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Abstract:
In Massachusetts v. EPA, 127 S. Ct. 1438 (2007), the Supreme Court held that carbon dioxide (CO²) and other greenhouse gases (GHGs) are air pollutants within the meaning of the Clean Air Act (CAA). Although its decision on the merits is important, the Court's conclusion that Massachusetts had standing to file suit because states are entitled to more lenient standing criteria may have a greater impact in the long-term on legal doctrine. In Massachusetts, the Supreme Court for the first time clearly gave greater standing rights to states than ordinary citizens. The Court, however, failed to explain to what extent or when states are entitled to more lenient standing. This Article proposes that courts relax the immediacy and redressability prongs of the standing test when states bring parens patriae suits to protect their quasi-sovereign interest in the health, welfare and natural resources of their citizens. This proposed standing test would be similar to the relaxed standing test for procedural rights plaintiffs but is based on the Court's historic parens patriae decisions.

The Court stated that [i]t is of considerable relevance that the party seeking review here is a sovereign State and not...a private individual. The Court contended that the Court in its 1907 decision in Georgia v. Tennessee Copper Co. "had recognized that States are not normal litigants for the purposes of invoking federal jurisdiction." In Tennessee Copper and several other cases, the court had recognized a special standing doctrine of parens patriae standing to allow states to protect certain quasi-sovereign interests including the health, welfare or natural resources of its citizens. The Court concluded that "Massachusetts' well-founded desire to preserve its sovereign territory today" gave it standing to invoke federal jurisdiction Justice Stevens concluded that "the Commonwealth is entitled to special solicitude in our standing analysis."

This Article concludes that the Court has historically given states preferential status in federal courts when a state files a parens patriae suit based on the state's quasi-sovereign interest in the health and welfare of its citizens or the natural resources of its inhabitants and territory. There are sound reasons to apply lesser standing requirements to enable states to protect their quasi-sovereign interest in the health and welfare of their citizens or the natural resources of its inhabitants and territory. Chief Justice Roberts' dissenting opinion is correct on many details, but fails to understand that the theoretical grounds for parens patriae standing also support a more relaxed standing test for states. A quasi-sovereign interest is inherently less concrete and particularized than the type of injuries that individual citizens need for standing, yet the Court has allowed states standing to protect their general interest in their citizens' health and welfare. Although it is not technically a standing case, Tennessee Copper is based on the fundamental distinction that states have different and greater rights than individual citizens. Thus, the Massachusetts majority correctly used the Court's parens patriae decisions as the basis for giving states preferential access to federal courts even though none of the parens patriae cases had explicitly applied a lower standing threshold for states. The Tennessee Copper decision and other parens patriae cases justify a similar relaxation of the immediacy and redressability requirements for states filing parens patriae suits. By using and refining the Court's procedural rights standing test as a model, this Article proposes a workable standing test for states.

Standing, Environmental Law, Global Warming, Administrative Law, Constitutional Law

Abstract:
The Alien Tort Statute (ATS) provides that the district courts shall have original jurisdiction over any civil action by an alien for a tort only, committed in violation of the law of nations or a treaty of the United States. Several decisions have rejected environmental claims under the ATS because they read the ATS narrowly to protect only the most fundamental international human rights such as those prohibiting torture or war crimes and have been unwilling to accept broader claims to a right to life or a healthy environment. In 2002, in Sarei v. Rio Tinto PLC, the District Court for the Central District of California concluded that the United Nations Convention on the Law of the Sea (UNCLOS), which prohibits marine pollution affecting international waters, codified customary international law that may provide the basis of a claim under the ATS even though the United States has never ratified UNCLOS. The court, however, dismissed all of the plaintiffs' claims as presenting nonjusticiable political questions and alternatively dismissed the UNCLOS claim under the act of state doctrine and the doctrine of international comity. Even though it ultimately dismissed the case, the district court's decision in Sarei that UNCLOS constitutes customary international law cognizable under the ATS could enable plaintiffs to bring customary international law claims based on several MEAs that the United States has never ratified provided that a sufficiently large number of other nations have recognized that the agreement at issue implicates specific, universal and obligatory norms of international law.

In 2004, the Supreme Court in Sosa v. Alvarez-Machain held that federal courts should allow ATS suits based on principles of contemporary international law only if those norms have both wide acceptance and definite content comparable to those recognized as causes of action in 1789, especially piracy. In 2006, a divided panel of the Ninth Circuit affirmed the district court's decision that UNCLOS constitutes customary international law that is cognizable under the ATS because the Convention has been widely adopted. On April 12, 2007, however, in response to the defendant's petition for rehearing and for rehearing en banc, the three-judge panel withdrew its 2006 opinion and issued a superseding opinion. The majority did not decide whether the plaintiffs' substantive claims were valid, but did conclude that the allegations were sufficiently serious to warrant the exercise of federal jurisdiction. The Ninth Circuit reversed the district court's dismissal of all claims as nonjusticiable political questions and vacated the district court's dismissal of the UNCLOS claims on act of state and comity grounds, for reconsideration in light of its opinion.

On August 20, 2007, the Ninth Circuit ordered that the case be reheard by the en banc court. The order stated, "The three judge panel opinion shall not be cited as precedent by or to this court or any district court of the Ninth Circuit, except to the extent adopted by the en banc court." The Ninth Circuit's decision to grant a rehearing by the en banc court may reflect its concern about an overly broad interpretation by the three-judge panel opinion, although it is impossible to know until the Circuit issues its opinion in the case. On rehearing en banc, the Ninth Circuit should hold that the UNCLOS claim is not cognizable under the ATS because the content of UNCLOS is not as definite as the norms recognized in 1789.

Even under a broad interpretation of Sosa, most principles in international environmental agreements such as sustainable development are simply too vague to be enforceable. Courts should generally reject ATS suits based on general language or principles in MEAs because they do not possess a definite content comparable to those recognized in 1789 and thus fail to meet the Sosa standard. International courts and arbitration procedures are better suited to addressing transboundary pollution issues than American courts. Following Sosa, courts in ATS suits should usually recognize only serious human rights abuses such as torture as comparable to those recognized in 1789.

