Environmental Law Commons^™

Can Administrative Regulations Interpret Rights Enforceable Under Section 1983?: Why Chevron Deference Survives Sandoval And Gonzaga, Bradford Mank

Faculty Articles and Other Publications

There is a split in the circuits regarding whether and when agency regulations may establish rights enforceable through 42 U.S.C. Section 1983. In 1987, in Wright v. City of Roanoke, the Supreme Court held that a statute and regulations interpreting the statute could create enforceable rights under Section 1983, but left unclear to what extent it had relied on the regulations alone to reach this conclusion. The District of Columbia Circuit and Sixth Circuit have held that at least some valid federal regulations may create rights enforceable through Section 1983. Concluding that only Congress by enacting a statute may create …

The Blackout Of 2003: What Is Next?, Joel B. Eisen

University of Richmond Law Review

No abstract provided.

Order Without Social Norms: How Personal Norm Activation Can Protect The Environment, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

This Article tackles a leading problem confronting norms theorists and regulators: how can the law induce changes in behavior when the material costs to the individual outweigh the benefits and there is no close-knit community to impose sanctions for failure to change? Because private individuals and households are now surprisingly large contributors to environmental problems ranging from toxic pollution to climate change, environmental policy makers face compelling examples of these negative-payoff, loose-knit group situations. This Article suggests that internalized personal norms, rather than social norms, are the most important initial target of opportunity for influencing this kind of behavior.

Drawing …

Assessing The Options For Designing A Mandatory U.S. Greenhouse Gas Reduction Program, Robert R. Nordhaus, Kyle W. Danish

ExpressO

The United States faces growing pressure – both from domestic and international sources – to adopt a mandatory greenhouse gas reduction program to address the risk of global climate change. If policy-makers decide to establish such a program, they could end up creating an environmental regulatory regime of potentially unprecedented scope and impacts. A domestic greenhouse gas program could break ground in other ways too. Many policy-makers are considering innovative market-based approaches to regulation, including a multi-billion dollar economy-wide “cap-and-trade” program. In this paper, we: (1) set forth criteria for evaluating program options; (2) analyze the leading design options and …

Securing Truth For Power: Informational Strategy And Regulatory Policy Making, Cary Coglianese

ExpressO

No abstract provided.

From Smokestack To Suv: The Individual As Regulated Entity In The New Era Of Environmental Law, Michael P. Vandenbergh

Vanderbilt Law School Faculty Publications

A debate between advocates of command and control regulation and advocates of economic incentives has dominated environmental legal scholarship over the last three decades. Both sides in the debate implicitly embrace the premise that regulatory measures should be directed almost exclusively at large industrial polluters. This Article asserts that for many pollutants the premise is no longer supportable, and that much of the focus of regulation in the future should turn to individuals and households. Examining a wide range of empirical data, the Article presents the first profile of individual behavior as a source of pollution. The profile demonstrates that …

Distributing The Costs Of Environmental, Health, And Safety Protection: The Feasibility Principle, Cost-Benefit Analysis, And Regulatory Reform, David M. Driesen

College of Law - Faculty Scholarship

No abstract provided.

Wto And Gmos: Analyzing The European Community's Recent Regulations Covering The Labeling Of Genetically Modified Organisms, Brian Schwartz

Michigan Journal of International Law

This Note explores the compatibility of the EC's GMO regulations within the framework of the Agreement on the Application of Sanitary and Phytosanitary Measures ("SPS Agreement"), the Agreement on Technical Barriers to Trade ("TBT Agreement"), and the General Agreement on Tariffs and Trade 1994 ("GATT 1994" or "GAT"), all integral parts of the WTO Agreement. Part II presents arguments for or against the use of GM-products. Part III explores the concept of ecolabeling by analyzing the general goals of such programs, including the economic theory behind green consumerism and the characteristics necessary for effective schemes. Part IV describes the core …

School Voucher Programs: Has The Supreme Court Pulled Up The Gangplank To Establishment Clause Challenges., Cecil C. Kuhne Iii

St. Mary's Law Journal

The Establishment Clause is not violated when a program is neutral toward religion and provides assistance directly to a broad class of citizens, who in turn voluntarily direct the aid to religious schools. A program containing these features permits government aid to reach religious institutions only thru the deliberate choices of individuals. Any incidental advancement or endorsement of religion is attributable to the individual recipient—not the government, which simply acts as a disburser. In Zelman v. Simmons-Harris, the Supreme Court reiterated this rationale from a twenty-year line of cases. Zelman is a death knell for Establishment Clause challenges to carefully …

Information Based Regulation And International Trade In Genetically Modified Agricultural Products: An Evaluation Of The Cartagena Protocol On Biosafety, Michael P. Healy

Law Faculty Scholarly Articles

This Article considers the regulation of international trade in genetically modified agricultural products. Specifically, it addresses both products released into the environment as seeds and products intended for consumption as food. The first part of the Article describes the significance of genetically modified organisms (GMOs) in modem agriculture, especially agriculture in the United States. This discussion summarizes the risks and potential benefits associated with the use of agricultural GMOs, especially the risks and benefits related to biodiversity. The Article then briefly describes the approaches to the regulation of these products adopted in the

