Michigan Journal of Environmental & Administrative Law最新文献

{"title":"Evaporating Into Thin Air: The Prosecution of Air Pollution Crimes During the Trump Administration","authors":"Joshua Ozymy, Melissa Ozymy","doi":"10.36640/mjeal.11.2.evaporating","DOIUrl":"https://doi.org/10.36640/mjeal.11.2.evaporating","url":null,"abstract":"Antagonistic to environmental regulation, the Trump Administration sought to significantly roll back federal clean air law enforcement. Yet, we know very little about the impact of the Administration on air pollution criminal enforcement. Through content analysis of all EPA criminal investigations leading to prosecution, we analyze patterns in charging and sentencing and draw out the broader themes in air pollution prosecutions during this period. Our results show a sizable drop in prosecutions compared to the Obama Administration. Although prosecutors managed to pursue serious crimes involving significant harm and criminal conduct and secure over $2.9 billion in monetary penalties, roughly 160 years of probation, and 146 years of incarceration at sentencing, many of these penalties result from a few prosecutions. Our conclusions focus on forward-facing solutions for the Biden Administration to make good on campaign promises to reduce environmental injustice through enhanced environmental criminal enforcement, community policing and engagement, and recognition of environmental justice communities as crime victims.","PeriodicalId":302203,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"12 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"133574018","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Public Trust and the Chicago Lakefront: Review of Kearney & Merrill’s Lakefront: Public Trust and Private Rights in Chicago (Cornell U. Press, 2021)","authors":"M. Blumm","doi":"10.36640/mjeal.11.2.public","DOIUrl":"https://doi.org/10.36640/mjeal.11.2.public","url":null,"abstract":"Joseph Kearney and Thomas Merrill’s brilliantly illustrated LAKEFRONT is sure to win American legal history awards for its riveting history of the machinations behind the preservation of the magnificent Chicago lakefront, now dominated by public spaces. The authors weave together a compelling account of how the law affected the development of the post-fire Chicago in the late 19th and 20th centuries—largely made by lawyers and courts and only ratified by legislatures. The book’s title suggests that the story is largely about the public trust doctrine (PTD). But the doctrine is hardly the centerpiece of the authors’ story. What they have to say about the doctrine is confined to the Illinois version of the PTD, and they do not endeavor to explain where it deviates from the modern direction of the PTD.\u0000\u0000The book’s history of Chicago and its lakefront is groundbreaking legal history, buttressed by twenty years of exhaustive research, colorful characters, and interesting legal developments, of which the PTD played only a supporting role until the 1970s. The principal lesson of their story, one the authors do not emphasize enough, is a persistent struggle between public and private rights along the lakefront. What is unusual is how long this struggle endured, beginning with Illinois Central Railroad’s dominance in the late 19th century and the so-called “Lake Front Steal” of 1869, in which the Illinois legislature conveyed roughly one thousand acres of submerged Lake Michigan land to the railroad. The legislature soon thought better of the giveaway, and its rescission in 1873 culminated in a famous 1892 Supreme Court decision on the PTD, Illinois Central Railroad v. Illinois, pronounced as the lodestar case of the doctrine by Professor Joe Sax a half-century ago.\u0000\u0000The authors discuss the controversy over the lakebed conveyance and the Court’s pathbreaking decision, but they view the effect of the PTD on the Chicago lakefront as less significant than other considerations like the public dedication doctrine, which nearby landowners invoked to restrict development of the lakefront and preserve their views of the lake. Still, the Illinois Central Court focused public attention on what was an attempt to create a monopoly of the lake’s outer harbor, and that attention has persisted for a century-and-a-quarter following the Court’s decision. Today, the Chicago lakefront is largely public, the consequence of several factors that LAKEFRONT explains. This struggle between public and private rights over the Chicago lakefront existed long before the dawn of the modern environmental movement a half-century ago, influenced not only by the Court’s surprising 1892 decision but also by the persistent oversight of neighboring landowners protecting their views of the lake. This public-private clash, in which private rights were subject to both public and neighboring landowner challenges, created the glorious Chicago waterfront of today.\u0000\u0000This review of the Kearney and Me","PeriodicalId":302203,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"122 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131985465","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"From Four Horsemen to the Rule of Six: The Deconstruction of Judicial Deference","authors":"Keith W. Rizzardi","doi":"10.36640/mjeal.12.1.from","DOIUrl":"https://doi.org/10.36640/mjeal.12.1.from","url":null,"abstract":"In its tumultuous 2022 term, the Supreme Court rebalanced the separation of powers, again. A tradition of self-restraint has evolved through case law and statutes when the judiciary reviews the actions of the other branches of government. The judiciary often accepts congressional judgments as to whether laws are necessary and proper and defers to executive agency interpretations of those congressional acts. The historical notion of judicial deference, however, earned criticism due to concerns about the potential unchecked decision-making power of unelected executive agency bureaucrats. The emerging alternative system might be worse.