Alien Tort Statute, multinational environmental agreement , the United Nations Convention on the Law of the Sea

Abstract:
Many issues, especially potential environmental catastrophes caused by climate change, affect not just the living, but also future generations. The bias in our political system against addressing the interests of future generations poses serious obstacles in solving long-term environmental problems such as global warming. Because future generations cannot vote, unelected federal judges are more suited to protect their interests than the political branches.

An important question is whether anyone has standing to sue on behalf of future generations in the federal courts. The Supreme Court's Article III standing test requires plaintiffs to demonstrate that they have personally suffered an injury that is actual and imminent, and not merely conjectural or hypothetical. For non-governmental plaintiffs, there is arguably conflicting law regarding whether and when probabilistic risks justify standing, especially where a plaintiff seek a substantive remedy. For uncertain risks that have a probability of less than fifty percent of occurring during the plaintiff's lifetime, a court might deny standing because the risks are too uncertain.

In Massachusetts v. EPA, 127 S. Ct. 1438 (2007), the Supreme Court held that Massachusetts had standing to challenge the EPA's refusal to regulate carbon dioxide because states are entitled to more lenient standing criteria than ordinary citizens. The Court considered evidence from computer models that climate change through the year 2100 would result in ever rising sea levels and damage to Massachusetts coastline. It is unclear whether an ordinary citizen could raise a claim involving global warming because the harm is generalized and probabilistic.

Despite the actual and imminent requirement limitation of suits on behalf of future generations, Massachusetts supports the protection of future generations in some circumstances. Under the parens patriae doctrine, states have a quasi-sovereign interest in protecting the health and safety interests of their citizens. There is a good argument that states have a quasi-sovereign interest in not just their current citizens but also their future citizens. Furthermore, the modern public trust doctrine and several state laws recognize that states have a duty to protect natural resources for future generations. Because both federal and state law recognizes the important role of states in protecting natural resources for future generations, federal courts should apply a liberal approach to standing issues when states bring parens patriae or public trust suits to protect those resources for the state's future citizens.

This is the first article to consider whether Massachusetts supports standing rights for future generations. It builds upon and goes beyond my forthcoming article in the WILLIAM & MARY LAW REVIEW examining the impacts of Massachusetts on standing doctrine. Bradford C. Mank, Should States Have Greater Standing Rights Than Ordinary Citizens?: Massachusetts v. EPA's New Standing Test for States, WILLIAM & MARY L. REV. (Forthcoming 2008).

standing, future generations

Abstract:
In 2001, the Supreme Court in SWANCC v. U.S. Army Corps of Engineers held that the Corps lacked authority under the 1972 Clean Water Act to regulate wetlands isolated from navigable waters. The Court held that the CWA's jurisdiction is limited to non-navigable waters that have a significant nexus to navigable waters. SWANCC did not address the Corps' regulation of wetlands near non-navigable tributaries. The courts of appeals are divided over if the Corps may regulate tributary wetlands. Mank, The Murky Future of the Clean Water Act After SWANCC, 30 ECOLOGY LAW QUARTERLY 811-891 (2003).

In 2006, the Supreme Court in United States v. Rapanos addressed the question of jurisdiction over tributary wetlands. The Court fractured into a four to one to four blocs, although a majority of five agreed to vacate and remand the two cases. Justice Scalia wrote a plurality opinion that would have sharply restricted CWA jurisdiction to only those waters that are relatively permanent, standing or continuously flowing or to wetlands that have a physical surface water connection to these waters. The plurality opinion relied heavily on dictionary definitions, but ignored scientific evidence about the importance of intermittent waters. The plurality harshly criticizes the expense of Corps regulations without giving any weight to the value of the wetland resources they protect. Justice Stevens in his dissenting opinion would have upheld the Corps' broad jurisdiction over tributary wetlands because of their ecological significance and in deference to the Corps' 30-year-old regulations. The dissent failed, however, to acknowledge SWANCC's underlying philosophy that a connection to navigable waters still has some importance in defining the Act's jurisdiction.

The key opinion was Justice Kennedy's lone opinion concurring in the judgment. He concluded that the CWA's jurisdiction reached waters and wetlands with a significant nexus to actually navigable waters. Justice Kennedy had to remain true to SWANCC's underlying principle that the Act is limited to waters that have some meaningful connection to navigable waters, but he took the broad view that ecological connections may be significant, not just actual hydrological connections. His choice of the significant nexus language as the basis for his new jurisdictional test is reasonable because commentators and several lower courts had recognized that it provided the best test for applying the Court's precedent in Riverside Bayview and SWANCC to cases involving tributary wetlands. Justice Kennedy appropriately took a middle position that was closer to the purposivist dissenting opinion than the textualist plurality opinion.

There is disagreement about which opinions in Rapanos are binding on lower courts. Some argue the holding is where the plurality opinion and Justice Kennedy agree and that lower courts may not consider the dissenting opinion. Others argue lower courts may consider the numerous points upon which the dissenting opinion and Justice Kennedy's opinion form a five vote majority. The Department of Justice (DOJ) agrees with Justice Stevens' dissent that the government should have jurisdiction over wetlands if the wetlands at issue meet either the plurality's test or Justice Kennedy's significant nexus standard. This article argues that at least six circuits will follow Justice Kennedy's significant nexus standard, although the Fifth Circuit is likely to adopt an approach closer to Justice Scalia's test.

The Corps and EPA (the agencies) have promised to issue new joint guidance in the near future to address the scope of the Act in the wake of Rapanos, but it is unclear whether the agencies will issue detailed regulations in this area. After SWANCC, the agencies tried to develop new regulations, but were unable to reach consensus. Because of strong public pressure, the agencies will likely produce new guidance addressing Rapanos. Under the significant nexus test, the agencies will likely retain jurisdiction over most, but not all, tributary wetlands. It is less likely that Congress will be able to achieve sufficient consensus to pass legislation defining the Act's jurisdiction.

