Pub Date : 1900-01-01DOI: 10.36640/mjeal.11.1.interstate
Cedar Hobbs
Current Supreme Court personal jurisdiction analysis does not clearly support a finding of personal jurisdiction for out of state polluters in an interstate toxic tort. Still, some courts, including the Ninth Circuit, have attempted to find personal jurisdiction in these cases, but in doing so have employed tenuous analysis that can result in inconsistent case law. This Note argues that there is a better analytical framework which reemphasizes the role played by territorial borders in personal jurisdictional analysis. Through employing this framework, courts can find personal jurisdiction in interstate toxic torts while also preserving analytically consistent case law.
{"title":"Interstate Pollution and the Quandary of Personal Jurisdiction","authors":"Cedar Hobbs","doi":"10.36640/mjeal.11.1.interstate","DOIUrl":"https://doi.org/10.36640/mjeal.11.1.interstate","url":null,"abstract":"Current Supreme Court personal jurisdiction analysis does not clearly support a finding of personal jurisdiction for out of state polluters in an interstate toxic tort. Still, some courts, including the Ninth Circuit, have attempted to find personal jurisdiction in these cases, but in doing so have employed tenuous analysis that can result in inconsistent case law. This Note argues that there is a better analytical framework which reemphasizes the role played by territorial borders in personal jurisdictional analysis. Through employing this framework, courts can find personal jurisdiction in interstate toxic torts while also preserving analytically consistent case law.","PeriodicalId":302203,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115829642","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.36640/mjeal.11.2.significant
Sydney Hofferth
The increased severity of the impacts of climate change demand a re-evaluation of the legal tools that could combat it. The National Environmental Policy Act (“NEPA”) was passed to force government agencies to account for the environmental impacts of their actions. However, as it exists today, NEPA fails to require agencies to consider how their actions will mitigate or exacerbate climate change. This Note argues that agencies should be required to consider the social cost of the greenhouse gases associated with potential major actions at various stages of NEPA analysis. This change would result in increased transparency and public engagement in the NEPA review process, furthering the original goals of the Act and hopefully resulting in more environmentally-friendly government actions in the future.
{"title":"Significant Impacts Under NEPA: The Social Cost of Greenhouse Gases as a Tool to Mitigate Climate Change","authors":"Sydney Hofferth","doi":"10.36640/mjeal.11.2.significant","DOIUrl":"https://doi.org/10.36640/mjeal.11.2.significant","url":null,"abstract":"The increased severity of the impacts of climate change demand a re-evaluation of the legal tools that could combat it. The National Environmental Policy Act (“NEPA”) was passed to force government agencies to account for the environmental impacts of their actions. However, as it exists today, NEPA fails to require agencies to consider how their actions will mitigate or exacerbate climate change. This Note argues that agencies should be required to consider the social cost of the greenhouse gases associated with potential major actions at various stages of NEPA analysis. This change would result in increased transparency and public engagement in the NEPA review process, furthering the original goals of the Act and hopefully resulting in more environmentally-friendly government actions in the future.","PeriodicalId":302203,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"124 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121443159","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.36640/mjeal.10.2.structured
Alejandro E. Camacho, Robert L. Glicksman
The Trump Administration’s response to the COVID-19 pandemic is a stark reminder that poorly designed government can be a matter of life and death. This article explains how the Administration’s careless and delayed response to the crisis was made immeasurably worse by its confused and confusing reallocation of authority to perform or supervise tasks essential to reducing the virus’s ravages. After exploring the rationale for and impact of prior federal reorganizations responding to public health crises, the article shows how a combination of unnecessary and unhelpful overlapping authority and a thoughtless mix of centralized and decentralized authority contributed to the Trump Administration’s slow and ineffective effort to stem the virus’s tide. Furthermore, the Administration’s earlier dismantling of the structure built in the wake of prior outbreaks disabled a mechanism crucial to any federal response to public health threats—its ability to coordinate the efforts of public and private actions to effectively combat the crisis. The article identifies numerous valuable lessons about government organization from the COVID-19 experience that should guide policymakers’ deliberations in the likely event that they embark upon an effort to address the mistakes plaguing the Trump Administration’s dismal response. More generally, it uses the government’s response to COVID-19 to explore a number of insights about how to better think about and configure government institutions to prepare for and manage complex social problems like a pandemic.
