Environmental Law Commons^™

Business, The Environment, And The Roberts Court: A Preliminary Assessment, Jonathan H. Adler

Faculty Publications

The Roberts Court has developed a reputation for being a "pro-business" court. This article, prepared for the 2009 Santa Clara Law Review symposium on "Big Business and the Roberts Court," seeks to offer a preliminary assessment of this claim with reference to the Roberts Court's decisions in environmental cases. Reviewing the environmental law decisions of the Roberts Court to date reveals no evidence of a "pro-business" bias. This does not disprove the claim that the Roberts Court is pro-business, but it may suggest the need to refine conventional descriptions of the Roberts Court. The lack of a pro-business orientation in …

Book Review - Climate Change: A Guide To Carbon Law And Practice, Rebekah K. Maxwell

Faculty Publications

No abstract provided.

Notes From A Climate Change Pressure-Cooker: Sub-Federal Attempts At Transformation Meet National Resistance In The Usa, Cinnamon P. Carlarne

Faculty Publications

No abstract provided.

Doing More Or Doing Less For The Environment: Shedding Light On Epa's "Stealth" Method Of Environmental Enforcement, Ronald H. Rosenberg

Faculty Publications

Since the 1970s, environmental protection goals have gone from general statements of political desire to highly articulated systems of environmental regulation implemented by federal, state, and local governments. Environmental statutes have been enacted giving administrative agencies such as the U.S. Environmental Protection Agency (EPA) the responsibility for translating broad policy goals into specific regulatory requirements. Through its enforcement program, EPA seeks to assure that these general goals are achieved by individual actors. This Article examines a recent trend in EPA's practices, increased reliance on internal agency methods of enforcement. The study analyzes EPA's administrative enforcement system with particular emphasis on …

The Practical Effects Of Delegation: Agencies And The Zoning Of Public Land And Seas, Josh Eagle

Faculty Publications

No abstract provided.

Introduction: Common Law Environmental Protection, Jonathan H. Adler, Andrew P. Morriss

Faculty Publications

Today there is widespread dissatisfaction with many aspects of federal environmental law. The apparent success of early environmental regulations notwithstanding, many analysts and academics have begun to reexamine the potential of common law causes of action to supplement, if not supplant, portions of the existing regulatory regime. Some environmental advocates have come to the conclusion that state-based tort law may be more protective than federal regulations. At the same time, private litigators and state attorneys general are reviving common law causes of action in an effort to augment existing regulatory controls.

Is the common law a viable means of addressing …

Hothouse Flowers: The Vices And Virtues Of Climate Federalism, Jonathan H. Adler

Faculty Publications

Although economic theory would predict that states would lag behind federal efforts to control environmentally harmful emissions, there has been far more action on climate change in state capitols than in Washington, D.C. Without federal action, states have stepped in to fill the policy void on climate change. State-level action on climate change is unlikely, in itself, to have much impact on atmospheric concentrations of greenhouse gases or projected rates of future warming. Nonetheless, the level of state activity is significant.

The aggressiveness of state climate policy initiatives, and potential conflict between federal and state regulatory measures, provides an opportunity …

Money Or Nothing: The Adverse Environmental Consequences Of Uncompensated Land Use Controls, Jonathan H. Adler

Faculty Publications

The conventional wisdom holds that requiring compensation for environmental land use controls would severely limit environmental protection efforts. There are increasing reasons to question this assumption. Both economic theory and recent empirical research--focused primarily on the Endangered Species Act but potentially applicable to other environmental regulations that create similar incentives--demonstrate that failing to compensate private landowners for the costs of regulation discourages voluntary conservation efforts and can encourage the destruction of environmental resources. The lack of a compensation requirement also means that land use regulation is "underpriced" as compared to other environmental protection measures for which government agencies must pay. …

Common Law Environmental Protection: Introduction, Jonathan H. Adler, Andrew P. Morriss

Faculty Publications

Today there is widespread dissatisfaction with many aspects of federal environmental law. The apparent success of early environmental regulations notwithstanding, many analysts and academics have begun to reexamine the potential of common law causes of action to supplement, if not supplant, portions of the existing regulatory regime. Yet whatever the failings of the environmental regulatory state, the common law has failings of its own, including the failure to protect many ecological resources in the period before the enactment of federal environmental law. This essay is the introduction to a paper-only symposium on Common Law Environmental Protection, forthcoming in the Case …