Wetlands, Clean Water Act, Significant Nexus, Marks Test

Abstract:
In both its 1995 decision United States v. Lopez and in its 2000 decision United States v. Morrison, the Supreme Court had adopted a narrow economic interpretation of congressional authority to regulate intrastate activities under the Commerce Clause. In 2005, however, the Court in Gonzales v. Raich limited the scope of Lopez and Morrison by allowing Congress greater latitude to regulate intrastate activities under the Commerce Clause if they are regulated as part of a comprehensive statutory scheme that on the whole appropriately regulates interstate commerce; an issue which the Lopez and Morrison decisions had not addressed. Justice Stevens' majority opinion stated that even the Lopez decision had recognized the ability of Congress to regulate non-economic, intrastate activities if their regulation was necessary to effectuate regulation of interstate commerce.

Not joining the majority opinion in Raich, Justice Scalia wrote an interesting and potentially influential concurring opinion that relied on the Constitution's Necessary and Proper Clause to justify regulation of medical marijuana under the Commerce Clause. His opinion was somewhat surprising because he had joined the Court's majority opinions in Lopez and Morrison. Neither of those cases, however, had invoked or discussed the Necessary and Proper Clause. In some respects, his approach potentially allows Congress broader latitude to regulate non-economic, intrastate activities than the majority opinion. Justice Scalia's emphasis on the Necessary and Proper Clause's role in implementing Congress' authority under the Commerce Clause could be especially helpful in defending Congress' authority to enact comprehensive statutes to regulate intrastate environmental harms that do not directly affect interstate commerce, but indirectly affect the environment in ways that in the aggregate substantially affect interstate commerce.

In four separate cases, the District of Columbia, Fourth and Fifth Circuits have struggled with deciding whether Congress may still protect endangered and threatened species under the Commerce Clause after Lopez, Morrison or SWANCC. In each case, the court in the end concluded that Congress did have the authority to protect endangered species under the Commerce Clause, including small isolated intrastate species that have little commercial value, although there were dissenting opinions in each case. Because of Lopez and Morrison's failure to provide an adequate framework for analyzing Congress' authority under the Commerce Clause, the four decisions applied different and sometimes clearly contradictory rationales to justify regulation of endangered species under the Commerce Clause. Two of these courts aggregated or considered all endangered and threatened species in determining that they have a substantial impact on interstate commerce and in concluding that the ESA is constitutional under the Commerce Clause, but the Supreme Court has never validated that approach.

Both Raich and Justice Scalia's Raich concurring opinion with its emphasis on the Necessary and Proper Clause offer a way around many of the difficulties resulting from Lopez and Morrison's failure to define the line between economic and non-economic activities under the Commerce Clause. By emphasizing the authority of Congress to regulate non-economic, intrastate activities as part of a comprehensive scheme of regulation, Raich's reasoning implies that Congress has authority under the Commerce Clause to regulate endangered species. Under the Commerce Clause in conjunction with the Necessary and Proper Clause, Congress may protect all endangered species, including intrastate species or those with no direct commercial value in interstate commerce, because the ESA's comprehensive scheme is necessary to preserve interdependent species and ecosystems that do have significant impacts on interstate commerce. Furthermore, because the statute regulates only endangered and threatened species, leaves all other species to state regulation, and promotes concurrent federal-state regulation of wildlife, the ESA's regulation of interstate is cabined by the type of limiting principles that Justice Scalia applied in his Raich concurrence, and, therefore, the ESA is consistent with the Constitution's federalist values.

Endangered Species Act, Commerce Clause, Evironmental Act

Abstract:
This Article proposes that any individual has standing to challenge government action that exposes her to an increased lifetime risk of 1 in 1 million or greater of death or serious injury. Because most regulation involves statistical probabilities of harm, a plaintiff challenging a government regulatory action or inaction as insufficiently protective cannot demonstrate that he or she would likely be harmed by the allegedly inadequate regulation, but merely that a different regulation might reduce the probability of future harm. The beneficiaries of a suit seeking better government regulation are, therefore, statistical persons rather than identifiable persons. By contrast, standing law is largely based on the assumption that only identifiable persons with specific injuries can sue in Article III federal courts, although some decisions have explicitly or implicitly allowed statistical standing based on a probability of future injury. In Natural Res. Def. Council v. EPA (NRDC), the District of Columbia Circuit recognized standing in a case involving probabilistic future risk where there was evidence demonstrating that two to four members of the NRDC's nearly half a million members would develop skin cancer during their lifetimes as a result of an EPA's rule. Professor Elliott has recently argued that the NRDC decision has the troubling implication that large public interest organizations have greater standing rights than small organizations or individuals because it is statistically more likely that one of their members would be harmed by a government regulation that is allegedly insufficiently protective of public safety. Under the Article's proposed 1 in 1 million standard, an individual or a member of a small association would have the same rights as a large organization. The proposed test would reduce the inconsistencies in how different judges or judicial circuits apply today's vague standing test. Congress could overrule this prudential judge-made standard and impose a different standard in a statute whenever it chose to do so. My recent articles on standing include: (1) Should States Have Greater Standing Rights Than Ordinary Citizens?: Massachusetts v. EPA's New Standing Test for States, 49 William & Mary L. Rev. 1701 (2008); (2) Standing and Future Generations: Does Massachusetts v. EPA Open Standing for the Unborn?, Columbia J. Envtl. L. (forthcoming 2009).

Abstract:
On September 26, 2006, the Supreme Court granted certiorari in United Haulers Association Inc. v. Oneida-Herkimer Solid Waste Management Authority to decide the important issue of whether local governments may require that all waste in their jurisdiction be sent to a publicly-owned waste facility and thereby discriminate equally against both local and out-of-state private firms. The dormant Commerce Clause doctrine (DCCD) grants federal courts authority to invalidate state/local laws that discriminate against foreign goods/firms. The Court has adopted an overly broad per se test that invalidates any local law that theoretically discriminates against foreign firms, even if there is no evidence that the law has actual discriminatory effects and even if the law discriminates similarly against most in-state firms. In 1994, the Supreme Court in C&A Carbone v. Town of Clarkstown held that a local government "flow control" ordinance requiring that all solid waste in its jurisdiction be sent to a single privately operated transfer station constituted per se discrimination against out-of-state businesses that sought to haul or dispose of that waste and therefore violated the DCCD, even though the only challenger to the law was a local business. The Court did not directly address whether a state or local government could enact a similar flow control scheme if the government itself owned the waste facility. In 2006, the Second and Sixth Circuits spilt over whether municipalities or states may enact "flow control" ordinances that force waste haulers within their political jurisdiction to send all waste to government facilities, prohibit the export of waste to out-of-state disposal sites, but discriminate equally against both in-state and foreign private firms. In United Haulers II, the Second Circuit held that a flow control ordinance requiring all solid waste be sent to county-owned processing sites does not discriminate against foreign firms because private in-state businesses are equally excluded. The Second Circuit held under the Pike balancing test that the benefits of the public flow control scheme outweighed the burdens of its complete prohibition on export of waste to other states. In National Solid Waste Management Association v. Daviess County, Kentucky, the Sixth Circuit, held that public facilities are subject to the same non-discrimination analysis used in Carbone and specifically rejected the Second Circuit's reasoning in its earlier United Haulers I decision. The Sixth Circuit argued that the majority opinion in Carbone had rejected any distinction between publicly and private owned landfills, but instead focused on whether a "flow control" ordinance discriminated against foreign firms by either preventing out-of-state firms from participating or hoarding waste so that it could not be sent to other states. In light of the clear split between the Second and Sixth Circuits, it is not surprising that the Supreme Court granted certiorari to resolve the issue of whether public waste facilities are different.

