What Do Environmental Law Scholars Write About?
Some of our readers who aren't in law schools probably wonder what environmental law professors actually do. (Some of our readers who are in law schools might be wondering the same thing!). I thought it might be helpful to provide a sample of recent scholarship. Here are recent lists of working papers from SSRN.com, which provides on-line prepublication access to papers. From the Climate Law list: Expediting Innovation: The Quest for a New Sputnik Moment by Sarah...
CONTINUE READINGJohn Muir’s Birthday
If environmentalism had saints John Muir, born on April 21, 1838, would surely be on the list. He is best known for founding the Sierra Club and fighting to save Yosemite....
CONTINUE READINGHome Solar Good for More Than a Guilty Conscience
Despite all of the tax breaks, utility rebates, and net metering potential, the common assumption is that rooftop residential photovoltaics are not economical for many customers. Some people figure that you install a solar system if you want to feel good about yourself, or make a statement about the environment, but you had better expect to lose money. A new study from the Lawrence Berkeley National Laboratory suggests that solar might not be such a bad investment afte...
CONTINUE READINGRemembering Rachel Carson
Earth Day seems an appropriate time to recall past leaders in environmental thought. Few have played a greater role in the development of U.S. environmental law than Rachel Carson (1907-1964), whose books did much to spark the environmental movement. It is good to hear that her books have been reprinted as ebooks by Open Road Media in time for Earth Day, seventy years after she published her first book. I still remember reading The Sea Around Us and Silent Spring whe...
CONTINUE READINGThink Tanks, Advocacy Tanks, and the Kleiman Rule
Dan is absolutely right to distinguish between real think tanks and what I called "fake think tanks" (and what he calls, more generously, "advocacy tanks."). But what we need is some criterion for distinguishing the two: one key move of the modern Conservative Movement has been to dismiss all study as simply being the product of ideology. No wonder that Josh Marshall, in a wonderful piece, described George W. Bush as "The Postmodern President." So how does one jud...
CONTINUE READINGSolicitor General Katyal Flunks Supreme Court History
At least he did at the oral argument in Connecticut v. AEP yesterday: [Lawyer for the state plaintiffs Barbara] Underwood, pressed to cite past court cases that might show this particular lawsuit could work in court, had no close parallels to rely upon. Chief Justice John G. Roberts, Jr., had pressed her to come up with an answer to Solicitor General Katyal’s argument that the Court, in 222 years, “had never heard a case like this before.” Uh -- that's an easy ...
CONTINUE READINGThink Tanks versus Advocacy Tanks
Don't get me wrong. There are real think tanks like RAND or RFF that produce significant reports on environmental policy issues. I always take the conclusions of these experts seriously, because they're very competent and don't have an axe to grind (unless you count being overly attached to economic analysis as a bias.) Then there are places like the Heritage Foundation, American Enterprise Institute, and Cato. Their basic function is to produce advocacy pieces fo...
CONTINUE READINGSaving Public Nuisance
I agree with Rick's take on the oral argument in Connecticut v. AEP -- in fact, so much so that I predicted it three years ago! But if the Supreme Court overturns the Second Circuit on the viability of a federal common law claim, that actually makes the viability of state common law claims stronger. Merely because the Clean Air Act displaces federal common law hardly implies that it pre-empts state common law. Indeed, the absence of a federal common law claim now op...
CONTINUE READINGDamage Control for the States: Predicting the Outcome in AEP v. Connecticut
Yesterday I previewed Tuesday's oral arguments in the U.S. Supreme Court's American Electric Power v. Connecticut case, and two of my Legal Planet colleagues have already posted comments on certain aspects of those arguments. But let me cast discretion to the wind and predict the outcome of the case. Actually, it's not that difficult a prognostication: the plaintiff states, City of New York and private land trusts are going to lose. From their questions and comments dur...
CONTINUE READINGConnecticut v. AEP: The Judicial Power of the Purse
That's not my phrase: it's Jerry Frug's. But it applies here. Rhead reports that in the Connecticut v. AEP argument, Justice Breyer, setting up one of his classic hypotheticals, wanted to know why a judge should not impose a $20-a-ton carbon tax as a judicial remedy. (Answer: because he can’t.) It's not clear to me why Breyer thinks that a judge can't do this. Recall that Connecticut v. AEP is formally a nuisance case. Damages are a standard remedy in nuisance...
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