God, Gaia, The Taxpayer And The Lorax: Standing, Justiciability, And Separation Of Powers After Massachusetts And Hein, Jonathan H. Adler

Faculty Publications

The Supreme Court decided two important standing cases during the October 2006 term: Hein v. Freedom from Religion Foundation and Massachusetts v. EPA. The latter is important for what it did, the former for what it did not do. Whereas Hein hewed closely - perhaps too closely - to prior standing precendents, the Massachusetts decision substantially departed from existing precedent and established a new doctrine of special solicitude to state standing. Both decisions involved generalized grievances about federal government policies that affect citizens as a whole, but point in opposite directions. In many respects the opinions are in significant tension …

Ocean Zoning And Spatial Access Privileges: Rewriting The Tragedy Of The Regulated Ocean, Josh Eagle, James N. Sanchirico, Barton H. Thompson Jr.

Faculty Publications

No abstract provided.

Sepas, Climate Change, And Corporate Responsibility: The Contribution Of Local Government, Catherine J. Lacroix

Faculty Publications

Municipalities in the United States are increasingly active in the effort to reduce greenhouse gas emissions. Data suggest that the physical layout of communities and the buildings they contain make significant contributions to greenhouse gas emissions and thus to climate change. One useful tool for municipalities could be the Environmental Impact Statement (EIS), pioneered in the National Environmental Policy Act (NEPA) at the federal level and subsequently adopted as a policymaking guide in the State Environmental Policy Acts (SEPAs) of many states. A SEPA requires state governments - and, in six states, local governments as well - to consider the …

Hothouse Flowers: The Vices And Virtues Of Climate Federalism, Jonathan H. Adler

Faculty Publications

Federal law preempts state regulation of motor vehicle emissions. California alone is allowed to seek a waiver of such preemption, and unsuccessfully sought such a waiver for the state's regulations limiting greenhouse gas emissions from motor vehicles. The debate and pending litigation over California's effort to obtain a waiver of preemption has focused attention on the state role in climate change policy. This paper explores the role of state governments in developing climate change policy, with a particular focus on how federalism principles and practice should inform judgments about the division of authority between the state and federal governments. As …

Self-Policing In A Targeted Enforcement Regime, Sarah L. Stafford

Faculty Publications

This paper adds to the debate over whether self-policing can increase environmental protection by considering an issue that has been ignored in previous models—that self-policing may influence future enforcement. The model combines self-policing with targeted enforcement and allows for both deliberate and inadvertent violations. As expected, rewarding self-policers with more lenient future enforcement increases auditing, remediation, and disclosure of inadvertent violations. Self-policing can also serve as a complement to deliberate compliance and can thus further increase environmental performance. However, under reasonable conditions, self-policing can be a substitute for deliberate compliance and could therefore be detrimental to environmental protection.

Water Marketing As An Adaptive Response To The Threat Of Climate Change, Jonathan H. Adler

Faculty Publications

Whereas there has been substantial research on the potential effect of climate change upon water resources, there has been relatively little consideration of the role of institutional arrangements in mitigating (or exacerbating) the potential effects of warming-induced changes in water supplies. Climate change increases the urgency with which water managers and policymakers must address water supply concerns, moving toward water supply institutions and policies that are sufficiently flexible, adaptive, and robust to deal with the uncertain water future. As the LPCC has concluded, "changes in water management practices will have a very significant impact on how climate change affects the …

Reforming Our Wasteful Hazardous Waste Policy, Jonathan H. Adler

Faculty Publications

Federal hazardous waste regulation and cleanup programs suffer from poor prioritization, insufficient flexibility, high costs, and questionable benefits. Many of these problems are a result of excessive regulatory centralization. The federal government has assumed primary responsibility for hazardous waste policy, placing states in a secondary role, even though the environmental threats posed by hazardous waste are generally quite localized. Hazardous waste itself is not a form of pollution, but rather a “precursor to pollution.” It only becomes an environmental problem when mismanaged, and allowed to contaminate land or water. Properly managed, however, hazardous waste is not a particularly pressing environmental …