{"title":"Structured to Fail: Lessons from the Trump Administration’s Faulty Pandemic Planning and Response","authors":"Alejandro E. Camacho, Robert L. Glicksman","doi":"10.36640/mjeal.10.2.structured","DOIUrl":"https://doi.org/10.36640/mjeal.10.2.structured","url":null,"abstract":"The Trump Administration’s response to the COVID-19 pandemic is a stark reminder that poorly designed government can be a matter of life and death. This article explains how the Administration’s careless and delayed response to the crisis was made immeasurably worse by its confused and confusing reallocation of authority to perform or supervise tasks essential to reducing the virus’s ravages.\u0000\u0000After exploring the rationale for and impact of prior federal reorganizations responding to public health crises, the article shows how a combination of unnecessary and unhelpful overlapping authority and a thoughtless mix of centralized and decentralized authority contributed to the Trump Administration’s slow and ineffective effort to stem the virus’s tide. Furthermore, the Administration’s earlier dismantling of the structure built in the wake of prior outbreaks disabled a mechanism crucial to any federal response to public health threats—its ability to coordinate the efforts of public and private actions to effectively combat the crisis.\u0000\u0000The article identifies numerous valuable lessons about government organization from the COVID-19 experience that should guide policymakers’ deliberations in the likely event that they embark upon an effort to address the mistakes plaguing the Trump Administration’s dismal response. More generally, it uses the government’s response to COVID-19 to explore a number of insights about how to better think about and configure government institutions to prepare for and manage complex social problems like a pandemic.","PeriodicalId":302203,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"379 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131785977","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.36640/mjeal.12.1.taxing
James Daher
Coastal overdevelopment in the United States is a persistent issue. Climate change continues to increase the risk of flooding and other damage from natural disasters facing many coastal communities. Yet, development in some of the most at-risk areas has not slowed. Policies at the federal government level have encouraged such development by shifting costs of flood-related property damage from the property owner to taxpayers. At the same time, government actors at all levels are actively trying to protect their coastlines through coastal resilience projects. However, there are not enough funds to protect coastal property, especially at the state and local levels. Thus, coastal development continues to put more and more private investment at risk with no hope of governmental protection. This note proposes a risk-based tax on coastal development to counter incentives to overdevelop coastline while raising revenue for resilience projects. By utilizing a risk-based tax, the government that levies the tax can charge the property owner for the risk that has been shifted to the federal government through programs such as the National Flood Insurance Program. Further, a tax is preferable because it would be easier to administrate than other methods of slowing coastal development, like direct regulation. Finally, this note concludes that such a tax would encounter the fewest administrative and legal roadblocks if implemented at the state level.
{"title":"Taxing Risky Development: A New Tool for Increasing Coastal Resilience","authors":"James Daher","doi":"10.36640/mjeal.12.1.taxing","DOIUrl":"https://doi.org/10.36640/mjeal.12.1.taxing","url":null,"abstract":"Coastal overdevelopment in the United States is a persistent issue. Climate change continues to increase the risk of flooding and other damage from natural disasters facing many coastal communities. Yet, development in some of the most at-risk areas has not slowed. Policies at the federal government level have encouraged such development by shifting costs of flood-related property damage from the property owner to taxpayers. At the same time, government actors at all levels are actively trying to protect their coastlines through coastal resilience projects. However, there are not enough funds to protect coastal property, especially at the state and local levels. Thus, coastal development continues to put more and more private investment at risk with no hope of governmental protection.\u0000\u0000This note proposes a risk-based tax on coastal development to counter incentives to overdevelop coastline while raising revenue for resilience projects. By utilizing a risk-based tax, the government that levies the tax can charge the property owner for the risk that has been shifted to the federal government through programs such as the National Flood Insurance Program. Further, a tax is preferable because it would be easier to administrate than other methods of slowing coastal development, like direct regulation. Finally, this note concludes that such a tax would encounter the fewest administrative and legal roadblocks if implemented at the state level.","PeriodicalId":302203,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129941833","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.36640/mjeal.11.1.protecting
A. Rockett
In an era of political gridlock, a potential revitalization of the nondelegation doctrine threatens the Environmental Protection Agency’s existing framework for regulating greenhouse gas emissions and addressing the urgent threat of climate change. At its apex, the nondelegation doctrine briefly constrained permissible delegations from the legislature to the executive branch after two Supreme Court decisions in 1935. The doctrine has since weakened under the lenient “intelligible principle” standard. That standard today allows the legislative branch to make broad delegations to administrative arms of the executive branch, which then use technological and bureaucratic expertise to clarify, implement, and enforce statutes. The result is today’s administrative state—the federal government’s answer to the demanding complexities of modern society, the expansive duties of the federal government, and intense political gridlock in the legislature. However, with multiple Supreme Court Justices indicating support for reviving a stricter form of the nondelegation doctrine, many key, broad agency delegations are under threat, including the Clean Air Act’s delegation to the Environmental Protection Agency requiring regulation of greenhouse gas emissions. The urgency of the fight against climate change, combined with the political difficulty in passing new legislation, necessitates careful consideration of what revived nondelegation doctrine may require of legislative tasks assigned to the executive. In this note, I analyze the potential threat and its solutions and conclude that a revived nondelegation doctrine poses a substantial threat to the Clean Air Act’s delegation to the EPA. For this reason, intricate constitutional arguments and carefully crafted legislation may both be necessary to preserve the EPA’s ability to regulate greenhouse gas emissions.
