Michigan Journal of Environmental & Administrative Law最新文献

{"title":"Implementing NEPA in the Age of Climate Change","authors":"J. Hein, Natalie Jacewicz","doi":"10.2139/ssrn.3674544","DOIUrl":"https://doi.org/10.2139/ssrn.3674544","url":null,"abstract":"The national government has a crucial role to play in combating climate change, yet federal projects continue to constitute a major source of United States greenhouse gas emissions. Under the National Environmental Policy Act, agencies must consider the environmental impacts of major federal actions before they can move forward. But agencies frequently downplay or ignore the climate change impacts of their projects in NEPA analyses, citing a slew of technical difficulties and uncertainties. This Article analyzes a suite of the most common analytical failures on the part of agencies with respect to climate change: failure to account for a project’s downstream and upstream greenhouse gas emissions; failure to acknowledge a project’s effect on the country’s energy mix; and failure to consider a reasonable social cost of carbon. After summarizing current regulatory practice and case law on each topic, this Article finds that despite protestations that accounting for such impacts is infeasible, agencies already possess many of the tools needed to assess such impacts, and indeed, some agencies already use these tools to do so. Furthermore, courts are increasingly holding agencies accountable for a full and fair assessment of climate change effects in NEPA analysis. This Article aims to highlight best practices so that agency offices can learn from one another, fulfill NEPA’s mandate, and begin to provide leadership in the fight against climate change.","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"89 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-08-04","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115786981","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":"What a Difference a State Makes: California’s Authority to Regulate Motor Vehicle Emissions Under the Clean Air Act and the Future of State Autonomy","authors":"Chiara Pappalardo","doi":"10.2139/ssrn.3735524","DOIUrl":"https://doi.org/10.2139/ssrn.3735524","url":null,"abstract":"Air pollutants from motor vehicles constitute one of the leading sources of local and global air degradation with serious consequences for human health and the overall stability of Earth’s climate. Under the Clean Air Act (“CAA”), for over fifty years, the state of California has served as a national “laboratory” for the testing of technological solutions and regulatory approaches to improve air quality. On September 19, 2019, the Trump Administration revoked California’s authority to set more stringent pollution emission standards. The revocation of California’s authority frustrates ambitious initiatives undertaken in California and in other states to reduce local air pollution and mitigate the effects of climate change from mobile sources. This Article argues that the reasons offered by the Administration to justify its rollback of California’s authority are not persuasive. They do not find support in the history and longstanding interpretation of the CAA, in the Environmental Protection Agency’s implementation practice, or in the regulated industry, and, coupled with halting the rise in federal fuel economy standards, constitute unsound policy at a crucial moment for greenhouse gas emissions mitigation. In addition, this Article advances the idea that instead of aiming to suppress California’s experimentation with zero emissions vehicles, current and future Administrations should embrace new ways to cooperate with California and a growing number of states that have begun thinking creatively about reforming the transportation sector. By building on a flexible and multilevel model of governance, grounded on forms of cooperative federalism that leverage state innovation and regulatory expertise, the federal government together with the states will ensure a more competitive future for America.","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"17 6","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-04-15","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"120982235","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 Rise and Fall of Clean Air Act Climate Policy","authors":"N. Richardson","doi":"10.31235/osf.io/wqy93","DOIUrl":"https://doi.org/10.31235/osf.io/wqy93","url":null,"abstract":"The Clean Air Act has proven to be one of the most successful and durable statutes in American law. After the Supreme Court’s 2008 decision in Massachusetts v. EPA, there was great hope that the Act could be brought to bear on climate change, the most pressing current environmental challenge of our time. Massachusetts was fêted as the most important environmental case ever decided, and, upon it, the Environmental Protection Agency under President Obama built a sweeping program of greenhouse gas regulations, aimed first at emissions from road vehicles, and later at fossil fuel power plants. It was the most ambitious federal climate policy in American history. Now, twelve years after Massachusetts was decided, that program is in ruins, largely repealed or weakened by the climate-skeptic Trump administration. Massachusetts has not provided a foundation for durable climate policy. The roots of the Clean Air Act’s climate policy failures lie not just in changes in political leadership, but also in a Supreme Court majority increasingly skeptical of not just climate regulation but of the administrative state in general. This and other barriers will persist regardless of who occupies