Warming Up To Climate Change Litigation, Jonathan H. Adler

Faculty Publications

There was never any doubt that Massachusetts v. Environmental Protection Agency (“Mass. v. EPA”) would be a closely watched and hotly contested case. The surprise in Mass. v. EPA is the facility and ease with which the Court dispatched opposing arguments and redefined prior precedents. Not content to widen doctrines on the margins, Justice Stevens’s majority opinion blazed a new path through the law of standing and unearthed newfound regulatory authority for the EPA.

Now that EPA has authority to regulate greenhouse gases, regulatory controls on motor vehicles (as well as on other sources of greenhouse gases, including …

Missing The Link: The Importance Of Keeping Ecosystems Intact And What The Endangered Species Act Suggests We Do About It, Kalyani Robbins

Faculty Publications

The Endangered Species Act was created in response to a rapid decline in species biodiversity. Although Congress chose direct protection of individual species as its tool, protecting ecosystems (a necessary component of biodiversity) was clearly one of the goals for which that tool was to be used. A species can be abundant in some areas and declining in others, such that protecting the entire species does not make sense. Congress dealt with this issue by amending the Endangered Species Act in 1978 to allow for protection of “distinct population segments,” thereby allowing the population in decline to be protected in …

A Window Into The Regulated Commons: The Takings Clause, Investment Security, And Sustainability, Josh Eagle

Faculty Publications

The holding of the U.S. Court of Appeals for the Federal Circuit in American Pelagic Fishing Co. v. United States points to the conclusion that the government will almost never be liable, under the Takings Clause, when fisheries regulations reduce the value of commercial fishing permits, vessels, or gear. From the perspective of natural resource economics, this is a healthy result. Economists suggest that solving commons problems requires that natural resources be under the complete control of a sole owner who makes self-interested decisions about resource use, and if the Fifth Amendment required the government owner to compensate fishermen when …

Warming Up To Climate Change Litigation, Jonathan H. Adler

Faculty Publications

The surprise in Massachusetts v. EPA was not that it was a close, hotly contested case. Rather, the surprise was the facility and ease with which the Court majority dispatched opposing arguments and redefined prior precedents. Not content to widen doctrines on the margins, Justice Stevens' majority opinion blazed a new path through the law of standing and unearthed newfound regulatory authority for the United States Environmental Protection Agency. Under the Court's new interpretation, the Clean Air Act ("CAA" or "the Act") provides EPA with roving authority, if not responsibility, to regulate any substance capable of causing or contributing to …

Massachusetts V. Epa Heats Up Climate Policy No Less Than Administrative Law: A Comment On Professors Watts And Wildermuth, Jonathan H. Adler

Faculty Publications

In their essay Breaking New Ground on Issues Other than Global Warming, Professors Kathryn A. Watts and Amy J. Wildermuth have presented a thoughtful preliminary analysis of the Supreme Court's handiwork in Massachusetts v. EPA. They are correct that the decision potentially paves new ground in administrative law, particularly with regard to state standing. The Court's approach to review of agency decisions to decline rulemaking petitions is also potentially significant, but perhaps less ground-breaking than they suggest. In the context of climate change policy their assessment of the Court's decision is too modest, however, for Massachusetts virtually ensures federal regulation …

When Is Two A Crowd? The Impact Of Federal Action On State Environmental Regulation, Jonathan H. Adler

Faculty Publications

Despite the extensive scholarly literature assessing the proper role of federalism in environmental law, there has been relatively little analysis of why states adopt given environmental policies. There is even less consideration of how federal regulatory choices influence state environmental policy, and how a change in federal policy could influence states' willingness to adopt more environmental protections of their own. This Article seeks to address this gap by describing some of the factors that are likely to influence state environmental policy decisions and delineating how federal environmental policies can affect state policy choices. Specifically, this Article seeks to further the …

Palazzolo, The Public Trust, And The Property Owner's Reasonable Expectations: Takings And The South Carolina Marsh Island Bridge Debate, Erin Ryan

Faculty Publications

No abstract provided.

