federalism
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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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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CONTINUE READINGWhy 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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CONTINUE READINGA 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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CONTINUE READINGAgency 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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CONTINUE READINGKerry-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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CONTINUE READINGConference Webcast – The Environment and the Constitution
*Webcast is archived for later viewing, if you didn’t catch the live event. On February 26, 2010. 9:00 a.m. – 5:30 p.m.webcast of (EST), you can attend the Environmental Protection in the Balance: Citizens, Courts, and the Constitution at Georgetown University Law Center, Washington, DC. Today, the most important environmental law and policy disputes are …
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CONTINUE READINGIndian Federalism and Climate Change
Federalism is a hot topic (so to speak) for scholars working on climate change, but we have so far remained resolutely at home, focusing solely on American federalism. It’s now time to start thinking about how federalism might impact India, which has maintained a federal system for more than 60 years, and has decentralized greatly in …
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CONTINUE READINGA Silver Lining to the Supreme Court Term for Environmentalists?
In assessing the environmental train wreck that was the just-concluded Supreme Court Term, the question arises: is there anything from that Term from which environmental interests can take comfort? The answer is at least a qualified “yes.” Somewhat lost in the attention focused on the justices’ five major environmental decisions–all of them clear defeats for …
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