{"title":"Protecting Climate Change Law from a Revived Nondelegation Doctrine","authors":"A. Rockett","doi":"10.36640/mjeal.11.1.protecting","DOIUrl":"https://doi.org/10.36640/mjeal.11.1.protecting","url":null,"abstract":"In an era of political gridlock, a potential revitalization of the nondelegation doctrine threatens the Environmental Protection Agency’s existing framework for regulating greenhouse gas emissions and addressing the urgent threat of climate change. At its apex, the nondelegation doctrine briefly constrained permissible delegations from the legislature to the executive branch after two Supreme Court decisions in 1935. The doctrine has since weakened under the lenient “intelligible principle” standard. That standard today allows the legislative branch to make broad delegations to administrative arms of the executive branch, which then use technological and bureaucratic expertise to clarify, implement, and enforce statutes. The result is today’s administrative state—the federal government’s answer to the demanding complexities of modern society, the expansive duties of the federal government, and intense political gridlock in the legislature. However, with multiple Supreme Court Justices indicating support for reviving a stricter form of the nondelegation doctrine, many key, broad agency delegations are under threat, including the Clean Air Act’s delegation to the Environmental Protection Agency requiring regulation of greenhouse gas emissions. The urgency of the fight against climate change, combined with the political difficulty in passing new legislation, necessitates careful consideration of what revived nondelegation doctrine may require of legislative tasks assigned to the executive. In this note, I analyze the potential threat and its solutions and conclude that a revived nondelegation doctrine poses a substantial threat to the Clean Air Act’s delegation to the EPA. For this reason, intricate constitutional arguments and carefully crafted legislation may both be necessary to preserve the EPA’s ability to regulate greenhouse gas emissions.","PeriodicalId":302203,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"55 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122056764","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Environmental impact assessments serve as a necessary tool for attaining the goals of the Aarhus Convention and the EIA Directive (2011/92). The Aarhus Convention and EIA Directive aim to guarantee the public’s right to participate in environmental decision-making, to be provided information necessary to effectively participate, and to have access to a procedure to challenge a decision. The ECJ’s recent case IL v. Land Nordrhein-Westfalen articulates the current interpretation of the European Union Member States’ obligations under the EIA Directive to provide individuals standing to challenge impact assessment decisions. This opinion reaffirmed that in cases where the procedural defect did not affect the outcome of the project’s authorization decision, Member States may restrict standing only to individuals’ claims based on procedural defects where it prevented their participation in the entire decision-making process. Drawing from Advocate General Hogan’s opinion in IL v. Land Nordrhein-Westfalen, this paper advocates for designating the procedural guarantees themselves as substantive individual rights. The existing EIA Directive and Aarhus Convention procedural rights are rendered ineffective if the information required to be disseminated in environmental impact statements is not provided. Lacking this information and blocked from challenging these decisions in court, individuals cannot be informed participants, cannot access a review procedure, and cannot fully execute their rights under EU law. If unchanged in light of this rights designation, current Member State laws may violate the Charter of Fundamental Rights of the European Union, the Treaty on the Functioning of the European Union, and general principles of Community law.
