, Ann M. Eisenberg

Faculty Publications

This Article asks whether the troubling nature of the Sagebrush Rebellion and similar movements (e.g., their violence, antienvironmentalism, and racist overtones) has made us overly dismissive of a kernel of truth in their complaints. Commentators often acknowledge that federal lands management may be “unfair” to local communities, but the ethical and legal characteristics of the unfairness concern remain under-explored. Although the Sagebrush Rebellion and federal lands communities are far from synonymous, substantial overlap between the complaints and demands of Sagebrush Rebels and the complaints and demands of many regional local (and state) governments suggests that to explore the one necessitates …

Pueblo Indian Water Rights: Charting The Unknown, Richard W. Hughes

Publications

This article examines the so-far-unsuccessful efforts to judicially define and quantify the water rights appurtenant to the core land holdings of the 19 New Mexico Pueblos, many of whose lands straddle the Rio Grande. It explains that the Tenth Circuit Court of Appeals has squarely held that Pueblo water rights are governed by federal, not state law, and are prior to those of any non-Indian appropriator, but also that the Tenth Circuit acknowledged that it could not say how those rights should be characterized. Part I of the article examines the course of the cases that have sought to achieve …

Agency Innovation In Vermont Yankee's White Space, Emily S. Bremer, Sharon B. Jacobs

Publications

The literature on “agency discretion” has, with a few notable exceptions, largely focused on substantive policy discretion, not procedural discretion. In this essay, we seek to refocus debate on the latter, which we argue is no less worthy of attention. We do so by defining the parameters of what we call Vermont Yankee’s “white space” — the scope of agency discretion to experiment with procedures within the boundaries established by law (and thus beyond the reach of the courts). Our goal is to begin a conversation about the dimensions of this procedural negative space, in which agencies are free …

Entrepreneurial Administration, Philip J. Weiser

Publications

A core failing of today’s administrative state and modern administrative law scholarship is the lack of imagination as to how agencies should operate. On the conventional telling, public agencies follow specific grants of regulatory authority, use the traditional tools of notice-and-comment rulemaking and adjudication, and are checked by judicial review. In reality, however, effective administration depends on entrepreneurial leadership that spearheads policy experimentation and trial-and-error problem-solving, including the development of regulatory programs that use non-traditional tools.

Entrepreneurial administration takes place both at public agencies and private entities, each of which can address regulatory challenges and earn regulatory authority as a …