Cartagena Protocol to the Convention on Biological …

Cost-Benefit Default Principles, Cass R. Sunstein

Michigan Law Review

Courts should be reluctant to apply the literal terms of a statute to mandate pointless expenditures of effort. . .. Unless Congress has been extraordinarily rigid, there is likely a basis for an implication of de minimis authority to provide exemption when the burdens of regulation yield a gain of trivial or no value. It seems bizarre that a statute intended to improve human health would .. . lock the agency into looking at only one half of a substance's health effects in determining the maximum level for that substance. [I]t is only where there is "clear congressional intent to …

Integrating Ecosystem Services Into Environmental Law: A Case Study Of Wetlands Mitigation Banking, J.B. Ruhl, R. Juge Gregg

Vanderbilt Law School Faculty Publications

This article argues that Section 404 of the Clean Water Act provides ample statutory authority for the Corps of Engineers and EPA to integrate ecosystem service values and impacts into wetlands impact and mitigation decisions.

Regulation Fd: Sec Reestablishes Enforcement Capabilities Over Selective Disclosure., John P. Jennings

St. Mary's Law Journal

This Recent Development focuses on the potential effects Regulation Fair Disclosure (FD) will have on the participants in the American capital market and on the stock markets themselves. Congress and the Securities Exchange Commission (SEC) seek to achieve confidence in the integrity and fairness of the American stock market and protection of investors from fraud by promoting equal opportunities for investors. In order to maintain a competitive edge, vis-à-vis its foreign counterparts, the United States must continually refine its financial systems to maximize fairness and integrity. This Recent Development focuses on selective disclosure—allowing a limited segment of investors access to …

Farms, Their Environmental Harms, And Environmental Laws, J.B. Ruhl

Vanderbilt Law School Faculty Publications

Farms are one of the last uncharted frontiers of environmental regulation in the United States. Despite the substantial environmental harms they cause-habitat loss and degradation, soil erosion and sedimentation, water resources depletion, soil and water salinization, agrochemical releases, animal wastes, nonpoint source water pollution, and air pollution-environmental law has given them a virtual license to do so. When combined, the active and passive safe harbors farms enjoy in most environmental laws amount to an anti-law that finds no rational basis given the magnitude of harms farms cause. This paper comprehensively documents the environmental harms farms cause and the safe harbors …

Collaborative Approaches To Conservation: A Critical Look, Larry Macdonnell

Strategies in Western Water Law and Policy: Courts, Coercion and Collaboration (Summer Conference, June 8-11)

7 pages.

Keeping Clean Waters Clean: Making The Clean Water Act's Antidegradation Policy Work, John A. Chilson

University of Michigan Journal of Law Reform

This Note stresses the importance of making the Clean Water Act's antidegradation policy work in order to avoid a system of national waters of equally mediocre quality. The Nation's highest quality and most important waters are not receiving appropriate protection under the Act because the antidegradation policy contains vague definitions, the states fail to review water quality standards every three years and to entertain citizens' petitions, and the Environmental Protection Agency has not taken an active role in ensuring compliance with federal standards. This Note examines the schemes of the Great Lakes States and Florida and hypothesizes that similar provisions …

The Environmental Protection Agency's Project Xl And Other Regulatory Reform Initiatives: The Need For Legislative Authorization, Bradford Mank

Faculty Articles and Other Publications

The focus of this Article is twofold. First, the Article will show that EPA's reform initiatives are severely hampered by a lack of legal authority, and proposes that Congress give EPA sufficient authority to enact needed reforms. Second, this Article will address concerns that reform will lead to inferior environmental protection and public participation. This Article proposes a number of statutory provisions to ensure that, once EPA has sufficient authority to pursue its reform agenda the agency will do so in a way that avoids a diminution of public health safeguards.

Environmental Audits: An Analysis Of The Dilemma And An Assessment Of Oklahoma's Response, Patrick Decker Sachse

Oklahoma Law Review

No abstract provided.

The Benefits And Costs Of Regulatory Reforms For Superfund, W. Kip Viscusi, James T. Hamilton

Vanderbilt Law School Faculty Publications

The current policy approach used in the Superfund program is a peculiar halfway house. EPA devotes substantial effort to identifying chemicals at a site and ascertaining their potential risks. It also assesses the costs of a range of remedies in considerable detail. However, many key elements are missing in the agency's analyses. There is no explicit consideration of the size of the population at risk. Risks to a single individual have the same weight as risks to a large exposed population. Actual and hypothetical exposures to chemicals receive equal weight so that risks to a person who, in the future, …

The Role Of Riparian Water Law In Protecting Biodiversity: An Indiana (Usa) Case Study, Robert L. Fischman