环境影响评估是实现《奥胡斯公约》和环境影响评估指令(2011/92)目标的必要工具。《奥胡斯公约》和《环境影响评估指令》旨在保障公众参与环境决策的权利，为公众提供有效参与所需的信息，并有机会对决定提出质疑。欧洲法院最近的IL诉Land north drhein- westfalen案阐明了欧盟成员国在环境影响评估指令下的义务，即为个人提供挑战影响评估决定的立场。该意见重申，在程序缺陷不影响项目授权决定结果的情况下，会员国可将诉讼时效限制为个人基于程序缺陷提出的索赔，而程序缺陷妨碍了他们参与整个决策过程。本文借鉴司法部长Hogan在IL v. Land Nordrhein-Westfalen一案中的意见，主张将程序性保障本身指定为实质性的个人权利。如果没有提供环境影响报告中需要传播的信息，现有的环评指令和《奥胡斯公约》的程序性权利就会失效。由于缺乏这些信息，并且无法在法庭上挑战这些决定，个人无法成为知情参与者，无法进入审查程序，也无法充分行使欧盟法律赋予他们的权利。如果根据这一权利的指定而保持不变，现行成员国的法律可能违反《欧洲联盟基本权利宪章》、《欧洲联盟运作条约》和共同体法律的一般原则。
{"title":"EIA Directive Procedural Guarantees as Substantive Individual Rights in IL v. Land Nordrhein-Westfalen","authors":"Alexis Haddock","doi":"10.36640/mjeal.10.2.eia","DOIUrl":"https://doi.org/10.36640/mjeal.10.2.eia","url":null,"abstract":"Environmental impact assessments serve as a necessary tool for attaining the goals of the Aarhus Convention and the EIA Directive (2011/92). The Aarhus Convention and EIA Directive aim to guarantee the public’s right to participate in environmental decision-making, to be provided information necessary to effectively participate, and to have access to a procedure to challenge a decision. The ECJ’s recent case IL v. Land Nordrhein-Westfalen articulates the current interpretation of the European Union Member States’ obligations under the EIA Directive to provide individuals standing to challenge impact assessment decisions. This opinion reaffirmed that in cases where the procedural defect did not affect the outcome of the project’s authorization decision, Member States may restrict standing only to individuals’ claims based on procedural defects where it prevented their participation in the entire decision-making process. Drawing from Advocate General Hogan’s opinion in IL v. Land Nordrhein-Westfalen, this paper advocates for designating the procedural guarantees themselves as substantive individual rights. The existing EIA Directive and Aarhus Convention procedural rights are rendered ineffective if the information required to be disseminated in environmental impact statements is not provided. Lacking this information and blocked from challenging these decisions in court, individuals cannot be informed participants, cannot access a review procedure, and cannot fully execute their rights under EU law. If unchanged in light of this rights designation, current Member State laws may violate the Charter of Fundamental Rights of the European Union, the Treaty on the Functioning of the European Union, and general principles of Community law.","PeriodicalId":302203,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"21 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123426361","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.36640/mjeal.10.2.adding
Z. Singer
In the half century and more since Justice Jackson’s famous concurrence in Youngstown Sheet & Tube Co. v. Sawyer, the fog surrounding acceptable executive power in national security and foreign affairs has only thickened. Today, whether presidents are responding to the challenges of an amorphous global war on terrorism or a global pandemic, they act against a backdrop of ambiguous constitutional and statutory authorization and shifting precedent. While Justice Jackson outlined zones of presidential power by tying that power to congressional acts, the Court subsequently watered down the test by looking to other factors, like legislative intent. At other times, the Court appeared to jettison the Youngstown zones for uncertain statutory analyses. Responding to the changing precedent, some scholars and practitioners called for deference for executive actions in national security and beyond. Others called for using the same statutory tools as in any other case. A compromise is available. For courts seeking to remain faithful to Youngstown while recognizing calls for executive deference, I argue that they should look toward recent administrative law precedents. There, courts confront challenges similar to those in the national security and foreign affairs realms—unclear statutes and regulations, an inability to legislate with specificity, and political actors with more subject-matter expertise than the judiciary. The two-part test outlined in Kisor v. Wilkie, which focuses on whether a regulation is ambiguous and whether the character and context of the agency’s actions warrant deference, is the available compromise. The Kisor test would not only infuse clarity into Justice Jackson’s tripartite system, but would foster improved incentives for the political branches, such as encouraging the executive to utilize internal and external processes deserving of deference, while also serving as a measured restraint on the judiciary.
