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Abstract:
Chris Mooney's Republican War on Science argues that the political right, and in particular the Bush Administration, are guilty of rampant political science abuse, defined as any attempt to inappropriately undermine, alter, or otherwise interfere with the scientific process, or scientific conclusions, for political or ideological reasons. Mooney correctly identifies many example of such abuse by conservative organizations and Republican politicians, but some of his charges are overwrought, if not misleading. Overall the book has three central flaws. First, Mooney has a penchant for characterizing some legitimate science-related policy positions with which he disagrees as abuses of science. Second, he exhibits a blind spot to the misuse and politicization of science by those who espouse political agendas with which he agrees. Third and most important, Mooney pays little attention to the larger institutional context that generates political pressures on science. The politicization of science is a real problem, yet lacking any serious consideration of the broader institutional context in which such politicization occurs, Republican War ultimately fails in its diagnosis and prescriptions.

Science politicization, scientific policy, scientists, policymaking process, Bush Administration, political pressures on science, political science abuse, sound science, public science, private science

Abstract:
This essay surveys the upcoming 2005-06 term of the Supreme Court, a term that may be as notable for what it says about the future direction of the Supreme Court as it is for specific decisions in any particular cases. This does not mean the term lacks important cases. To the contrary, this coming year the Court will consider the constitutionality of the Solomon Amendment, address the application of the Religious Freedom Restoration Act to religious use of drugs, and determine whether the federal government can effectively preempt Oregon's decision to legalize doctor-assisted suicide. It will revisit contemporary federalism and abortion doctrines, clarify the scope of the Racketeer Influenced and Corrupt Organizations Act (RICO), and address important questions in antitrust and criminal procedure. In addition, the Court may consider one or more cases challenging the scope of executive authority to combat terrorism. Nonetheless, the most striking thing about the upcoming term is that we will see a change in the Court's composition for the first time in over a decade.

United States Supreme Court, Solomon Amendment, Religious Freedom Restoration Act, Doctor-Assisted Suicide, Abortion, Federalism, Racketeer Influenced and Corrupt Organizations Act (RICO), Antitrust, Criminal Procedure

Abstract:
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 Kelo and Hathcock decisions and shows why a Hathcock-like ban on economic development takings is highly unlikely to impede environmental regulation or the use of eminent domain for legitimate conservation purposes. This doctrinal point is buttressed by empirical evidence indicating that none of the nine states with judicial bans on economic development takings have ever used such a ban to strike down the use of eminent domain for environmental or conservation purposes. Part II shows that economic development takings actually threaten environmental harm. Allowing the use of eminent domain for economic development poses a particular threat to private conservation lands and open space. Because land owned by conservation nonprofits produces few economic benefits and does not contribute to tax revenue, it is likely to be targeted by developers and local governments that use eminent domain to advance their development interests. Economic development takings can also damage the environment by promoting environmentally harmful development, undermining property rights, and furthering dubious development plans that sap community wealth and reduce resources available for environmental protection. In many situations, economic development takings end up giving us the worst of both worlds: they cause environmental harm and reduce economic growth by transferring land to inefficient development projects.

Kelo, eminent domain, environmental law, economic development, sprawl, Hathcock

Abstract:
On June 22, 1969, just before noon, an oil slick and assorted debris under a railroad trestle on the Cuyahoga River caught fire. The fire attracted national media attention, and helped prompt the passage of federal environmental laws. A river on fire was a symbol of earth in need of repair, and federal regulation was the reparative tool of choice. Much of the Cuyahoga story is mythology, however, a fable with powerful symbolic force. The river did burn in 1969 - as it and other rivers had burned many times before - and today the Cuyahoga and many U.S. rivers are far less polluted. But so much else of what we "know" about the 1969 fire is simply not so. The conventional narratives, of a river abandoned by its local community, of water pollution at its zenith, of conventional legal doctrines impotent in the face of environmental harms, and of a beneficent federal government rushing in to save the day, is misleading in many respects. This paper revisits the context and history of the legendary Cuyahoga River fire to reveal a more complex story about the causes and consequences of various institutional choices in environmental law. The aim is to provide additional perspective to the questions of institutional choice which underlie environmental policy, and to suggest that the decision to reallocate primary authority over water quality to the federal government was neither inevitable nor an unmitigated blessing.

Abstract:
This article assesses the current and likely impact of the Supreme Court's federalism cases on federal environmental regulation. As a result of this assessment, the article seeks to make four points: (1) Thus far, the Supreme Court's federalism cases have had a limited impact on federal regulation, as federal courts have not used these cases as a basis for limiting the reach of federal regulatory authority. (2) Notwithstanding this limited impact, the underlying logic of the Supreme Court's cases does pose a challenge for federal regulation, particularly in the Commerce Clause context. (3) The thrust of the federalism cases makes it likely that the Supreme Court will revisit the constitutional limitations on the Spending Clause, and this could have a substantial impact on federal environmental regulation, as some federal environmental provisions exceed even the highly deferential Spending Clause standard outlined in South Dakota v. Dole. (4) Judicially enforced limitations on federal regulatory authority do not necessarily translate into limitations on environmental protection. The federal government will retain substantial - although not unlimited - authority to advance environmental protection. Where federal authority is constrained, state and local governments and non-governmental entities will retrain their ability to address many environmental concerns.