Articles by Maurer Faculty

This article discusses how the rules affecting the use of surface water ground water in a typical riparian state, Indiana, can promote the conservation biological diversity. The article first surveys the basic water laws that apply to surface water, diffused surface water, underground streams, and ground water. The rules governing the uses of these waters originate in common law property doctrines and substantially clarified by state legislation. Next the article considers state administration of water. The article examines regulatory tools and administrative opportunities control uses of water in a manner that protects biodiversity. Programs requiring permits for construction in floodplains, …

Revitalizing Environmental Federalism, Daniel C. Esty

Michigan Law Review

Politicians from Speaker Newt Gingrich to President Bill Clinton, cheered on by academics such as Richard Revesz, are eagerly seeking to return authority over environmental regulation to the states. In the European Union, localist opponents of environmental decisionmaking in Brussels rally under the banner of "subsidiarity." And in debates over international trade liberalization, demands abound for the protection of "national sovereignty" in environmental regulation. All of these efforts presume that a decentralized approach to environmental policy will yield better results than more centralized programs. This presumption is misguided. While the character of some environmental concerns warrants a preference for local …

Future Directions In International Environmental Law: Precaution, Integration And Non-State Actors, James Cameron

Dalhousie Law Journal

In this, the Horace E. Read Memorial Lecture for 1995, James Cameron discusses three developments in international environmental law,-the principles of precaution and of integration and the roles of non-state actors. The precautionary principle calls for regulatory intervention to prevent environmental harm even though the risk of damage remains scientifically uncertain. A wide consensus exists in favour of a precautionary approach to environmental management and state practice is sufficient to assert the principle has attained the status of customary international law, but it remains controversial because it demands changes in practice. The principle of integration takes a holistic approach to …

Controlling The Environmental Consequences Of Power Development In The People's Republic Of China, Homer Sun

Michigan Journal of International Law

This Note proposes a strategy to mitigate the environmental degradation resulting from China's power development. Part I introduces China's power industry - its excessive dependence on coal, its antiquated and inefficient infrastructure, its pollutive effects, and its projected expansion. Part II appraises the ways in which China's environmental laws, macroeconomic controls, and foreign investment restrictions influence the growth of power development and its corresponding effect on the environment. Part III assesses the role that governments, development banks, and international organizations can play in curbing the environmental impact of Chinese power projects. Considering the problems associated with current Chinese and international …

The Supreme Court And The Endangered Species Act (Symposium: The Supreme Court And Local Government Law: 1994-95 Term), Leon D. Lazer

Scholarly Works

No abstract provided.

Sustainability: Myth And Reality, Kai Lee

Sustainable Use of the West's Water (Summer Conference, June 12-14)

23 pages (includes illustrations).

Contains references.

Risk Regulations And Its Hazards, Stephen F. Williams

Michigan Law Review

A Review of Breaking the Vicious Circle: Toward Effective Risk Regulation by Stephen Breyer

On The Topology Of Uniform Environmental Standards In A Federal System And Why It Matters (Symposium: Environmental Federalism), James E. Krier

Articles

Uniform standards are much favored among the makers of federal environmental policy in the United States, which is to say, among the members of Congress. By and large-judging at least from the legislation it has enacted-Congress expects the air and water eventually to meet the same minimum levels of quality in every state in the country, and expects each pollution source in any industrial category or subcategory to be controlled just as much as every other such source, notwithstanding the source's location or other peculiar characteristics. There are exceptions to these generalizations, but they are exceptions and not the rule.1 …

Multidisciplinary Perspectives On The Improvement Of International Environmental Law And Institutions, Linda C. Reif

Michigan Journal of International Law

Review of Environmental Change and International Law: New Challenges and Dimensions (Edith Brown Weiss ed.), Institutions for the Earth: Sources of Effective International Environmental Protection (Peter M. Haas, Robert O. Keohane, & Marc A. Levy eds.), and The Uncertain Promise of Law: Lessons from Bhopal. by Jamie Cassels

The End Of The World News (Symposium: Twenty-Five Years Of Environmental Regulation), James E. Krier

Articles

My title, but nothing else, owes to Anthony Burgess.' I like the ambiguity of Burgess's words. They could be a play on what an anchor says when she brings the night's news of the world to a close ("and that's the end of.. ."), or they could be the name of a doomsday periodical, or a headline announcing the bankruptcy of a tabloid, or, at the extreme, a reference to the end of the world. For my purposes, however, they signify the end of an era.

Marketable Pollution Allowances (Great Lakes Symposium), James E. Krier

Articles

In March 1993, the EPA auctioned off 150,010 sulfer dioxide emissions permits at the Chicago Board of Trade. The auction brought in $21.4 million and ushered in the Clean Air Act's market-based approach to sulfur dioxide control. Congress created these marketable pollution allowances (MPAs) under Title IV of the Clean Air Act Amendments of 19903 to regulate acid rain pollution. While most MPAs were bought by utilities, to be exchanged as a commodity according to need, some MPAs were removed from the market solely to prevent their use by polluters. The Cleveland-based National Healthy Air License Exchange bought one allowance …