Fukushima Whodunit
In a remarkable and significant new report, Japanese experts have concluded that the Fukushima nuclear accident was a “man”-made disaster – phrased this way perhaps in a gallant effort to allow all women to distance themselves from the decision making process. This dramatic conclusion prompts yet another question: If “man” isn’t responsible, then who is? Was it a dolphin conspiracy, perhaps? Or some nefarious abalone alliance? Can the decision to construct a ...
CONTINUE READINGFat City USA
This graphic from the Economist shows the amount of excess biomass due to obesity and overall population. As the chart shows, obese North Americans are carrying around an extra 263 million kilograms of fat -- or just about 290 thousand tons of fat. That's a daunting thought. That's a pattern that definitely isn't going to be replicable globally. The article's conclusion is stark: If the populations of other countries adopted the pattern of weight distribution foun...
CONTINUE READINGIs Duke Energy Playing the Regulation Game?
Just a few hours prior to the July Fourth holiday, the New York Times reported that Duke Energy Corporation announced a $32 billion merger with Progress Energy, creating the nation's largest utility. It will serve more than 7 million customers throughout the southeast and midwest. Okay. But buried in the story was this nugget: In the conference call, company executives said that one advantage of the combined company was that 85 percent of its business would be tra...
CONTINUE READINGDid the Founding Fathers Believe in a Strong Federal Government? You Betcha.
If there's one thing that we know about the Founding Fathers, it's that they didn't want a weak national government. But there was a group who wanted a weak national government. They were called the anti-Federalists, and they were appalled by the proposed Constitution. These believers in small-government fought tooth-and-nail against adoption of the Constitution. They lost. If the supporters of the Constitution had wanted a government "small enough to drown in a...
CONTINUE READINGDoes Any Pollutant Mean ANY Pollutant?
It got less attention than it should because it was upstaged by the Supreme Court's healthcare decision, but last week's D.C. Circuit ruling on climate change was almost as important in its own way. By upholding EPA's regulations, the court validated the federal government's main effort to control greenhouse gases. To the extent that the case got public attention, it was because the court affirmed EPA's finding that greenhouse gases endanger human health and welfare....
CONTINUE READINGThe Chief Justice’s “Switch in Time” — Practically Huge But Legally Minimalist
"The switch in time that saved nine" is how one wag described a key vote change by a Justice during the New Deal. The "saved nine" part may or may not apply, but Chief Justice Roberts obviously switched his vote in the healthcare case. I can't remember a case in which the opinions made this so obvious. He also wrote an opinion that is designed to have as few legal repercussions as possible. There's been a lot of speculation about a possible Roberts flip, based i...
CONTINUE READINGWhy Did Mono Lake Become a Cause Celebre?
Why did saving Mono Lake become such a potent political issue during the late 1970's and early 1980's? For a book I am currently writing on the case, that is a critical question. After all, hundreds of groups -- hundreds of environmental groups -- seek media oxygen for their cases all the time. Both nationwide and particularly in California, Mono Lake stood out: more than deforestation, or desertification, or the expansion of national parks, or urban stormwater run...
CONTINUE READINGConditional Spending and the Clean Air Act
Ann suggests that Chief Justice Roberts' opinion today in Sebelius might open up the Clean Air Act to new challenges. That seems right, but it also seems to me that there are two key differences between Medicaid and the CAA/Highway Spending nexus. 1) Medicaid is an entitlement program; in other words, federal money flows more or less automatically. It does not require Congress to appropriate money annually. Thus, it may make sense in the Medicaid context to ...
CONTINUE READINGAnother (Mostly) Uninformed Post About the Health Care Cases and Environmental Law
I've only skimmed the opinion (National Federation of Independent Businesses v. Sebelius) but so far don't think the Court's holding that the health care law's individual mandate violates the Commerce Clause will have any real effect on environmental law. The Court's decision is concerned with whether Congress can require someone previously unengaged in commerce -- the individual who refuses to buy health insurance -- to engage in commerce through requiring the purchase ...
CONTINUE READINGThe Health Care Cases: Instant Uninformed Reaction!!
1) Wow. On the specific issue here, I'll take it. 2) Environmental lawyers will need to look at this decision very carefully. From an initial very quick parsing, it appears as if Chief Justice Roberts' opinion has cut back the scope of Commerce Clause authority and under the Necessary and Proper Clause as well as limiting the ability of the Federal Government to condition federal spending to states' action. All of these provisions very directly concern the sco...
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