federalism, environmental protection

Abstract:
This article assesses the current and likely impact of the Supreme Court's federalism cases on federal environmental regulation. As a result of this assessment, the article seeks to make four points: 1) Thus far, the Supreme Court's federalism cases have had a limited impact on federal regulation, as federal courts have not used these cases as a basis for limiting the reach of federal regulatory authority. 2) Notwithstanding this limited impact, the underlying logic of the Supreme Court's cases does pose a challenge for federal regulation, particularly in the Commerce Clause context. 3) The thrust of the federalism cases makes it likely that the Supreme Court will revisit the constitutional limitations on the Spending Clause, and this could have a substantial impact on federal environmental regulation, as some federal environmental provisions exceed even the highly deferential Spending Clause standard outlined in South Dakota v. Dole. 4) Judicially enforced limitations on federal regulatory authority do not necessarily translate into limitations on environmental protection. The federal government will retain substantial - although not unlimited - authority to advance environmental protection. Where federal authority is constrained, state and local governments and non-governmental entities will retain their ability to address many environmental concerns.

Abstract:
Demographic changes and existing water use patterns have placed tremendous pressures upon water supplies, particularly in the West. Global climate change will exacerbate pressures on water resources. The gradual warming of the atmosphere is certain to change the distribution and availability of water supplies, with potentially severe consequences for freshwater supplies. While climate change will have a significant impact on water resources through changes in the timing and volume of precipitation, altered evaporation rates, and the like, the precise nature, magnitude, timing, and distribution of such climate-induced changes are unknown. This uncertainty complicates the task of water managers who are already faced with escalating demands. This article argues that climate change, and its projected effects on water use and supply, calls for a fundamental reexamination of water institutions. In particular, this article suggests that market-based institutions are well suited to address the additional pressures on water supplies due to climate change. Many aspects of water markets, including their flexibility, decentralized nature, and ability to create and harness economic incentives, make them particularly well suited to address the uncertain water forecast. A gradual shift toward water marketing and market pricing will improve the management of water supplies, ensure more efficient allocation of available water supplies and encourage cost-effective conservation measures.

Water marketing, climate change, water resources, water use, water rights, adaptation to climate change, warming adaptation

Abstract:
Should agencies receive Chevron deference when interpreting the reach of their own jurisdiction? This article argues that, in general, they should not. We begin by identifying and detailing the various different types of jurisdictional questions that may arise in statutory interpretation. The article then surveys how the Supreme Court and lower federal courts have analyzed these different aspects of the jurisdiction problem, with a particular attention to statutory silences. The Court's Chevron jurisprudence strongly suggest that deference to agency determinations of their own jurisdiction should be disfavored, particularly where a statute is silent (and not merely ambiguous) about the existence of agency jurisdiction. In particular, we argue that courts should deny Chevron deference regardless of whether an agency is asserting or disclaiming jurisdiction. This no-deference rule should apply in both existence- and scope-of-power cases, but courts should continue to show deference where agencies assert the existence of a factual predicate that triggers jurisdiction. We support our proposal with arguments drawing on both traditional administrative law norms and public choice analyses of the incentives faced by agencies and other relevant actors. While there are strong counterarguments to our proposal - particularly the potential difficulty in distinguishing between jurisdictional and non-jurisdictional questions - this article maintains that denying deference in the jurisdictional context is desirable and consistent with Chevron principles.

'Chevron USA, Inc. v. Natural Resources Defense Council', 467 U.S. 837, 843 (1984), 'Chevron' Doctrine, 'Chevron' deference, Agency jurisdiction, Administrative Law, Administrative Jurisdiction, Public Choice

Abstract:
Antitrust law aims to protect consumers from anti-competitive conduct that can restrict output and increase price. Conservation, on the other hand, often requires restrictions on output in order to maintain resource consumption at a sustainable level. Thus, while antitrust and environmental law both seek to advance the public interest, in the context of resource conservation they can conflict. Collective arrangements among private firms to reduce output or allocate market shares are inherently suspect, even if the intent or effect is to conserve an otherwise threatened ecological resource. This paper examines the tension between resource conservation and antitrust in the context of marine fisheries. Beginning in the 1930s, fishing unions and cooperatives have been prosecuted for setting prices or restricting output, even where such arrangements have served conservation purposes. By limiting the sorts of cooperative arrangements that fishers or other common pool resource users may adopt to limit access or utilization of the underlying resource, antitrust law may inhibit the development of more effective self-governing institutions.

Abstract:
In January 2000, delegates from over 100 nations completed negotiations on an international treaty for the regulation of biotechnology, the Cartagena Protocol on Biosafety. The stated purpose of this protocol is to enhance the protection of biological diversity. Despite its good intentions, there is a mismatch between the protocol's substantive provisions and present threats to biological diversity. The protocol endorses "precautionary" regulation of transboundary shipments of genetically engineered organisms, including crops, so as to reduce the environmental risks that such organisms may pose. The greatest threat to biological diversity is habitat loss, largely driven by the conversion of land for agricultural uses. Genetically engineered crops could alleviate pressures to clear habitat by increasing per-acre agricultural productivity. Therefore, insofar as the biosafety protocol discourages the use of genetically engineered crops, it could do more harm than good.