\u0000\u0000History offers parallels. During the New Deal, a core group of Supreme Court justices known as the “Four Horsemen” often struck down agency actions or legislative acts, apparently based upon their views of economic policy. But during the “Switch in Time that Saved Nine” that followed, a changing majority of the Court exercised judicial restraint, upholding policy judgments by Congress and the executive agencies. The clock seemingly rewound in 2022, as a new conservative majority of justices declared statutes insufficient and struck down agency actions, embracing a logic akin to their New Deal predecessors. By deconstructing judicial deference, these justices can now impose the Rule of Six and selectively choose the applicable interpretive doctrine to achieve their personally preferred policy outcomes.\u0000\u0000The fundamental question of American governance is “Who decides?”. In 2022, the unelected Supreme Court expanded its power over both unelected agency experts and elected officials. Inevitably, history will echo, and debates over court reforms will remerge. But for now, in our extraordinary era of emergencies, epidemics, and a climate crisis, six robed riders on horseback have appeared.","PeriodicalId":302203,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122164461","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Environmental Governance by Contract: The Growing Role of Supply Chain Contracting","authors":"Michael Vandenburgh, Patricia Moore","doi":"10.36640/mjeal.12.1.environmental","DOIUrl":"https://doi.org/10.36640/mjeal.12.1.environmental","url":null,"abstract":"Corporate net zero climate commitments and environmental, social, and governance (ESG) policies have the potential to bypass barriers to international, national, and subnational government action on climate change and other environmental issues. This Article presents the results of a new empirical study that demonstrates the remarkably widespread use of environmental supply chain contracting requirements. The study finds that roughly 80% of the ten largest firms in seven global sectors include environmental requirements in supply chain contracting, a substantial increase over the 50% reported by a comparable study fifteen years ago. The Article concludes that the prevalence of environmental supply chain requirements, the types of contract requirements, and the motivations of the contracting parties signal new ways to fill important gaps in public governance.","PeriodicalId":302203,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"129118546","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Nature’s Rights","authors":"Christiana Ochoa","doi":"10.36640/mjeal.11.1.natures","DOIUrl":"https://doi.org/10.36640/mjeal.11.1.natures","url":null,"abstract":"Do forests and rivers possess standing to sue? Do mountain ranges have substantive rights? A recent issue of The Judges’ Journal, a preeminent publication for American judges, alerts the bench, bar, and policymakers to the rapidly emerging “rights of nature,” predicting that state and federal courts will increasingly see claims asserting such rights. Within the United States, Tribal law has begun to legally recognize the rights of rivers, mountains, and other natural features. Several municipalities across the United States have also acted to recognize the rights of nature. United States courts have not yet addressed the issue, though in 2017, a plaintiff brought a suit claiming rights for the Colorado River ecosystem, although the case was dismissed. Meanwhile, several countries outside the United States have extended standing and substantive rights to nature, and that number is growing quickly. This international trend matters because U.S. Supreme Court Justices, including Sonia Sotomayor and Stephen Breyer, have argued that American courts should note and address cutting-edge legal developments in foreign jurisdictions. This Article provides the key foundational and theoretical basis for recognizing the rights of nature. It explores the intellectual and precedential basis for accepting nature’s rights, surveying developments in the natural sciences, social sciences, and humanities, and providing a survey of select legal systems that currently recognize such rights. It traces the geographic, theoretical, and practical development of the idea of nature’s rights, illustrating that human thought regarding the intrinsic value and rights of nature has evolved significantly since our common law on the issue was established. This Article thus provides the intellectual, moral, and philosophical foundation for students, clerks, judges, and lawmakers facing questions about extending rights to nature.","PeriodicalId":302203,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"17 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125435066","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Dormant Commerce Clause as a Way to Combat the Anti-Competitive, Anti-Transmission-Development Effects of State Right of First Refusal Laws for Electricity Transmission Construction","authors":"Walker Mogen","doi":"10.36640/mjeal.12.2.dormant","DOIUrl":"https://doi.org/10.36640/mjeal.12.2.dormant","url":null,"abstract":"To quickly decarbonize the electricity grid, new sources of renewable energy have to be connected to the grid. To connect these sources of energy to the grid, the rate of construction of new electricity infrastructure must increase quickly. The process to construct