ENVIRONMENTAL LAW & POLICY eJOURNAL

"Sue and Settle: Demonizing the Environmental Citizen Suit" Free Download
Seattle University Law Review, Vol. 37, No. 891, 2014

STEPHEN M. JOHNSON, Mercer University Law School
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The federal environmental statutes include many provisions that require agencies to issue regulations or take actions by a specific date. When agencies fail to meet those deadlines, the statutes authorize citizens to sue the agencies to force the agencies to take the actions required by law. When the agencies are sued, they frequently settle the lawsuits and agree to take the actions required by law within a new time frame that is agreeable to the challengers and the agencies. In the spring of 2013, industry groups and States began a concerted lobbying effort to oppose citizen enforcement of the federal environmental laws. The United States Chamber of Commerce and lobbyists for States created a catch phrase - “sue and settle? - to demonize citizen enforcement and to criticize the federal government for settling lawsuits brought by citizens groups.

In a 2013 report, the Chamber alleged that the federal government, by settling lawsuits brought by citizens groups, was colluding with those groups and excluding other affected parties in order to reallocate the agencies’ priorities and obligations. Congress has also taken an interest in this issue. In the last two sessions of Congress, legislators have introduced a “Sunshine for Regulatory Decrees and Settlements Act? that would broaden intervention in lawsuits involving federal agencies, establish cumbersome settlement procedures, create a more formal notice and comment process for settlements, require agencies to provide more explanation of, and justification for, settlements, and change the rules for judicial supervision and review of settlements.

Although the lawsuits cited by critics as “sue and settle? lawsuits rarely involve the negotiation of substantive changes to final rules, the reforms suggested by the Chamber and Congress are much more severe than the reforms suggested by academics decades ago to address “rulemaking settlements? between agencies and industries that addressed substantive changes. The federal environmental laws establish a central role for citizens in enforcement of the laws and citizens will continue to sue EPA and other federal agencies when the agencies fail to meet statutory deadlines or carry out their duties under the laws, regardless of whether Congress adopts the reforms suggested by the Chamber or included in the legislative proposals. Those reforms will simply make settlement of citizen suits much more difficult, resulting in a longer litigation process, which will impose higher costs on the government. In addition, since the cases are, for the most part, clear losers for the agencies, longer litigation will lead to higher awards of attorneys fees. More significantly, the longer litigation will delay the inevitable agency action and all of its environmental and other benefits for many years. To the extent that reforms are necessary, this article proposes much more modest reforms.

"Environmental Law after Sebelius: Will the Court's New Spending Power Limits Affect Environmental State-Federal Partnerships?" Free Download

ERIN RYAN, Lewis & Clark Law School
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This issue brief, invited by the American Constitution Society, analyzes the regulatory impacts of the new spending power doctrine in the Supreme Court’s 2012 health reform decision, National Federation of Independent Business v. Sebelius.

In Sebelius, a plurality of the Supreme Court held that portions of the Affordable Care Act exceeded federal authority under the Spending Clause. With that holding, Sebelius became the first Supreme Court decision since the New Deal to limit an act of Congress on spending power grounds, rounding out the “New Federalism? limits on federal power first initiated by the Rehnquist Court in the 1990s.

The new Sebelius doctrine constrains the federal spending power in contexts involving changes to ongoing intergovernmental partnerships with very large federal grants. However, the decision gives little direction for evaluating when the amount of change or funding reaches the threshold of spending power coercion. Sebelius thus leaves open important unanswered questions about the contours of the new limit and how it will impact intergovernmental bargaining.

This issue brief analyzes the new spending power doctrine and its impact on spending power-based programs of cooperative federalism in environmental law, with special attention to the Clean Air Act. It became the basis for a more expansive law review article, The Spending Power and Environmental Law After Sebelius, 85 Colo. L. Rev. 1003 (2014), which is also available here http://ssrn.com/abstract= 2378675.