Abstract:
In January 2000, delegates from over 100 nations completed negotiations on an international treaty for the regulation of biotechnology, the Cartagena Protocol on Biosafety. The stated purpose of this protocol is to enhance the protection of biological diversity. Despite its good intentions, there is a mismatch between the protocol?s substantive provisions and present threats to biological diversity. The protocol endorses "precautionary" regulation of transboundary shipments of genetically engineered organisms, including crops, so as to reduce the environmental risks that such organisms may pose. The greatest threat to biological diversity is habitat loss, largely driven by the conversion of land for agricultural uses. Genetically engineered crops could alleviate pressures to clear habitat by increasing per-acre agricultural productivity. Therefore, insofar as the biosafety protocol discourages the use of genetically engineered crops, it could do more harm than good.

Abstract:
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 environmental harm in the atmosphere. The federal government did much to facilitate this course, as the Environmental Protection Agency has been anything but a reluctant regulator, and as such the present administration was not the most compelling advocate for its own cause. Now that EPA has authority to regulate greenhouse gases, regulatory controls on motor vehicles are sure to follow, as will regulations on other emission sources. In time, however, Massachusetts v. EPA may come to stand for more than the simple proposition that Congress delegated authority to regulate greenhouse gases under the Clean Air Act. It may herald in a new era of state-sponsored litigation, environmental standing, and statutory interpretation - and yet still do little to cool down a warming planet.

Massachusetts v. EPA, Clean Air Act, standing, Article III, environmental regulation, greenhouse gas emissions, climate change, environmental protection

Abstract:
In Solid Waste Association of Northern Cook County v. U.S. Army Corps of Engineers ("SWANCC"), the Supreme Court considered whether federal regulatory authority reaches isolated wetlands and ponds due to the potential presence of migratory birds. In rejecting such an expansive view of federal authority, the Court's majority underlined its devotion to the federalism principles enunciated in Lopez and other recent cases. The federalist majority further reiterated its support for a canon of statutory construction which holds that federal statutes will not be interpreted to intrude into state matters, such as local land-use control, absent a clear statement by Congress. The dissent argued that the majority ignored Congress' clear intent and, in the process, exposed millions of acres of wetlands to destruction.

This paper argues that there is little reason to believe that interstate competition amongst states will produce a "race to the bottom" in environmental regulation today, if it ever did. Interstate competition is not likely to result in sub-optimal environmental protection, at least when compared with the federal alternative. States will make trade-offs between environmental protection and other values that are most consistent with the values of the people in those states and because inter-jurisdictional competition will promote discovery of preferable environmental protection strategies. The presence of interstate externalities can, in certain circumstances, justify federal environmental regulation. However, the presence of such externalities is often overstated, and the costs of addressing such externalities through federal regulation may well be greater than maintaining state primacy. Insofar as wetlands represent public goods that are undersupplied by states, federal intervention may be justified, but this need not mean federal regulation. Fiscal policy, such as economic incentives or the direct provision of environmental goods, are sufficient. In short, there is little basis for the argument that interstate externalities justify a departure from the Lopez federalism analysis. The SWANCC majority articulated its federalism rationale without addressing environmental concerns. The opinion rested on the broad federalism principles underlying the Court's prior decisions. The interpretive canon that seeks to avoid facing constitutional questions ? in this case whether a given statute exceeds Congress commerce clause power ? serves the same purpose as the federalism doctrine itself: It preserves the preeminence of state authority in the broadest possible sphere. Where Congress has been ambiguous about the extent to which it is asserting federal authority, such a canon will be sufficient to advance the aims of federalism. This will not be true in all cases, however. There are other environmental statutes, such as the Endangered Species Act, which assert equally far-reaching federal authority with less statutory ambiguity. In such cases, the Court will need to confront the arguments against federalism head-on to preserve inter-jurisdictional competition amongst the states.

Abstract:
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 demonstrate that failing to compensate private landowners for the costs of environmental regulations 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. This results in the "overconsumption" of land-use regulations relative to other environmental protection measures that could be more cost-effective at advancing conservation goals. While any specific compensation proposal would present implementation questions, there are reasons to believe that a compensation requirement could improve environmental conservation efforts.

regulatory takings, takings compensation, species conservation, property rights, fiscal illusion, land-use control

Abstract:
In The Roberts Court at Age Three, Dean Erwin Chemerinsky offers a preliminary assessment of the Roberts Court. Among other things, Dean Chemerinsky reviews the effect of the Court's shrunken docket and the role of Justice Anthony Kennedy as the Court's median justice. Reviewing the Court's decisions over the past three years, Dean Chemerinsky concludes that the Roberts Court is the the most conservative Court since the mid-1930s. This is a substantial overstatement. The Roberts Court appears moderately more conservative than its predecessors in some contexts, but is also quite liberal in others. Its decisions on enemy combatants, capital punishment, and standing, among other issues, could hardly be characterized as conservative, however this term is defined. Furthermore, any assessment of the Roberts Court at this point is necessarily tentative. The current roster of justices have sat together for less than three full terms, and the small size of the docket means any single term provides an unrepresentative picture of the Court's jurisprudence. While the Roberts Court may eventually show itself to be a conservative court, there is no basis at present to claim the Court is the most conservative in over seventy years.

