federalism
Clean Air versus States Rights
A sleeper decision by the D.C. Circuit upholds federal air pollution authority.
The D.C. Circuit’s decision last week in Mississippi Commission on Environmental Quality v. EPA didn’t get a lot of attention, despite having a very significant constitutional ruling. Since the constitutional discussion doesn’t start until about page seventy, after many pages of scintillating discussion of matters like the reliability of private air pollution monitors and the …
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CONTINUE READINGAbalones and Gulls and Judges, Oh My!
Comparing the Mono Lake Committee with the Abalone Alliance
For several months now, I have been looking for a good comparison case to the Mono Lake Committee, whose work is one of the great success stories of the modern environmental movement. Why did the Mono Lake Committee succeed when other organizations failed? Lots of organizations had good causes and dedicated leaders: what made Mono …
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CONTINUE READINGLegislative Tantrums Over EPA’s Proposed Carbon Rule
Politico reports that eight state legislatures have passed bills protesting EPA’s proposed power plant regulation, in at least one case refusing to comply with any eventual regulations. This was a childish tantrum rather than an adult response. The ultimate hope, according to Politico, is that many states will refuse to submit compliance plans, and that this …
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CONTINUE READINGIs Missouri v. Holland in the Court’s crosshairs?
Justices look for limits on Treaty Power in domestic dispute case
The headline environmental cases at the Supreme Court this term are of course about the Clean Air Act, specifically about its application to cross-state pollution (as Dan has explained here) and to greenhouse emissions (as Ann has addressed here and here). But sometimes cases that at first glance seem wholly unrelated to the environment could …
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CONTINUE READINGBagenstos on the Health Care Case: Critical Reading for Environmental Lawyers
Sam Bagenstos at Michigan Law School has long distinguished himself as one of the most thoughtful constitutional doctrinalists in the country (and maybe the best disability scholar as well). He is out with a new article in the Georgetown Law Journal concerning the Spending Clause implications of the health care case. Environmental lawyers and scholars should …
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CONTINUE READING“United We Stand”: National Unity in the Face of Disaster
During the Republican primaries, Governor Romney proposed curtailing or even eliminating the federal role in disaster response, leaving the response efforts to the states or the private sector. Why does this seem viscerally wrong to so many people today (enough so that Romney first refused to answer any questions about it and then abandoned it …
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CONTINUE READINGRomney Versus Disaster Assistance
In assessing Romney’s argument that disaster response should be a state or private responsibility, we should consider his record in Massachusetts. In his last year as governor, Romney refused to provide state assistance when major floods hit western Massachusetts., even though the state government had ample funds. Romney had already begun to run for President, …
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CONTINUE READINGSagebrush rebellion, version 3.1
Some things never seem to change, including the (interior) West’s frustration over the extensive federal land holdings in the region. If you’re old enough, you might recall the Sagebrush Rebellion, which peaked about 1980 with the election of Ronald Reagan, a self-declared sagebrush rebel. (If you want to bone up, the Forest History Society offers …
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CONTINUE READINGWhat Will the Outcome of the Health Care Case Tell Us About Environmental Law?
This week’s oral arguments will be carefully parsed for signs of how the Supreme Court will rule about the constitutionality of the Health Care Act. If the Administration wins the case, this will be largely a confirmation that the majority of the Court prefers to follow firmly established existing precedent. If it loses, the outcome …
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CONTINUE READINGLegal Planet Takes Over the Yale Law Journal
Along with Dan, I also have a response to the Ewing/Kysar paper at YLJ Online. (For those of your keeping score at home, two out of three commissioned responses were Legal Planet bloggers: we win!). It should surprise no one that while Dan’s is elegant and technical, mine is cranky and dyspeptic. Here’s the abstract: This …
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