自从杰克逊大法官在扬斯敦Sheet & Tube Co.诉索耶案中达成著名的共识以来，半个多世纪以来，围绕在国家安全和外交事务中可接受的行政权力的迷雾只增不增。今天，无论总统是在应对一场无定形的全球反恐战争还是全球流行病的挑战，他们的行动都是在宪法和法律授权含糊不清、先例不断变化的背景下进行的。虽然杰克逊大法官通过将总统权力与国会法案联系起来，概述了总统权力的范围，但最高法院随后通过考虑立法意图等其他因素，淡化了这种检验。在其他时候，法院似乎为了不确定的法律分析而抛弃了扬斯敦地区。针对不断变化的先例，一些学者和实践者呼吁在国家安全和其他领域尊重行政行为。其他人则要求使用与其他案件相同的法定工具。妥协是可行的。对于寻求忠实于扬斯敦的法院，同时承认行政服从的呼声，我认为他们应该参考最近的行政法先例。在那里，法院面临着与国家安全和外交事务领域类似的挑战——不明确的法规和条例，无法具体立法，以及政治行为者比司法机构更有专业知识。在Kisor v. Wilkie中概述的两部分测试是可用的折衷方案，该测试侧重于监管是否含糊不清，以及机构行为的性质和背景是否值得尊重。Kisor测试不仅将为杰克逊法官的三权分立体系注入清晰的信息，而且还将促进对政治部门的改进激励，例如鼓励行政部门利用值得尊重的内部和外部程序，同时也将对司法部门起到适度的约束作用。
{"title":"Adding Bite to the Zone of Twilight: Applying Kisor to Revitalize the Youngstown Tripartite","authors":"Z. Singer","doi":"10.36640/mjeal.10.2.adding","DOIUrl":"https://doi.org/10.36640/mjeal.10.2.adding","url":null,"abstract":"In the half century and more since Justice Jackson’s famous concurrence in Youngstown Sheet & Tube Co. v. Sawyer, the fog surrounding acceptable executive power in national security and foreign affairs has only thickened. Today, whether presidents are responding to the challenges of an amorphous global war on terrorism or a global pandemic, they act against a backdrop of ambiguous constitutional and statutory authorization and shifting precedent. While Justice Jackson outlined zones of presidential power by tying that power to congressional acts, the Court subsequently watered down the test by looking to other factors, like legislative intent. At other times, the Court appeared to jettison the Youngstown zones for uncertain statutory analyses. Responding to the changing precedent, some scholars and practitioners called for deference for executive actions in national security and beyond. Others called for using the same statutory tools as in any other case.\u0000\u0000A compromise is available. For courts seeking to remain faithful to Youngstown while recognizing calls for executive deference, I argue that they should look toward recent administrative law precedents. There, courts confront challenges similar to those in the national security and foreign affairs realms—unclear statutes and regulations, an inability to legislate with specificity, and political actors with more subject-matter expertise than the judiciary. The two-part test outlined in Kisor v. Wilkie, which focuses on whether a regulation is ambiguous and whether the character and context of the agency’s actions warrant deference, is the available compromise. The Kisor test would not only infuse clarity into Justice Jackson’s tripartite system, but would foster improved incentives for the political branches, such as encouraging the executive to utilize internal and external processes deserving of deference, while also serving as a measured restraint on the judiciary.","PeriodicalId":302203,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122177655","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.36640/mjeal.11.2.removing
Ben Carroll
In 1935, Congress enacted the Federal Power Act. The Act split jurisdiction over electricity generation and distribution between the Federal and state governments. The Act delegated to the Federal government jurisdiction over interstate wholesales and interstate transmission. The Act gave state governments jurisdiction over intrastate wholesales, intrastate transmission, generation, local distribution, and retail sales. Big, vertically-integrated monopoly utilities dominated the market before and for 60 years after the passage of the Act. However, over time, changes in technology and policy in the wholesale market eroded the dominance of those vertically-integrated monopoly utilities and complicated this jurisdictional bright line. In 2011, the Federal Energy Regulatory Commission (FERC) issued Order 745, requiring wholesale markets to permit demand response to operate on equal footing to traditional sources of generation. Unlike typical electricity generation, demand response involves paying consumers for a commitment not to consume electricity at a certain time. The Supreme Court sustained that Order in the 2016 case FERC v. Electric Power Supply Association. The Order allowed states to opt out of FERC’s demand response rules. This Note advocates for the removal of that state opt-out, analyzes its likely success against court challenges, and explores the possible limits of FERC jurisdiction after the 2020 case National Association of Regulatory Utility Commissioners v. FERC. If demand response reaches its full potential, it could provide as much electricity as hundreds of peak power plants. Removing the opt-out and integrating all possible demand response resources into the wholesale market is particularly timely and important given its potential to alleviate the economic and human toll from widespread blackouts such as the February 2021 Texas power system failure.