Chief Justice John Roberts, Erwin Chemerinsky

Abstract:
Supreme Court decisions limiting citizen suit standing are commonly viewed as a threat to environmental protection. Lujan v. Defenders of Wildlife, Steel Co. v. Citizens for a Better Environment, and other cases are portrayed as attacks on environmental activists' ability to safeguard the public from pollution while decisions which expand citizen-suit standing, such as Friends of the Earth v. Laidlaw, are seen as victories for environmental protection. The underlying premise of these charges is that citizen suits play an important role in safeguarding environmental values. From this standpoint, legal doctrine which curtails citizen suits is, by implication, "anti-environmental." At first blush, this view seems eminently reasonable and intuitive. Citizen suits, insofar as they enhance governmental enforcement of environmental laws and prompt cleanup, should be environmentally beneficial. But is this necessarily so? Do liberalized standing rules, such as those embraced in Laidlaw, maximize environmental protection, or would the ecology be better off with a set of standing rules more focused on a demonstration of environmental harm? This paper argues that liberalized standing rules, insofar as they do not make standing contingent upon any tangible, identifiable environmental harm, cannot be assumed to enhance environmental quality. It further presents evidence that expansive citizen suit litigation may even make some environmental problems worse by exacerbating the perverse incentives created by existing regulations. It concludes by suggesting an alternative approach to citizen-based environmental protection that replaces conventional citizen suit provisions with property rights in environmental resources and explains why such an approach may better serve environmental goals.

Abstract:
There was little doubt that the federal government would prevail in Gonzales v. Raich. What was, perhaps, unexpected was so expansive a repudiation of enforceable judicial limitations on federal power. In upholding the constitutionality of the Controlled Substances Act as applied to the non-commercial intrastate possession and consumption of marijuana for medical purposes as authorized under California law, the Supreme Court hollowed out the core of contemporary commerce clause jurisprudence. Insofar as United States v. Morrison had stood for the propositions that only intrastate economic activities could be aggregated for purposes of the "substantial effects" test, that attenuated connections between a regulatory scheme and interstate commerce exceeded Congress' limited and enumerated powers, and, perhaps most importantly, that judicial review should serve as the ultimate check on overly broad assertions of federal power, it may now be a dead letter. The rationale adopted by Justice Stevens' majority opinion undercuts the primary judicial safeguards of federalism. While the Raich majority purports to be following the doctrinal contours of Lopez and Morrison, it actually represents a repudiation of these prior cases. Further, Raich continued the Supreme Court's uninterrupted practice of rejecting as-applied challenges to federal statutes, and is likely to preclude any such suits in the future. The inability to mount as-applied challenges to broad regulatory statutes like the CSA is significant because it creates additional barriers to future commerce clause litigation. The lack of a viable way to challenge discrete applications of broader federal laws means few commerce clause challenges can ever hope to succeed. The central holding of Morrison, like the legendary Jim Morrison, now lives on only in the hearts of true believers.

Gonzales v. Raich, 125 S.Ct. 2195 (2005), United States v. Morrison, 529 U.S. 598 (2000), Commercial Clause, As applied challenges, Federalism, Constitutional Law

Abstract:
Rapanos v. United States is the latest episode in the serial effort to identify the precise meaning of "waters of the United States" under the Clean Water Act. Although no single opinion in Rapanos commanded a majority of the Court, the Court delivered a discernible holding. Specifically, the Court held that the 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. While there is a clear holding in Rapanos, the lack of majority opinion will ensure continued litigation and uncertainty over the precise scope of federal regulatory authority under the CWA. Already, lower courts are adopting variable interpretations of the decision. Whether Rapanos results in an erosion of environmental protection will be a function of how various institutions and entities respond. Under Rapanos federal regulatory officials retain substantial leeway to define "waters of the United States" in expansive terms. The decision may also spur state and local governments to enhance their conservation efforts and induce policymakers at all levels of government to pursue more non-regulatory conservation strategies.

Rapanos, waters of the United States, Federal wetland regulation, wetlands, Clean Water Act, environmental protection, water pollution control, Army Corps of Engineers, navigable waters, significant nexus test, SWANCC

Abstract:
Property rights hold a central place in our Constitutional design and provide the foundation for America's market economy. Admiration of private property has not been universal, however. Some environmental scholars and policymakers have been particularly critical of classical liberal conceptions of private property on both theoretical and practical grounds, suggesting that traditional, classical liberal notions of property rights are incompatible with the demands of environmental protection. These perspectives influenced the development of command-and-control environmental regulation in the 1960s and 1970s. In recent years, however, the perception of private property's role in environmental conservation has begun to change. Disregard for the rights and interests of property owners spurred a "backlash" of opposition to environmental regulation. Environmental policymakers also came to recognize that the incentives created by land-use may compromise some conservation strategies. These developments spurred a reconsideration of the role of property rights in environmental policy, encouraging the development of more property-friendly regulatory strategies as well as the use of property rights themselves as a tool for environmental protection.

Private property, classical liberalism, environmental protection, command-and-control regulation, land conservation, grazing rights, water rights, fishing rights

Abstract:
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 Western Reserve Law Review. The purpose of this symposium is to further the critical analysis and examination of the potential for common law remedies to address environmental concerns. There is now a foundation in the legal and economic literature on the role of the common law in addressing environmental issues, including some critical commentary on common law solutions. The literature is far from comprehensive, however. This symposium is intended to help fill this gap by identifying the potential promise and pitfalls of relying more upon common law approaches to environmental protection and identifying how common law environmental protection may be achieved.

