federalism
Is 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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CONTINUE READINGProds and Pleas/Stopgaps and Failsafes
In a recent article in the Yale Law Journal, Benjamin Ewing and Douglas Kysar discuss how other part of government can step in when Congress defaults on its responsibility to make public policy. Their article, Prods and Pleas: Limited Government in an Era of Unlimited Harm, focuses on the tort litigation involving climate change. Using …
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CONTINUE READINGCalifornia’s Role in the New Fuel Economy Standards
Dan rightly praised the good news about newly agreed to federal fuel economy standards for the 2017-2025 time frame that will reach 54.5 miles per gallon by 2025 (though there will be a review at midpoint and a possibility for readjustment if the 54.5 mpg standard proves too tough). In all of the press …
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CONTINUE READINGThe Year of Living Preemptively
Preemption is the question of whether a state’s legal rule is invalid because it conflicts with a federal statute. Environmentalists have been particularly concerned about this issue in recent years because state laws are often “greener” these days than federal ones. The Supreme Court has an unusual number of preemption cases on its docket this …
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