{"title":"Removing the State Opt-Out for Demand Response","authors":"Ben Carroll","doi":"10.36640/mjeal.11.2.removing","DOIUrl":"https://doi.org/10.36640/mjeal.11.2.removing","url":null,"abstract":"In 1935, Congress enacted the Federal Power Act. The Act split jurisdiction over electricity generation and distribution between the Federal and state governments. The Act delegated to the Federal government jurisdiction over interstate wholesales and interstate transmission. The Act gave state governments jurisdiction over intrastate wholesales, intrastate transmission, generation, local distribution, and retail sales. Big, vertically-integrated monopoly utilities dominated the market before and for 60 years after the passage of the Act. However, over time, changes in technology and policy in the wholesale market eroded the dominance of those vertically-integrated monopoly utilities and complicated this jurisdictional bright line.\u0000\u0000In 2011, the Federal Energy Regulatory Commission (FERC) issued Order 745, requiring wholesale markets to permit demand response to operate on equal footing to traditional sources of generation. Unlike typical electricity generation, demand response involves paying consumers for a commitment not to consume electricity at a certain time. The Supreme Court sustained that Order in the 2016 case FERC v. Electric Power Supply Association. The Order allowed states to opt out of FERC’s demand response rules. This Note advocates for the removal of that state opt-out, analyzes its likely success against court challenges, and explores the possible limits of FERC jurisdiction after the 2020 case National Association of Regulatory Utility Commissioners v. FERC. If demand response reaches its full potential, it could provide as much electricity as hundreds of peak power plants. Removing the opt-out and integrating all possible demand response resources into the wholesale market is particularly timely and important given its potential to alleviate the economic and human toll from widespread blackouts such as the February 2021 Texas power system failure.","PeriodicalId":302203,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"85 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128609242","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.36640/mjeal.11.1.blazing
N. Kagan
Litigation can be a catalyst for legislation. Legislative history can reveal just how influential litigation is. The legislative history of the laws to designate wilderness in the 1980s provides an object lesson. It demonstrates that litigation both pushed Congress to act and shaped the legislation Congress enacted. This is especially true of the watershed year of 1984. That year, Congress enacted more wilderness laws and added more wilderness areas to the National Wilderness Preservation System in more states than in any other year. The legislative history of the 1984 wilderness laws embedded in bills, hearings, committee meetings, committee reports, and floor proceedings, in conjunction with the legislative history of the various wilderness bills and laws considered, rejected, and passed from 1979 through 1983, reveal the significant impact a particular lawsuit had on Congress in 1984 and beyond. Specifically, a lawsuit grounded in the National Environmental Policy Act, taking advantage of a powerful precedent, prompted the preservation of the wilderness character of millions of acres of public land. To be precise: The lawsuit impelled Congress to designate more than 9.171 million acres in twenty-three states as wilderness from 1984 through 1989. Of that number, more than 7.335 million acres are managed by the U.S. Department of Agriculture through the Forest Service; more than 1.835 million acres are managed by the U.S. Department of the Interior through the Bureau of Land Management and the National Park Service. This article uses legislative history to demonstrate how a strategic lawsuit sparked congressional action. It traces the litigation engendered by the Forest Service’s decision regarding roadless areas in national forests and the evolution of Congress’s response to that litigation, from the first lawsuit filed in 1979 to the last filed in 1983. In the process, it shows how legislative history can illuminate the underlying causes and policy choices that lead to legislation.