Environmental protection, common law, nuisance, free market environmentalism, environmental law, pollution control

Abstract:
This article explores the tension between antitrust principles and conservation of the marine commons. Part I provides an overview of fishery conservation efforts in theory and practice. As a common pool resource, marine fisheries will fall prey to the "tragedy of the commons" unless consumption is limited to sustainable levels, whether through property rights, community norms, or government regulation. Part II briefly explains the antitrust concerns raised by efforts to restrict output, fix prices, or allocate territories. Although each of these actions may, in specific circumstances, facilitate conservation efforts, they are each presumptively suspect under antitrust law. Part III explores the conflict between conservation and antitrust in fisheries, focusing on cases in which competitors or government officials sought to prosecute fishing unions and other cooperative fishery organizations for antitrust violations. These cases illustrate that collective efforts by fishers to control exploitation of the underlying resources are presumptively illegal under antitrust law. This part also explores potential exemptions for certain types of cooperative institutions as well as the impact of antitrust concerns on the implementation of property-based fishery management regimes. Part IV then considers how antitrust concerns may inhibit conservation or other environmental goals in the contexts of oil production and pollution control. While the focus of this article is fishery conservation, the analysis is potentially applicable to other contexts in which antitrust law inhibits non-governmental common pool management efforts. Part V explores how conservation objectives might be reconciled with antitrust concerns. Insofar as antitrust doctrine is motivated by efficiency concerns, antitrust law need not be hostile to private efforts to conserve common pool resources. The doctrine of ancillary restraints provides a sound analytical foundation for approving at least some cooperative fishery conservation efforts under the rule of reason. Insofar as existing antitrust precedent forecloses such a result, statutory measures may facilitate private cooperative fishery conservation efforts. In either case, antitrust law should be made more hospitable to non-governmental conservation efforts.

Abstract:
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 of greenhouse gases from motor vehicles and other emission sources. While the Court did not order the EPA to regulate with respect to climate change, the majority opinion gives the Agency little option but to regulate, and not just for motor vehicles. Unless the relevant provisions of the Clean Air Act are revised by Congress in new climate change legislation, Massachusetts v. EPA will mean greenhouse gas emission limits on a wide variety of sources.

Massachusetts v. EPA, state standing, administrative law, environmental regulation, greenhouse gas emissions, environmental protection, vehicle emission standards, Clean Air Act, climate change

Abstract:
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 with each other, and embrace competing conceptions of the role of the judiciary in the separation of powers. What neither decision did, however, is etch a conservative imprint on the law of standing.

This article is based upon remarks delivered at the Regent University Law Review symposium, Justiciability After Hein and Massachusetts: Where Is the Court Standing? Nov. 30, 2007.

Standing, Justiciability, taxpayer standing, generalized grievances, Massachusetts v. EPA, Hein v. Freedom from Religion Foundation

Abstract:
In 2004, California adopted the nation's first regulations limiting the emission of greenhouse gases from new motor vehicles. Before these regulations can take effect, however, California must obtain a waiver of preemption under the Clean Air Act from the U.S. Environmental Protection Agency. California has sought, and received, numerous waivers of preemption for air pollution control programs in the past. EPA approval of this waiver request is not automatic, however. This essay provides an overview of the distinct legal and policy issues raised by California's request for a waiver of federal preemption of its new greenhouse gas emission regulations. After summarizing the legal requirements for obtaining a waiver of preemption under the Clean Air Act, this essay explains why it may be more difficult for California to obtain a waiver for greenhouse gas emission regulations than it has been for prior state regulations governing traditional air pollutants. The essay then considers how California's waiver request fits into a broader policy framework dividing responsibility for environmental protection between the federal and state governments. Accepting there are strong arguments for greater state flexibility in environmental law, this essay assesses the relative strength of California's demand for greater freedom to set its own greenhouse gas emission control policies.

Clean Air Act, EPA, waiver of federal preemption, California's greenhouse gas emission regulations, Energy Policy & Conservation Act, Massachusetts v. EPA, California Air Resources Board, vehicle emission standards

Abstract:
Jurisdictional mismatch plagues contemporary environmental law and policy. The division of authority and responsibility for environmental protection between the federal and state governments lacks any cohesive rationale or justification. The federal government regulates in many areas where there is no clear analytical basis for federal involvement. At the same time, the federal government is relatively absent where a stronger federal presence could be justified. Conversely, states are precluded, discouraged or otherwise inhibited from adopting environmental protections where state efforts would be worthwhile. At the same time, state intervention seeps into areas where a dominant federal role would be more defensible. This jurisdictional mismatch produces sub-optimal levels of environmental protection, wastes regulatory resources, discourages innovation, and inhibits the adoption and evolution of more effective environmental protection measures. Environmental protections would be more successful were responsibility divided between the federal and state governments in a more justifiable manner. To address the current mismatch, the federal government should reorient its efforts toward those areas in which the federal government possesses an institutional advantage, due to economies of scale, or where state and local governments are incapable of addressing environmental problems, such as where there are substantial interstate spillovers.