Reckoning With Rapanos: Revisiting "Waters Of The United States" And The Limits Of Federal Wetland Regulation, Jonathan H. Adler

Faculty Publications

Rapanos v. United States is the latest episode in the serial effort to identify the precise meaning of "waters of the United States." Federal courts have struggled to define the scope of federal regulatory jurisdiction under the Clean Water Act ("CWA") since the law was adopted.

Although no single opinion in Rapanos commanded a majority of the Court, the Court delivered a discernible holding. Specifically, the Court held that CWA jurisdiction over private lands is limited...and reaffirmed that federal regulatory authority only extends to those wetlands that have a "significant nexus" to navigable waters of the United States. Nonetheless, the …

'Tis A Gift To Be Simple: A Model Reform Of The Federal Sentencing Guidelines, Frank O. Bowman Iii

Faculty Publications

This essay introducing the June 2006 edition of the Federal Sentencing Reporter (Vol. 18, No. 5) describes two important contributions to the movement for real reform of the federal sentencing system. First, Professor Bowman summarizes the recommendations of the Constitution Project Sentencing Initiative (CPSI) report on federal sentencing. The CPSI report, reproduced in this Issue, cautions against any over-hasty legislative response to the Supreme Court's decision in United States v. Booker, suggests some near-term improvements to the existing federal sentencing system, and then sets out a framework for a reformed and markedly simplified federal sentencing regime. Second, Professor Bowman describes …

Looking Beyond Environmental Law's Mid-Life Crisis, Linda A. Malone

Faculty Publications

No abstract provided.

Regional Ocean Governance: The Perils Of Multiple-Use Management And The Promise Of Agency Diversity, Josh Eagle

Faculty Publications

Two high-level committees - the U.S. Commission on Ocean Policy and the Pew Oceans Commission - have recently issued reports expressing grave concerns about the condition of America's oceans. In these reports, the commissions suggest that institutional flaws underlie current problems. Specifically, the commissions' views are that state and federal agencies with marine jurisdiction lack the mechanisms, and the incentives, to coordinate their management activities. Accordingly, both commissions recommend the creation of regional ocean governance bodies. Although the commissions' designs differ, their goal is the same: management that operates on a larger scale and incorporates more ocean interests. This article …

Justice Stevens, Judicial Power, And The Varieties Of Environmental Litigation, Kenneth A. Manaster

Faculty Publications

1970 was a big year for environmental law. The first of the major federal environmental statutes, the National Environmental Policy Act ("NEPA"), went into force. The first Earth Day was observed. The federal Clean Air Act underwent revolutionary changes, and the United States Environmental Protection Agency ("EPA") was created. Many states also passed ambitious environmental legislation and created new agencies.1970, as is often said, began the "Environmental Decade," when the basic blueprint was drawn for the building of modem environmental law.

The desire of environmental activists for ringing judicial pronouncements of environmental awareness and creative new theories and remedies for …

The Green Costs Of Kelo: Economic Development Takings And Environmental Protection, Jonathan H. Adler

Faculty Publications

This Article is the first academic paper to systematically consider the environmental impact of the Supreme Court's decision in Kelo v. City of New London and of economic development condemnations more generally. Kelo upheld economic development takings - condemnations that transfer property from one private owner to another solely on the ground that doing so might improve the local economy or increase tax revenue. The decision stands in sharp contrast to the Michigan Supreme Court's ruling in County of Wayne v. Hathcock, which forbade the use of eminent domain for economic development.

Part I briefly explains the rationales of the …

Conservation Cartels: How Competition Policy Conflicts With Environmental Protection, Jonathan H. Adler

Faculty Publications

The alleged purpose of antitrust law is to improve consumer welfare by proscribing actions and arrangements that reduce output and increase prices. Conservation seeks to improve human welfare by maximizing the long-term productive use of natural resources, a goal that often requires limiting consumption to sustainable levels. While conservation measures might increase prices in the short run, they enhance consumer welfare by increasing long-term production and ensuring the availability of valued resources over time. That is true whether the restrictions are imposed by a private conservation cartel or a government agency. Insofar as antitrust law fails to take this into …