In deciding United Haulers, the Supreme Court should re-think Carbone's overly broad definition of discrimination. The Court is unlikely to radically change its approach to the DCCD. Based on its precedent, the Court is likely to continue to use both the per se test and the Pike test. A first step toward change would be for the Court to adopt the United Haulers decisions' presumptive use of the Pike test where public facilities have an effective monopoly, but are non-discriminatory in how they treat local and out-of-state private firms. The United Haulers decisions offer a first step in curbing the Supreme Court's overuse of the per se test and reformulating the Pike test to make it more workable. Whenever a law does not discriminate between local and foreign private firms, the Court should apply the more deferential Pike review standard, not the per se standard, to determine if the law imposes more than incidental burdens on interstate commerce and whether the law's benefits significantly outweigh any burdens to foreign interests. Additionally, going beyond the analysis in the United Haulers decisions, the Court should examine whether the law is purposefully protectionist. Furthermore, when the burdens of local ordinances fall much more heavily on local customers or taxpayers rather than out-of-state interests, the Court should not apply a per se discrimination test and should instead establish a rebuttable presumption that the law is valid under the Pike test. Without overruling Carbone, the Supreme Court in United Haulers could give more flexibility to local governments where a law does not favor local private firms at the expense of out-of-state firms by using a combination of three tests: first, the Pike test as it was applied in the United Haulers decisions; second, a purposefully protectionist standard; and, third, a local burdens test. In deciding United Haulers, the Supreme Court will hopefully adopt a pragmatic approach that is more sensitive to the needs of local governments struggling with serious waste issues. The Supreme Court should affirm the Second Circuit's decision in United Haulers II.

Dormant Commerce Clause, Environmental Law, Public Waste Facilities, Flow Control Ordinances

Abstract:
In a unique decision, the Fifth Circuit in National Solid Waste Management Ass'n v. Pine Belt Regional Solid Waste Management Authority (NSWMA) used the prudential zone of interests standing test to bar the plaintiffs, who met constitutional standing requirements, from filing a facial, per se challenge under the dormant Commerce Clause. Six Mississippi counties and cities that are members of the Pine Belt Regional Solid Waste Management Authority (the Authority) had enacted flow control ordinances that required all solid waste collected in their six jurisdictions be sent to the Authority's facilities, and, thus, prohibited the export of waste to alternative, cheaper in-state or out-of-state sites. Under the dormant Commerce Clause, the Supreme Court had invalidated as facially discriminatory a similar flow control ordinance requiring all local waste be processed by a government-approved processor. This Article will demonstrate that applying the murky zone of interests standing test to the ill-defined dormant Commerce Clause doctrine is counterproductive. In general, courts should require Commerce Clause plaintiffs and most other constitutional litigants to show only that they have constitutional standing without the additional hurdle of meeting the zone of interests standing test. Following the spirit of Clarke v. Securities Industry Ass'n, courts should recognize that intrastate waste carriers harmed by a discriminatory ordinance that discriminates against both intrastate and interstate commerce are usually reliable plaintiffs that may raise dormant Commerce Clause challenges. If it abolishes the zone of interests test for constitutional cases, the Court's Article III standing requirements are sufficiently restrictive to prevent frivolous constitutional suits, and courts could still apply other prudential limitations to standing.

Commerce Clause, Article III

Abstract:
Recently, the federal circuit courts of appeal have divided in addressing to what extent either Title VI of the Civil Rights Act of 1964 or Title IX of the Education Amendments of 1972 protects those who complain about racial or gender discrimination from retaliation by their employers or schools. Neither Title VI nor Title IX explicitly prohibits retaliation by recipients. However, various federal agencies have issued specific Title VI or IX regulations that explicitly prohibit retaliation by recipients. Title IX "was modeled after Title VI . . ., which is parallel to Title IX except that it prohibits race discrimination, not sex discrimination, and applies in all programs receiving federal funds, not only in education programs." Because of the similarities between these two statutes, federal courts have often examined them together when interpreting the meaning of each.

In 2003, in Peters v. Jenney, the Fourth Circuit held that Title VI's prohibition against racial discrimination includes a right of action against "retaliation." In light of the Supreme Court's holding in Alexander v. Sandoval that Congress intended Title VI to prohibit only intentional discrimination, the Peters decision recognized a private cause of action only for those who allege that a recipient retaliated against them for complaining about intentional discrimination. Any person who is the victim of retaliation may file suit, not just minorities who are the victims of discrimination.

By contrast, in Jackson v. Birmingham Board of Educ., the Eleventh Circuit in 2002 rejected any private right of action against retaliation because the text of Section 901 of Title IX does not explicitly provide for such a private cause of action for retaliation. Assuming arguendo that a private right of action existed to sue recipients for retaliation, the Eleventh Circuit observed that it would limit any such right to plaintiffs who are the victims of gender discrimination and would not allow those who merely allege that others have suffered gender discrimination, such as the male plaintiff in that case, to pursue a retaliation claim. The Jackson court followed dicta in Sandoval suggesting that only express statutory language may establish a private right of action. However, to the extent that the Sandoval decision suggested in dicta that rights of action must be express, its reasoning is contrary to the Court's prior precedent and its own reasoning. The Sandoval decision itself acknowledged that "regulations applying Section 601's ban on intentional discrimination are covered by the cause of action to enforce that section." The Supreme Court granted certiorari in Jackson and the case was argued before the Court on November 30, 2004.