Federalism, Environment, Interstate Spillovers, National Public Goods, Economies of Scale, Institutional Bias

Abstract:
The fundamental problem with existing approaches to environmental regulation is that they are excessively centralized. As such, they exhibit most of the failings of Soviet-style command-and-control systems: excessive rigidity, inefficiency, diminishing marginal returns, poor prioritization, and so on. Given these problems, the most essential reforms of environmental policy are those that decentralize decision-making authority and responsibility. While state regulators are on the frontlines for the enforcement of much environmental regulation, key priority-setting and decision-making authority remains centralized in Washington, D.C. Genuine ecological experimentation, starting at the state and local level, is required to bring about the next generation of environmental reforms. This paper outlines one possible proposal to reform environmental policy by reopening the states as laboratories of environmental policy. Part II of this paper fleshes out the argument for decentralization, highlighting why vesting primary authority for most pollution control problems in the hands of state and local governments is preferable to maintaining control in Washington, D.C. Part III discusses some of the "reinvention" and decentralization efforts to date, and how they have failed to foster sufficient innovation to address current environmental needs. These failures suggest the need for more dramatic reform than has been considered to date. Part IV outlines a specific policy proposal: environmental forbearance. This proposal, modeled on the flexibility-enhancing provisions of the Communications Act, would provide states a means of getting legal authority to develop and implement new environmental policy ideas and set new environmental priorities. Part V discusses the dominant critiques of devolving regulatory authority to the states and how, if at all, these criticisms should impact the forbearance proposal.

federalism, environment, devolution

Abstract:
This article seeks to identify the ways in which federal actions can influence state regulatory choices in the context of environmental policy. The federal government may directly influence state policy choices by preempting state policies or by inducing state cooperation through the use of various incentives and penalties for state action. The federal government may indirectly, and perhaps unintentionally, influence state policy choices as well. Federal policies may encourage greater state regulation by reducing the costs of initiating regulatory action or by placing issues on state policy agendas. Federal regulation may also discourage or even "crowd-out" state-level regulatory action by reducing the net benefits of state-level initiatives. The potential for federal regulation to have both positive and negative indirect effects on state regulatory choices suggests that increases in federal regulation can alternatively enhance or reduce state regulatory activity and may, in some instances, even result in a net reduction of regulatory protection for environmental resources. Such potential effects are largely ignored in environmental policy discussions, and warrant subsequent empirical study. While this paper focuses on environmental regulation, the overall framework should be applicable to other regulatory contexts.

Environment, Federal Action, State Action, Regulations, Empirical Evidence, Federalism, Cooperative federalism

Abstract:
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. With the enactment of the Resource Conservation and Recovery Act (RCRA) and Comprehensive Emergency Response, Cleanup and Liability Act (CERCLA, aka "Superfund") Congress centralized environmental policy questions that are, in many respects, inherently local in nature. This produced a "mismatch" between those jurisdictions with regulatory primacy and the nature of the environmental problems at issue.

Contamination of soil and groundwater are site-specific, rarely crossing state lines. Due to the local nature of hazardous waste problems, state governments should be given the opportunity to assume leadership of hazardous waste regulation and cleanup. While the federal government has an important role to play in the regulation and management of hazardous wastes, this role requires more targeted and specialized efforts than the adoption and maintenance of a comprehensive cradle-to-grave regulatory system and a large scale waste site cleanup program that impose federal standards on local communities. Through technical guidance federal agencies can inform local waste management and cleanup decisions without imposing uniform federal standards that fit few jurisdictions well. With federal efforts confined to those areas in which the federal government possesses a comparative advantage, state governments will be freed to reassume leadership in hazardous waste policy and tailor state policies to local needs and concerns. This, in turn, could foster greater recognition of and accountability for the trade-offs inherent in hazardous waste policy, and a more justifiable regulatory regime for hazardous waste.

Hazardous waste regulation, RCRA, CERCLA, Superfund, EPA, cooperative federalism, ecological forbearance, regulatory primacy, federal role of waste management

Abstract:
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 account, it bars the creation and evolution of ecologically valuable and socially beneficial arrangements among resource users.

antitrust, competition policy, environment, environment protection, marine commons, commons, collusion, property rights, tragedy of the commons, antitrust law

Abstract:
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 a general matter, the arguments for state leadership and independence are greatest where environmental concerns are localized, and weakest where environmental concerns cross jurisdictional boundaries, as is the case with global climate change. After consideration of the vices and virtues of state climate policy initiatives, the paper considers the legal issues surrounding California's waiver request in some detail. The paper then considers what environmental law might look like if the federal government took the idea of environmental waivers more seriously and afforded states greater opportunities to seek relief from federal environmental strictures. The final portion of the paper outlines the basic case for granting states access to waivers throughout federal environmental law, and briefly details what such a waiver provision might look like.

climate change policy, state climate policy initiatives, administrative law, waiver of federal preemption, climate federalism, EPA, waiver of federal preemption, global climate change, California Air Resources Board, vehicle emission standards, environmental federalism

Abstract:
The Supreme Court's decision reaffirming limits on federal regulatory jurisdiction in Rapanos v. United States was significant, but hardly revolutionary. The Court's holding that the Clean Water Act only reaches those wetlands with a significant nexus to navigable-in-fact waters followed directly from its prior decision in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, in which the Court held the CWA did not extend to isolated, intrastate waters because they lack a significant nexus to navigable waters. Rapanos and SWANCC suggest the Court is reluctant to conclude Congress has authorized far-reaching federal regulatory controls over private land use, absent explicit statutory language to the contrary. Such a federalism clear statement rule may be in tension with some environmental concerns, but it need not hamper environmental conservation. Environmental progress is wholly consistent with meaningful limits on federal power. If the federal government is to play an optimal role in the protection of wetlands, and match its efforts to those aspects of wetland conservation that require action of a federal scope, it would concentrate its efforts in those areas where non-federal efforts are most likely to be insufficient. The challenge to policy makers is to adapt conservation measures to the broader legal landscape and recognize that environmental protection can live within legal limits.

