federalism

Sagebrush 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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What 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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Legal 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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Prods 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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California’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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The 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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Why the Feds Should Pay the Administrative Costs of Implementing AB 32

There’s been a lot of discussion of whether Prop 26 interferes with the use of fees to pay the administrative expenses for AB 32.  I would like to suggest an alternative solution: the Feds should pick up the tab.  This may seem a little far-fetched, given the current political situation, but it makes real sense …

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A Question on Agency Pre-emption of State Law

Dan, any reason to think that the powers that be will actually pay any attention to the ABA?  As you know, the Bush Administration formally decided to ignore it regarding judicial appointments.  On something like this, does the ABA have any status greater than your typical interest group? It would be interesting to see the …

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Agency Preemption of State Law

Administrative agencies sometimes issue regulations that have the effect of overruling state law — and sometimes that is the sole effect of the regulation.  This proved quite controversial during the Bush Administration, which used agency rulemaking efforts to cut back on state tort law.  The ABA has a adopted a new resolution dealing with this …

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Kerry-Lieberman and State Government

The Georgetown Climate Center has put together a very useful  summary of how the bill would impact state regulation, both positively and negatively. The most important fact is that the summary is fifteen pages long.  The bill is obviously a big deal in terms of helping state regulation in some respects and curtailing it in …

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