This Article argues that both Title VI and Title IX implicitly authorize plaintiffs to file retaliation claims against recipients of federal funds. Since its 1969 decision in Sullivan v. Little Hunting Park, Inc., the Supreme Court has consistently recognized retaliation claims as vindicating the central anti-discrimination principles of comparable civil rights statutes, and, therefore, such suits are permissible even after Sandoval. Retaliation claims are rooted in both Title VI and Title IX's central purpose of prohibiting intentional discrimination. Additionally, following the Chevron doctrine, the Fourth Circuit in Peters appropriately deferred to agency regulations interpreting Title VI and Title IX to prohibit retaliation. Although holding that Title VI regulations could not authorize a private right of action to enforce regulations prohibiting disparate impacts, the Sandoval Court recognized that these agency regulations were effective to the extent they vindicated Title VI's core prohibition against intentional discrimination. Thus, courts may conclude that Title VI and IX implicitly allow plaintiffs to bring retaliation claims if their employer or school retaliates against them for complaining about intentional racial or gender discrimination because such suits are strongly consistent with the statutes's primary purpose of prohibiting recipients from engaging in intentional discrimination.

Environmental Law, Title VI, Title IX, Private Right of Action

Abstract:
Section 112 of the Clean Air Act requires the EPA to establish national emission standards for hazardous air pollutants. It regulates sources, such as factories and power plants, that emit listed air toxics. The EPA is required to issue emissions standards based on the maximum available control technology (MACT) for each category of major sources of air toxics. The article focuses on the scope of the EPA's authority to delist categories or subcategories of sources, especially those emitting carcinogens, from the MACT standard.

In its plywood and composite wood industries (PCWP) rule, the EPA contended that it has the authority to exempt a subcategory of low-risk sources releasing carcinogenic chemicals because it assumed that Congress had made a drafting error in subsection 112(c)(9)(B)(i) by using only the term category but not the term subcategory. This argument for the PCWP sources could be expanded to many other industrial MACT categories, potentially exempting thousands of other sources. In rare cases, courts have recognized the doctrine of scrivener's error to correct obvious errors in a statute, but there is a heavy burden on an agency to demonstrate that a statute contains a scrivener's error. The article concludes that the EPA's creation of a low-risk subcategory of PCWP sources is improper because the plain language of the statute's subsection limits the Agency's delisting authority to whole categories of carcinogenic sources.

Environmental Law, EPA

Abstract:
In 2002, the Supreme Court in Gonzaga University v. Doe held that the nondisclosure provisions of the Family Educational Rights and Privacy Act (FERPA) did not establish an individual right enforceable through 42 U.S.C. §1983. Chief Justice Rehnquist's requirement of clear and unambiguous proof that Congress intended to establish an individual right on behalf of a class including the plaintiff placed an additional burden on plaintiffs by effectively demanding proof that Congress would have wanted thousands of private suits. The requirement eroded the Court's precedent emphasizing the presumptive enforcement of federal statutory rights through §1983. This Article will focus on the impact of Gonzaga in future §1983 cases rather than on whether the Court was correct in its holding. Two specific proposals are presented. First, the Court should consider legislative history in determining congressional intent to establish individual rights. Second, consistent with the Court's decision in Wright v. City of Roanoke Redevelopment & Housing Authority, the Court should consider agency regulations in defining the scope of a right as long as there is sufficient evidence that Congress intended to establish an individual right. By considering evidence in a statute's legislative history and administrative regulations defining the scope of statutory rights, lower courts are more likely to find Congress's intent than through a textualist approach, which is likely to underestimate those instances where Congress really intends to establish an individual right.

Individual rights, regulations, legislative history, congressional intent, 1983

Abstract:
In its 2007 decision United Haulers Association, Inc. v. Oneida-Herkimer Solid Waste Management Authority, the Supreme Court for the first time held that the ‘dormant’ Commerce Clause doctrine (DCCD) allows for a distinction between appropriate laws establishing local government monopolies that provide public services such as waste disposal as opposed to inappropriate laws favoring the self interest of in-state private businesses over out-of-state competition. In addition, the Court emphasized that courts should apply the DCCD more leniently in the area of waste disposal because it is a traditional local government function. In its 2008 decision Department of Revenue of Kentucky v. Davis, the Court reaffirmed United Haulers’ distinction between laws preferring government activities that serve the public interest and laws that favor local private firms at the expense of other private firms, but clarified to what extent it matters whether a government function is traditional or nontraditional. This article argues that there are compelling reasons to treat public entities differently from private entities, but that courts should be wary of focusing on whether a government function is traditional or nontraditional. Instead, courts should focus on whether a challenged local law fulfills a legitimate public purpose or instead favors local private firms at the expense of out-of-state firms.

Abstract:
In Summers v. Earth Island Institute, the Supreme Court recently rejected Justice Breyer’s dissenting opinion’s proposed test for organizational standing based upon the statistical probability that some of an organization’s members will likely be harmed in the near future by a defendant’s allegedly illegal actions. Implicitly, however, the Court had recognized some form of probabilistic standing in Friends of the Earth v. Laidlaw, which found standing where plaintiffs avoid recreational activities because of “reasonable concerns” about future health injuries from pollution; Summers did not overrule Laidlaw. There is an inherent tension between the Summers and Laidlaw decisions. This Article applies the Summers and Laidlaw frameworks to the facts in Natural Resources Defense Council v. EPA (NRDC II), where the D.C. Circuit found standing because the government’s exemption from regulation of certain uses of methyl bromide, an ozone destroying chemical, would causes 2 to 4 lifetime skin cancer cases among the NRDC’s members. Both Summers and Laidlaw produce questionable results when applied to NRDC II’s facts.