Rapanos v. United States, section 404 of Clean Water Act, wetlands, federal land use legislation, EPA, private land use, federal regulatory jurisdiction, United States v. Lopez, SWANCC

Abstract:
Several recent empirical studies have indicated that the Endangered Specifies Act (ESA) discourages species conservation on private land. This is because the law encourages landowners to shoot, shovel and shut up before federal authorities discover the species are present or may move onto the land. Most worrisome, the studies suggest that the net effect of the ESA on private land could be negative. Habitat loss and fragmentation represent the greatest threat to endangered species because private land is indispensable to environmental conservation.

ESA, endangered species, perverse incentives, outcome, environmentalism, private land use, habitat destruction, federal regulation, fines, incentives, policy

Abstract:
Water policy experts contend that the United States is heading toward a water scarcity crisis in the coming years. Global climate change is likely to make water scarcity much worse in the long run. This article argues that demands of current and projected water management challenges can best be met through a greater reliance on water markets. To facilitate this, water management must shift toward recognition of transferable rights in water that facilitate voluntary exchanges and the market pricing of water resources.

natural resources, price signals, regulation, environmental policy, water, water policy, climate change, water markets, water supply, property rights, market pricing, resource allocation, price signals, government subsidies

Abstract:
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 the environmental context does not mean the Court is not more business-friendly in other areas, such as preemption or securities litigation. Yet while there are no signs of a business-friendly approach to environmental cases, there are signs the Court tends to side with the government. Thus far in the Roberts Court, governmental interests have prevailed in environmental cases with greater frequency than business interests. This is only a preliminary assessment because the Roberts Court has only decided fourteen environmental law cases to date, and several more are pending. Nonetheless, if this pattern continues, then whether the Court hands down business-friendly decisions may depend on whether the political branches are or continue to be receptive to business interests.

Robert's Court, United States Supreme Court, Environmental Law, Business Interests, Government Interests

Abstract:
The Ohio Supreme Court has changed significantly over the past six years. Significant turnover on the court has produced significant change in the court's approach to many legal issues, in particular the degree of deference shown to legislatively enacted policies. Whereas the court of the 1990s developed a reputation for aggressively intervening in controversial policy matters, the current court is far more restrained, consistently applying a presumption of constitutionality to legislative enactments. The current court is also largely unsympathetic to new and innovative tort claims or cases that seek judicial revision of existing rules or statutes to facilitate plaintiffs' actions. Evidence of the court's greater deference to the legislature can be found in many areas, including education, tort reform, and family law, among others. While the court appears less likely to invalidate legislative actions, it continues to scrutinize government actions to ensure they are constitutional. The court has also been drawn into contentious political battles, leading to charges of partisanship. While some have been quick to accuse the Ohio Supreme Court of embracing a conservative of pro-business legal agenda, a review of the court's most prominent and consequential decisions of the past several years does not appear to support such criticisms. The common thread in the Court's recent decisions is not a particular outcome, but a particular approach. In a broad number of cases, covering a wide range of areas, the court has followed its stated intention to provide greater deference to legislative enactments and resist creating new causes of action or expanding existing bases for tort liability. The result is a more modest state supreme court. This paper was prepared for the Federalist Society for Law and Policy Studies.

Ohio Supreme Court, Deference, Legislative branch, Tort law, Legal Agenda

Abstract:
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. With the enactment of the Resource Conservation and Recovery Act (RCRA) and Comprehensive Emergency Response, Cleanup and Liability Act (CERCLA, aka "Superfund") Congress centralized environmental policy questions that are, in many respects, inherently local in nature. This produced a "mismatch" between those jurisdictions with regulatory primacy and the nature of the environmental problems at issue.

Contamination of soil and groundwater are site-specific, rarely crossing state lines. Due to the local nature of hazardous waste problems, state governments should be given the opportunity to assume leadership of hazardous waste regulation and cleanup. While the federal government has an important role to play in the regulation and management of hazardous wastes, this role requires more targeted and specialized efforts than the adoption and maintenance of a comprehensive cradle-to-grave regulatory system and a large scale waste site cleanup program that impose federal standards on local communities. Through technical guidance federal agencies can inform local waste management and cleanup decisions without imposing uniform federal standards that fit few jurisdictions well. With federal efforts confined to those areas in which the federal government possesses a comparative advantage, state governments will be freed to reassume leadership in hazardous waste policy and tailor state policies to local needs and concerns. This, in turn, could foster greater recognition of and accountability for the trade-offs inherent in hazardous waste policy, and a more justifiable regulatory regime for hazardous waste.

Abstract:
This Article, prepared for the Case Western Reserve Law Review symposium on “Access to the Courts in the Roberts Era,” offers a preliminary look at the standing jurisprudence of the Roberts Court. Contrary to claims made by some Court commentators, the Roberts Court has not tightened the requirements for Article III standing. To the contrary, insofar as the Roberts Court has altered the law of standing, it has made it easier for at least some litigants to pursue their claims in federal court. The Court’s decisions denying standing have largely reaffirmed prior holdings. By comparison, some of the Court’s decisions on standing, most notably Massachusetts v. EPA and, to a lesser extent, Sprint Communications Co. v. APCC Services Inc., have lowered the standing bar, perhaps quite significantly. Whatever else has transpired with regard to citizen “access to federal courts” in the first four years of the Roberts Court, standing for citizens to invoke the jurisdiction of federal courts remains in place.