{"title":"Blazing a Path to Wilderness: A Case Study of Impact Litigation Through the Lens of Legislative History","authors":"N. Kagan","doi":"10.36640/mjeal.11.1.blazing","DOIUrl":"https://doi.org/10.36640/mjeal.11.1.blazing","url":null,"abstract":"Litigation can be a catalyst for legislation. Legislative history can reveal just how influential litigation is. The legislative history of the laws to designate wilderness in the 1980s provides an object lesson. It demonstrates that litigation both pushed Congress to act and shaped the legislation Congress enacted. This is especially true of the watershed year of 1984. That year, Congress enacted more wilderness laws and added more wilderness areas to the National Wilderness Preservation System in more states than in any other year. The legislative history of the 1984 wilderness laws embedded in bills, hearings, committee meetings, committee reports, and floor proceedings, in conjunction with the legislative history of the various wilderness bills and laws considered, rejected, and passed from 1979 through 1983, reveal the significant impact a particular lawsuit had on Congress in 1984 and beyond. Specifically, a lawsuit grounded in the National Environmental Policy Act, taking advantage of a powerful precedent, prompted the preservation of the wilderness character of millions of acres of public land. To be precise: The lawsuit impelled Congress to designate more than 9.171 million acres in twenty-three states as wilderness from 1984 through 1989. Of that number, more than 7.335 million acres are managed by the U.S. Department of Agriculture through the Forest Service; more than 1.835 million acres are managed by the U.S. Department of the Interior through the Bureau of Land Management and the National Park Service. This article uses legislative history to demonstrate how a strategic lawsuit sparked congressional action. It traces the litigation engendered by the Forest Service’s decision regarding roadless areas in national forests and the evolution of Congress’s response to that litigation, from the first lawsuit filed in 1979 to the last filed in 1983. In the process, it shows how legislative history can illuminate the underlying causes and policy choices that lead to legislation.","PeriodicalId":302203,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"40 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"116750453","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
Pub Date : 1900-01-01DOI: 10.36640/mjeal.10.2.solution
Keagan Potts
Administrative Agencies often rely on guidance documents to carry out their statutory mandate. Over the past few decades, the Food and Drug Administration (FDA) has been criticized for using soft law guidance documents to exercise powers beyond those authorized by Congress. Since attacks on the use of guidance documents persist and agencies need soft law to respond quickly and flexibly to rapid technological growth, it is essential to develop a solution that preserves this crucial regulatory mechanism and prevents its abuse. The most likely alternative to soft law guidance is formal regulation, which must be developed through the notice-and-comment process. The delays introduced by these formal processes, however, leave innovators uncertain about how to comply in the interim, which slows innovation. Alternatively, agencies may turn toward even less formal mechanisms, which are less expensive. However, these informal mechanisms also present problems, namely vagueness, contradictory rulings, and regulatory accumulation. This Note focuses on how courts can curb the abuse of guidance documents and avoid the pitfalls associated with these two alternatives. This Note identifies the ends of FDA regulation, the various mechanisms the FDA uses to achieve these ends, and the Agency’s and regulated entities’ attitudes toward guidance documents. Courts may either treat notice-and-comment rulemaking as necessary to finality and refuse merits review or classify such documents as final and conduct a merits review. This Note endorses the latter solution because it helps courts preserve agency discretion, principally limits discretion, and incentivizes uniformity and predictability. This solution is limited to documents that are practically binding on the agency.
{"title":"A Solution to the Hard Problem of Soft Law","authors":"Keagan Potts","doi":"10.36640/mjeal.10.2.solution","DOIUrl":"https://doi.org/10.36640/mjeal.10.2.solution","url":null,"abstract":"Administrative Agencies often rely on guidance documents to carry out their statutory mandate. Over the past few decades, the Food and Drug Administration (FDA) has been criticized for using soft law guidance documents to exercise powers beyond those authorized by Congress. Since attacks on the use of guidance documents persist and agencies need soft law to respond quickly and flexibly to rapid technological growth, it is essential to develop a solution that preserves this crucial regulatory mechanism and prevents its abuse. The most likely alternative to soft law guidance is formal regulation, which must be developed through the notice-and-comment process. The delays introduced by these formal processes, however, leave innovators uncertain about how to comply in the interim, which slows innovation. Alternatively, agencies may turn toward even less formal mechanisms, which are less expensive. However, these informal mechanisms also present problems, namely vagueness, contradictory rulings, and regulatory accumulation. This Note focuses on how courts can curb the abuse of guidance documents and avoid the pitfalls associated with these two alternatives.\u0000\u0000This Note identifies the ends of FDA regulation, the various mechanisms the FDA uses to achieve these ends, and the Agency’s and regulated entities’ attitudes toward guidance documents. Courts may either treat notice-and-comment rulemaking as necessary to finality and refuse merits review or classify such documents as final and conduct a merits review. This Note endorses the latter solution because it helps courts preserve agency discretion, principally limits discretion, and incentivizes uniformity and predictability. This solution is limited to documents that are practically binding on the agency.","PeriodicalId":302203,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"37 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128418379","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}
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