The “realistic threat” test in Justice Breyer’s dissenting opinion in Summers offers a better approach to standing than either Summers’ unrealistic demand that plaintiffs precisely predict the future or Laidlaw’s focus on whether a plaintiff avoided recreational activities rather than whether the defendant’s activities caused actual harm. There was a more realistic threat of harm in Summers than Laidlaw, but the Court found standing in the latter case but not the former case. The Court’s current approach to standing for organizational plaintiffs and probabilistic risks is seriously flawed and the realistic threat test offers a more rational approach to assess which injuries are sufficiently serious for standing in Article III federal courts. Furthermore, a realistic threat test for standing is more consistent with congressional intent in enacting several citizen suit statutes that are involved in the vast majority of cases in which constitutional standing is at issue. In light of NRDC II, the Court should abandon both the Summers and Laidlaw approaches to standing and instead adopt Justice Breyer’s proposed “realistic threat” test to achieve reach more equitable and uniform standing determinations.

Abstract:
In 2001, the Supreme Court decided Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC). In this five-to-four decision, the Court held that the U.S. Army Corps of Engineers (Corps) lacked the authority under the Federal Water Pollution Control Act (FWPCA) to regulate isolated intrastate wetlands and waters that serve as habitat for migratory birds. The Court found the FWPCA's jurisdiction is limited to navigable waters and non-navigable waters that have a significant nexus to navigable waters, such as wetlands adjacent to navigable waters. However, the Court did not clearly define which adjacent wetlands and tributaries are within the scope of the FWPCA, generating considerable uncertainty about the FWPCA's jurisdiction. Some courts and commentators read SWANCC broadly to limit the FWPCA's application to only navigable waters and non-navigable wetlands and tributaries that immediately abut navigable waters. Other courts read SWANCC narrowly to mean that the FWPCA does not reach isolated, non-navigable waters that have no connection to navigable waters, but that its jurisdiction does reach inland waters or wetlands that have any hydrological or ecological connection to navigable waters. This Article proposes an intermediate position that requires that non-navigable waters contribute more than a mere hydrological connection or drop of water to navigable water to come within the FWPCA's jurisdiction, but also rejects the view that adjacent wetlands and tributaries must directly abut navigable waters to constitute waters of the United States. The Article concludes that courts should interpret the Act to include any non-navigable waters, wetlands, or tributaries that possess a significant hydrological nexus with navigable waters.

Environmental law, clean water, wetlands, navigable waters

Abstract:
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 an individually enforceable right, however, the Third, Fourth, and Eleventh Circuits have held that an agency regulation cannot create an individual federal right enforceable through Section 1983. Most recently, in 2003, the Ninth Circuit in Save Our Valley v. Sound Transit held that valid agency regulations alone could not establish individual rights enforceable through Section 1983 because only Congress may establish enforceable rights through statutes, although one judge disagreed in a partial dissent. By contrast, during 2003, the First Circuit in Rolland v. Romney acknowledged that regulations by themselves could not establish enforceable rights, but the court concluded that an agency's regulations interpreting a statutory right could clarify a right so that it is sufficiently definite to be enforceable through a Section 1983 suit.

In Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., the Supreme Court in 1984 stated that courts should give significant deference to agency regulations that provide a reasonable interpretation of an ambiguous statute or fill a "gap" in a silent statute, at least in those cases in which Congress has delegated to the agency the authority to issue regulations that "carry the force of law." In 2001, in Alexander v. Sandoval, the Court concluded that a private right of action must be based on rights established in the statute and may not arise from regulations alone, declaring "Language in a regulation may invoke a private right of action that Congress through statutory text created, but it may not create a right that Congress has not." The Court suggested that regulations alone may not establish individual rights, observing "it is most certainly incorrect to say that language in a regulation can conjure up a private cause of action that has not been authorized by Congress. Agencies may play the sorcerer's apprentice but not the sorcerer himself." Although declining to apply Chevron deference in that case because the disparate impact regulations were broader than the statute's ban on intentional discrimination, Justice Scalia acknowledged in Sandoval that "regulations, if valid and reasonable, authoritatively construe the statute itself." In 2002, in Gonzaga Univ. v. Doe, the Court concluded that individual rights enforceable through Section 1983 are similar to implied rights of action because courts are required to "determine whether Congress intended to create a federal right." Because the Court held in Sandoval that only Congress can create implied rights of action, the Gonzaga decision suggests that only Congress can create rights enforceable through Section 1983 and that regulations alone may not. The Gonzaga decision did not directly resolve, however, whether and to what extent regulations may interpret rights implicit in a statute.

Although acknowledging that special care is required in evaluating the authority of agency regulations purporting to establish individual rights, this Article argues that courts should defer to agency regulations that clarify or further define individual rights reasonably implicit in a statute without contradicting the central underlying principle in Sandoval and Gonzaga that Congress alone possesses the legislative authority necessary to create individual rights in a statute. The First Circuit's Romney decision is a good example of a court using agency regulations to clarify the scope of a right that Congress clearly intended to create in a statute, but had appropriately chosen to delegate the details of implementation to an agency. Where Congress mandates or clearly implies that it is delegating to an agency the authority to issue regulations implementing an individual right that Congress intends to create on behalf of a class of individuals then the agency's interpretation of the statutory "rights" contained in its regulations are presumptively enforceable through Section 1983.

Regulation, Chevron, Section 1983

Abstract:
Since global warming potentially affects everyone in the world, does any individual have standing to sue the U.S. EPA or other federal agencies to force them to address climate change issues? Suits addressing global warming raise difficult standing questions because some Supreme Court decisions have stated or implied that courts should not allow standing for plaintiffs who file suits alleging general injuries to the public at large because the political branches of government - Congress and the executive branch - are better equipped to resolve such issues. There is a better argument, however, for courts to recognize standing for plaintiffs who suffer "concrete" mass injuries, including any physical harms that are more likely than not caused by global warming. Under the National Environmental Policy Act of 1969 (NEPA), courts should use a "reasonable possibility" standard to determine whether a federal agency must discuss the possible impact of its actions on global warming. In 2003, the EPA concluded that the Clean Air Act does not give the Agency authority to regulate carbon dioxide, although several states are challenging that conclusion. Even if the EPA cannot regulate carbon dioxide directly, there is a strong argument that the Agency must consider carbon dioxide emissions when new power plants apply for a permit under the new source review process. Under the Administrative Procedure Act and general standing principles, a plaintiff who suffers small, but tangible injuries should have standing under the Clean Air Act.