Standing, Robert’s Court, United States Supreme Court, Access to Justice, Article III, Massachusetts v. E.P.A., 549 U.S. 497 (2007), Summers v. Earth Island Institute, 129 S. Ct. 1142 (2009), Hein v. Freedom from Religion Foundation, 127 S. Ct. 2553 (2007), Sprint Communications Co. v. APCC Services

Abstract:
The dominant approach to environmental policy endorsed by conservative and libertarian policy thinkers, so-called "free market environmentalism" (FME), is grounded in the recognition and protection of property rights in environmental resources. Despite this normative commitment to property rights, most self-described advocates of FME adopt a utilitarian, welfare-maximization, approach to climate change policy, arguing that the costs of mitigation measures could outweigh the costs of climate change itself. Yet even if anthropogenic climate change is decidedly less than catastrophic - indeed, even if it net beneficial to the globe as whole - human-induced climate change is likely to contribute to environmental changes that violate traditional conceptions of property rights. Viewed globally, the actions of some countries - primarily developed nations (such as the United States) and those nations that are industrializing most rapidly (such as China and India) - are likely to increase environmental harms suffered by less developed nations - nations that have not (as of yet) made any significant contribution to global climate change. It may well be that aggregate human welfare would be maximized in a warmer, wealthier world, or that the gains from climate change will offset environmental losses. Such claims, even if demonstrated, would not address the normative concern that the consequences of anthropogenic global warming would infringe upon the rights of people in less-developed nations. A true FME approach to climate change policy should be grounded in a normative commitment to property rights. As a consequence, this paper suggests a complete rethinking of the conventional conservative and libertarian approach to climate change.

Environmental Law, Environmental Policy, Free Market Environmentalism, Climate Change, Property Rights

Abstract:
Frank S. Meyer played a central role in defining the post-war American conservative movement. Through his writings and political activities, he defined and defended an ideological "fusion" of traditional conservative principles and libertarian political beliefs. While concerned with maintenance of an objective moral order and the pursuit of virtue in the individual, Meyer argued that the freedom of the person is the central and primary end of political society. The American system of government, with its horizontal and vertical separations of power, came closer than any political system in history to providing the protection for individual liberties necessary for the effective pursuit of virtue. Federalism was particularly important as it could forestall the centralization of government power. Virtue, to have any meaning, had to be freely chosen, but providing for individual freedom provided no guarantee that individuals would pursue virtuous ends. By the same token, federalism and the separation of powers did not guarantee that state governments would adopt wise or moral policies, as the history of the civil rights struggle attests. Nonetheless, Meyer believed federalism was essential if individual freedom was to endure.

Frank Meyer, Individual Freedom, Conservative, Libertarian

Abstract:
Most Americans consider themselves environmentalists, yet most experts are dissatisfied with existing environmental regulations, which are both inefficient and inequitable. Worse, many don't serve environmental goals. This article outlines an alternative approach to environmental policy based on market institutions and property rights rather than central-planning and bureaucratic control. The aim is both to improve environmental protection and lessen the costs ? economic and otherwise ? of achieving environmental goals. It seeks to ensure that Americans' environmental values are advanced without sacrificing the individual liberties the American government was created to protect.

The problem with current regulatory approaches is not merely that they are inefficient or overly bureaucratic. Rather, it is the reliance upon centralized, regulatory institutions to prioritize and pursue environmental goals. An alternative paradigm for environmental protection is grounded in market institutions, property rights in particular. This approach, often referred to as "free market environmentalism," focuses on institutions and the incentives that they create. It advances environmental protection by incorporating environmental resources and values into the marketplace, rather than regulating them outside economic institutions. This paper provides a theoretical overview of a property-based approach to environmental protection and the outlines a series of principles that should guide those interested in a more efficient, effective, and equitable approach to environmental protection with specific examples of policy reforms that can reconcile environmental protection and market institutions.

environment, free market environmentalism, property rights, market environmentalism

Abstract:
Since the 1970s the federal government has been involved in the regulation of wetlands under Section 404 of the Clean Water Act. Like most federal environmental programs, authority for this regulation is premised upon an expansive reading of the Commerce Clause. In 1995, however, the Supreme Court suggested that Congress' Commerce Clause power is limited, raising questions about the constitutional limits of federal environmental regulation. This article analyzes the Commerce Clause doctrines explicit and implicit in United States v. Lopez and the extent to which this decision should limit federal wetlands regulation. The article continues to question whether judicially enforced limits on federal regulatory authority will compromise wetland conservation efforts. Based upon a review of the theoretical literature and empirical evidence, the article concludes that limiting the federal government's ability to regulate wetlands need not undermine conservation efforts, and there is substantial reason to believe that reimposing constitutional limits on federal regulatory authority may well improve environmental protection efforts.

Abstract:
This is the transcript of a Mock Congressional Hearing regarding the NSA wiretapping controversy. The panel featured Ruth Wedgewood and David Cole testifying before a Senate Committee. The debate and discussion highlighted concerns touching on privacy, FISA, and the Fourth Amendment.

NSA Surveillance, NSA, wiretapping, terrorism, fourth amendment, 4th amendment, FISA, Foreign Intelligence Surveillance Act, warantless wiretapping