new electricity transmission infrastructure, however, is filled with chokepoints that slow its construction. State right of first refusal laws for transmission construction are one the things slowing the build out of the grid. These laws limit which companies can construct new transmission infrastructure to utilities and other companies already operating transmission infrastructure in a state. This Note, using a circuit split between the Fifth and Eighth Circuits as a jumping off point, argues that these state right of first refusal laws violate the dormant Commerce Clause because they serve as impermissible local presence requirements that prevent companies not already operating in a state from accessing and competing in a state’s markets. The Note concludes by analyzing how the Supreme Court would potentially rule if they resolved this Circuit split.","PeriodicalId":302203,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"10 6","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120901529","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"The Public Trust Doctrine and the Climate Crisis: Panacea or Platitude?","authors":"Joseph Regalia","doi":"10.36640/mjeal.11.1.public","DOIUrl":"https://doi.org/10.36640/mjeal.11.1.public","url":null,"abstract":"Over a year of shutting down the global economy during the COVID pandemic achieved about .01 degrees of improvement in global warming. Not even a drop in the bucket. We continue to face a monumental climate crisis. And of the many ways that crisis threatens our environment, winnowing water resources is one of the scariest. One solution that many scholars have turned to is the public trust doctrine. At first blush, this doctrine sounds like a panacea for water management problems: When our water resources are threatened enough that current and future citizen’s access to it is in peril, the trust kicks in. The government must take steps to protect our waterbodies. So no surprise that scholars have flocked to the doctrine and analyzed just about every angle of the public trust. Save perhaps one: Does it even work? Much less attention has been paid to what concrete impact the public trust is having on real litigation. There is no shortage of language in case law or state statutes about the trust. But does that language do any good? This article tries to answer that question, collecting data about state court decisions mentioning the public trust doctrine in thirty states. Our team reviewed the cases and coded them based on how authorities used the public trust doctrine. Our goal was to answer a key question: When does the public trust doctrine matter in real cases? In other words, when do courts use the doctrine to protect natural water resources? Beyond shedding light on how effective the doctrine is on the ground, this article’s goal is to offer insights about both successful and unsuccessful cases. What can we learn from the cases in which it does work that might equip litigants to wield this weapon better in the future? In most cases reviewed, the public trust doctrine was ineffective at combatting climate change or other harms to natural water resources. But the data offers ideas for moving forward towards a version of the public trust that will have teeth in the climate fight.","PeriodicalId":302203,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"36 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"131033375","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

{"title":"Tightening the Legal ‘Net’: The Constitution’s Supremacy Clause Straddle of the Power Divide","authors":"S. Ferrey","doi":"10.36640/mjeal.10.2.tightening","DOIUrl":"https://doi.org/10.36640/mjeal.10.2.tightening","url":null,"abstract":"This article analyzes Constitutional Supremacy Clause tensions in preempting state law that addresses climate change and the rapid warming of the Planet. Net metering laws, enacted in 80% of U.S. states, are a primary legal mechanism to control and mitigate climate warming. This article analyzes three recent federal court decisions creating a preemptive Supremacy Clause stand-off between federal and state law and presents a detailed state-by-state analysis of which those 80% of states’ laws could be preempted by legal challenge.\u0000\u0000If state net metering laws affected only ordinary technologies, this issue would not be front and center with global warming. However, state net metering laws are the most widely deployed U.S. incentive for renewable energy to address climate warming. This article examines and documents, state-by-state, that 75% of the states with questionable legal practices a decade ago have changed their laws to avoid legal prohibitions, while some others have not.\u0000\u0000At the federal level, the federal government recently revised regulations substantially restricted four decades of federal regulatory incentives for small renewable energy projects pursuant to the key statute that President Jimmy Carter characterized as the federal response to fight the “moral equivalent of war!” In its conclusion, this article provides a legal path for states to insulate their state laws from Constitutional challenge while still effectively addressing climate change. There is much at risk in the legal structure of U.S. state net metering laws, as world climate approaches the tipping points that will alter regional and global environmental balances irreversible within the time span of our current civilization.","PeriodicalId":302203,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"20 9","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"132287363","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":0,"RegionCategory":"","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}