A concurring opinion in a recent decision involving chemicals that cause global destruction of stratospheric ozone addressed the difficult issue of whether a plaintiff may have standing to sue those who contribute in a small ways to global pollution problems. In Covington v. Jefferson County, the Ninth Circuit held that the plaintiffs had standing to bring citizen suits under the Clean Air Act (CAA) for the local injuries caused by the defendants from improper disposal of ozone destroying chemicals at a landfill. In a concurring opinion, Judge Gould concluded the plaintiffs had standing to sue based on the global impacts on stratospheric ozone resulting from the defendants' mishandling of CFCs. Some courts, especially in taxpayer suits, had suggested that a plaintiff may not assert standing if an alleged injury harms all persons equally, or in other words, "that injury to all is injury to none." On the whole, Judge Gould determined that the Supreme Court's most recent standing cases have allowed a plaintiff to achieve standing resulting from general injury if the injury to the plaintiff is sufficiently concrete. Judge Gould concluded that the risk of skin cancer, cataracts and suppressed immune systems to the plaintiffs was sufficiently concrete to justify Article III standing even though the defendants' only contributed a small amount of harm to a global problem. But global warming suits present more complex issues.

This Article concludes that at least some plaintiffs with concrete injuries, i.e., Alaskan natives, have standing to file global warming suits under either the National Environmental Policy Act of 1969 (NEPA) or the CAA. Today, the strongest case for standing by climate change plaintiffs is under NEPA. There is currently a split in the circuits regarding the test for standing under NEPA. Building upon precedent in the Ninth and Tenth Circuits, this Article proposes a liberal approach to standing in NEPA cases that could allow at least some plaintiffs to raise global warming issues under the statute.

Under the CAA, no decision has yet directly addressed whether plaintiffs have standing to raise climate change issues. In deciding whether a plaintiff has standing under the CAA to sue concerning global warming, a crucial issue is whether the EPA has the authority to regulate GHGs under the CAA. During the Clinton Administration, two different EPA general counsels concluded EPA had some authority to regulate Carbon dioxide under the CAA even if the United States did not ratify the Kyoto Protocol. In 2003, however, the Bush Administration EPA concluded that the Agency has no authority to regulate carbon dioxide or other GHGs. Several states are challenging the EPA's refusal to regulate GHGs. If this suit is successful, there would be a stronger basis for concluding that there is standing in climate change cases.

Even if it does not have direct authority to regulate carbon dioxide, the EPA may have indirect authority under CAA's "new source review" (NSR) process for approving permits for new power plants to consider unregulated pollutants, i.e., carbon dioxide, in determining what is the best available control technology. This article will argue that at least some plaintiffs would have standing to argue that the EPA must consider technology that would reduce unregulated pollutants such as CO2.

Environmental Law, Global Warming

Abstract:
In Spring 2003, both the 5th Circuit and the D.C. Circuit agreed that Congress has the authority under the Commerce Clause to protect intrastate endangered species on private lands under the Endangered Species Act (ESA), but used completely opposite reasoning to reach the same result. The 5th Circuit in GDF Realty v. Norton rejected the government's argument that the economic impact of the commercial development regulated under the statute was the appropriate focus for whether the statute has a substantial effect on interstate commerce. Instead, the 5th Circuit concluded that intrastate spiders and beetles, which have no economic value, do have substantial impacts on interstate commerce when their impacts are aggregated with the impacts of all other protected species, and that aggregation of all endangered species is appropriate because of the "interdependence of all species." However, in Rancho Viejo v. Norton, the D.C. Circuit adopted the reasoning that the 5th Circuit had explicitly rejected, concluding that the "regulated activity is Rancho Viejo's planned commercial development, not the arroyo toad that it threatens." On July 22, 2003, the D.C. Circuit by a 7-to-2 vote denied Viejo's request for a rehearing en banc. In separate dissenting opinions, Judges Sentelle and Roberts each cited GDF in arguing that Viejo was inconsistent with recent Supreme Court Commerce Clause decisions (Lopez & Morrison) by inappropriately focusing on the commercial development rather than on the toad.

While Lopez and Morrison do not directly answer whether GDF or Viejo provide a better Commerce Clause analysis, Viejo's commercial activities approach is arguably both over and under-inclusive. It is potentially over-inclusive because the government arguably could regulate any indirect non-economic activities of a large commercial enterprise even if the non-economic activities have nothing to do with interstate commerce. On the other hand, Viejo's commercial activities approach is arguably under-inclusive because the government could regulate large construction projects or businesses, but not hikers, off-road vehicles or perhaps individual homeowners even though in the aggregate they could cause significant harm to many species.

GDF's approach of aggregating all endangered species regardless of their commercial value might seem questionable in light of Lopez and Morrison's emphasis that the Commerce Clause is generally limited to regulating activities that have significant economic impacts on interstate commerce. However, there is a rational basis for Congress's assumption in the ESA that it is necessary to preserve all endangered species because there is a strong interdependency among all species and ecosystems that the loss of any endangered species must be avoided to prevent harm to interstate commerce. Thus, the GDF court correctly concluded that protecting commercially insignificant endangered species is an essential component of a larger regulatory scheme that is valid under the Commerce Clause.

Environment Law, Endangered Species Act

Abstract:
In the Lopez and Morrison decisions, the Supreme Court for the first time in sixty years found federal statutes exceeded the scope of the Commerce Clause. Both decisions were especially concerned with federal statutes that impinged on areas of traditional state authority such as criminal law. During 2001, in Solid Waste Agency of Northern Cook County v. United States Army Corps of Engineers (SWANCC), while not directly addressing the scope of the Commerce Clause, the Court's narrow interpretation of the Clean Water Act to exclude regulation of intrastate isolated wetlands reflected its concern that the Corps' broader interpretation would "alter[] the federal-state framework by permitting federal encroachment upon a traditional state power."