"The Maryland Environmental Policy Act: Resurrecting a Tool for Environmental Protection" Free Download

RUSSELL STEVENSON, Georgetown Law School
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In 1973 the Maryland General Assembly enacted the Maryland Environmental Policy Act (“MEPA?), one of the many state analogues of the National Environmental Policy Act. Unlike its federal cousin, however, MEPA as enacted requires a formal analysis of the environmental effects of a proposed action only when an agency makes a request for legislative action. As a consequence, MEPA has had virtually no effect in achieving the lofty goals that it purports to serve, and it has been entirely ignored since the early 1980’s. Nevertheless, the statutory language of MEPA contains several broad directives regarding the obligations of state agencies to take environmental considerations into account in decision-making and policy formulation. This Article re-examines the statute with a view to suggesting how it might be resurrected and put to use in service of protecting the environment in Maryland.

"Turning the World Upside Down: How Frames of Reference Shape Environmental Law" Free Download
Environmental Law, Vol. 44, No. 1, 2014

JAMES SALZMAN, Duke University - School of Law
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MARTIN DOYLE, Duke University
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Models and representations help us understand complex phenomena. The Mercator map presents a familiar, two-dimensional view of our three-dimensional world, for example, but it can distort as much as it clarifies. In the natural sciences, too, there are very different ways of framing reality. The classic method developed by Leonard Euler measures a system from a fixed point. A competing method developed by Joseph Louis Lagrange measures from the perspective of a particle moving within the system. These Eulerian and Lagrangian methods of measurement dominate the physical sciences and provide different, though equally valid, measures of how the system operates. This Article explores how our frame of reference shapes our understanding and application of environmental law. Using examples from the Clean Air Act, Clean Water Act, and other statutes, we argue that environmental law is just as sensitive to Eulerian and Lagrangian frames of reference as fluid mechanics or cartography, and that this sensitivity predetermines how we conceive of environmental problems and solutions far more than we realize. Understanding the implicit but fundamental importance of frames of reference can help explain emerging challenges such as water pollution from fracking, air pollution hot spots, and epigenetic sensitivities to pollution.

"Environment and Neoliberalism: A Critical Discourse Analysis of Three Italian Cases (Environnement Et Néolibéralisme: Une Analyse Critique Du Discours De Trois Cas Italiens)" Free Download
COLOMBO, Dario and PORCU, Manuela, Environment and neoliberalism: a critical discourse analysis of three Italian cases, ESSACHESS - Journal for Communication Studies, Vol.7, No 1(13), 2014.

DARIO COLOMBO, University of Genoa
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MANUELA PORCU, Universita di Cagliari - Faculty of Law
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English Abstract: In this paper we will examine the economic integration of environmental discourses using three examples chosen among the three main administrative levels of Italian State: central, regional and municipal. Through the application of Critical Discourse Analysis tools, an interdisciplinary research approach that combines linguistic analysis and social theory, the paper will analyze discursive strategies, interests at stake, use of language and changes of meanings. The selected texts will be interpreted as spaces of representation and social interaction, within an order of discourse dominated by the neoliberal frame.

Italian Abstract: Dans cet article nous examinerons l’intégration économique des discours environnementaux à partir de trois exemples choisis parmi les principaux niveaux administratifs de l’Etat italien : central, régional et municipal. Grâce à l’utilisation des outils de l’analyse critique du discours, approche de recherche interdisciplinaire qui combine l’analyse linguistique et la théorie sociale, l’article se focalisera sur l’analyse des stratégies discursives, des intérêts et des enjeux, de l’utilisation du langage et des changements du sens. Le corpus choisi sera considéré en tant qu’espace de représentation et d’interaction sociale, dans l’ordre du discours dominé par un cadre néolibéral.

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Directors

ENVIRONMENTAL & NATURAL RESOURCES LAW EJOURNALS

BERNARD S. BLACK
Northwestern University - School of Law, Northwestern University - Kellogg School of Management, European Corporate Governance Institute (ECGI)
Email: bblack@northwestern.edu

RONALD J. GILSON
Stanford Law School, Columbia Law School, European Corporate Governance Institute (ECGI)
Email: rgilson@leland.stanford.edu

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