The Endangered Species Act is likely to raise concerns under a narrow interpretation of the Commerce Clause because the statute regulates numerous intrastate species that have little commercial value and affects individual landowners. This Article contends that, even after Lopez, Morrison, and SWANCC, the Commerce Clause reaches federal regulation of intrastate endangered or threatened species because conservation of such species has traditionally been more a federal than a state function. Additionally, federal regulation of endangered or threatened species does not undermine states' traditional role in regulating non-threatened species. Finally, the preservation of endangered or threatened species serves long-range national economic interests in preserving biodiversity and potentially valuable genetic material that deserve deference from courts even though their exact value is unknowable at the present. Applying a rational basis test, courts should defer to Congress' goal of preserving our genetic and biological heritage as a reasonable policy substantially advancing America's long-term commercial goals. In light of their concurring opinion in Lopez and support for protection of endangered species on private lands in Babbitt v. Sweet Home, the Article suggests that Justices O'Connor and Kennedy are key swing votes who may take a more deferential approach to federal regulation of intrastate endangered species under the Commerce Clause.

Abstract:
In proving a case of adverse disparate impact discrimination under Tile VI of the 1964 Civil Rights Act, a plaintiff in its prima facie case must show a significant disparity between an affected population and an appropriate comparison population. Both government agencies and commentators have neglected to address the crucial issue of how to select and define a comparison population. Title VII cases require that a comparison population should be "similarly situated" to the affected population. In 2000, the EPA issued draft Title VI guidance addressing this issue, but the Agency failed to address how to select a "similarly situated" comparison population. On the one hand, it is inappropriate to automatically use a state or county's general population for comparison because such a population is not necessarily "similarly situated" to the affected population. On the other hand, business commentators have proposed an overly restrictive test requiring that both the affected area and comparison population contains very similar nd uses. For example, business commentators suggest it would be inappropriate in many cases to compare a poor, urban area with an affluent suburban area.

This Article proposes that a comparison population is similarly situated with an affected population if the comparison area meets the minimum relevant requirements for the proposed facility. This test is consistent with Title VII cases requiring that comparisons be made between "qualified" workers in the same relevant job market. The proposed test would allow comparisons between poor, heavily minority areas and affluent suburban areas as long as the facility could be sited in either area.

Abstract:
Many states have adopted voluntary action programs to encourage developers to clean up and redevelop brownfields, former industrial or commercial facilities that have some environmental contamination. While brownfields redevelopment often has important benefits, states often allow cleanups that are less stringent than would otherwise be required and that raises the possibility that redevelopment could pose health risks to neighboring residents. Because many brownfield sites are located in areas with significant minority populastions, there is the potential for disproportionate impacts against these groups. If disparate impacts occur, states are arguably liable under Title VI of the 1964 Civil Rights Act. The Article proposes several procedures to reduce the likelihood of disparate impacts. First, states should require developers to collect data about the racial demographics and relative burden of pollution in areas surrounding the proposed brownfield site. Additionally, states should require developers to mitigate any impacts and consider alternative sites that pose less risk or discriminatory potential. Even if some disparate impacts against minorities were likely, developers could attempt to justify their projects. Finally, states should encourage early and meaningful public participation in the approval of brownfield proposals.

Abstract:
This article explores when Section 1983 suits may be used to enforce agency regulations, and especially Title VI's disparate impact regulations. If a court finds that a federal statute creates a distinct "right" and that the plaintiff is an intended beneficiary of that right, there is a presumption that the right is enforceable under section 1983. The burden is then on the defendant to show that Congress expressly prohibited a suit under section 1983 or implicitly did so by enacting a comprehensive remedial scheme that is incompatible with a section 1983 suit. Furthermore, courts have recognized that a valid section 1983 cause of action may exist even where there is no private right of action under the same statutory provision. The federal circuits have split regarding whether agency regulations by themselves may create "rights" that are enforceable though section 1983 suits or may only "define" statutory rights that are enforceable under section 1983. Even in circuits that do not allow regulations alone to serve as the basis of a section 1983 suit, there is a reasonable argument that section 602 regulations merely assist to define the anti-discrimination right that Congress intended to create in Title VI, and, therefore, that the disparate impact standards in those regulations are enforceable under section 1983. Furthermore Title VI and its administrative enforcement scheme are not incompatible with section 1983 actions. Because there are different tests for enforcing a statutory right under section 1983 than through a private right of action, arguably a Section 1983 suit could be used to enforce Title VI's disparate impact regulations even if courts reject an implied private right of action to enforce those same regulations. A section 1983 suit could supplement a Title VI action by allowing suits against state officials in their individual capacities and permitting plaintiffs to raise constitutional claims that may offer additional remedies beyond those limited remedies established in Title VI's administrative regulations.

Abstract:
In Guardians Ass'n v. Civil Service Commission, 463 U.S. 582 (1983), The Supreme Court recognized a private right of action under Section 601 of Title VI if a plaintiff proves intentional
discrimination by a recipient of federal funds. The Court also held that federal funding agencies may promulgate regulations under Section 602 of Title VI that prohibit recipients from actions that promote disparate impact discrimination. In Chester Residents Concerned for Quality Living v. Seif, 132 F.3d 925 (3d Cir. 1997), the Third Circuit held that Section 602 implies a private right of action to enforce agency regulations prohibiting disparate impact discrimination by recipients of federal funds. The Supreme Court granted certiorari to decide this issue, but later vacated the case as moot because the Commonwealth of Pennsylvania revoked the disputed permit after it had expired and the permit applicant abandoned the proposed project.

Nevertheless, in light of the increasing number of "environmental justice" claims alleging that state environmental agencies receiving federal funding have taken actions that cause disparate impact discrimination that violates EPA's Title VI regulations, it is likely that the Supreme Court will have to address whether a private right of action exists under Section 602 to enforce agency implementing regulations. In recent years, the Supreme Court has placed an increasingly heavy burden on plaintiffs to demonstrate that the original enacting Congress intended to create a private right, or a subsequent Congress explicitly amended the statute to do so. There is insufficient evidence in Title VI's legislative history or amendments to support a private right under the Supreme Court's current test for implying private rights of action. However, there is a reasonable argument that courts should apply the more lenient test used in Guardians and Cannon v. University of Chicago, 441 U.S. 677 (1979), inferring a private right of action under Title IX, in determining whether a private right of action exists under Section 602 because it would inconsistent to apply a more stringent test for inferring a private right under Section 602 than under Section 601.