the White House. This article explores why climate regulation under the Clean Air Act has been so much more fragile than other regulations under the statute, which actors bear responsibility for its failures, and what prospects remain for future federal climate policy.","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"32 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-03-10","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"122395030","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":"Natural Resources and Natural Law Part II: The Public Trust Doctrine","authors":"R. Adler","doi":"10.2139/ssrn.3542342","DOIUrl":"https://doi.org/10.2139/ssrn.3542342","url":null,"abstract":"Natural Resources and Natural Law Part I: Prior Appropriation analyzed claims by some western ranchers, grounded in natural law, that they have property rights in grazing resources on federal public lands through prior appropriation. Those individuals advocated their position in part through civil disobedience and armed standoffs with federal officials. They also asserted that their duty to obey theistic natural law overrode any duty to obey the Nation’s positive law. Similar claims that individual religious beliefs override positive law have been made recently regarding a range of other controversial issues, such as same-sex marriage, public insurance for birth control, and the right to bear arms. Prior appropriation doctrine is consistent with secular natural law theory. Existing positive law, however, accepts prior appropriation for western water rights but rejects its application to grazing rights on federal public lands, for reasons consistent with secular natural law. Natural law doctrine allows citizens to advocate for change but requires them to respect the positive law of the societies in which they live. Separation of church and state also bars natural law claims based on religious doctrine unless those principles are also adopted in secular positive law.\u0000\u0000This sequel addresses claims from the opposite side of the political-environmental spectrum, that natural law provides one justification for the public trust doctrine, and that courts should enforce an atmospheric public trust to redress catastrophic global climate change. Although some religious groups have embraced environmental agendas supported by religious doctrine, public trust claims are secular in origin. Just as natural law provides support for prior appropriation, it supports the idea that some resources, such as water, wildlife, and air, should be held in common rather than made available for private ownership. From this perspective, the two doctrines merge into a single issue of resource allocation. Which resources are best made available for appropriation as private property, and which are best left in common? Natural law theory helps to explain the liberty and welfare goals that inform those choices. Positive law embraces the public trust doctrine with respect to some natural resources, and does not preclude its applicability to the atmosphere or other common resources.","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"47 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2020-02-21","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"123198419","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":"Prosecutorial Discretion and Environmental Crime Redux: Charging Trends, Aggravating Factors, And Individual Outcome Data For 2005-2014","authors":"David M. Uhlmann","doi":"10.36640/mjeal.8.2.prosecutorial","DOIUrl":"https://doi.org/10.36640/mjeal.8.2.prosecutorial","url":null,"abstract":"In a 2014 article entitled “Prosecutorial Discretion and Environmental Crime,” I presented empirical data developed by student researchers participating in the Environmental Crimes Project at the University of Michigan Law School. My 2014 article reported that 96 percent of defendants investigated by the United States Environmental Protection Agency and charged with federal environmental crimes from 2005 through 2010 engaged in conduct that involved at least one of the aggravating factors identified in my previous scholarship, namely significant harm, deceptive or misleading conduct, operating outside the regulatory system, and repetitive violations. On that basis, I concluded that prosecutors charged violations that included those aggravating factors in nearly every case over a six-year period—and that defendants who committed environmental violations that did not involve one of those aggravating factors were unlikely to face criminal charges.\u0000\u0000In this Article, I provide the latest data from the Environmental Crimes Project, which now includes defendants charged from 2005 through 2014. I again find that most defendants charged with federal environmental crimes committed violations that involved at least one of the four aggravating factors, with the levels even higher (98 percent of all defendants). I identify shifts in the data, the most notable of which are a dramatic drop in the number of cases and defendants charged during the last year of our data, a significant increase in the number of criminal charges brought under the Clean Air Act for non-asbestos abatement violations, and a nearly 40 percent increase in the percentage of defendants operating outside the regulatory system. I assess trends since Supreme Court decisions that restricted Clean Water Act jurisdiction and made federal sentencing guidelines advisory, and I analyze cases that fall outside my normative model and may pose questions about how prosecutors exercised their discretion.\u0000\u0000In addition, for the first time, I provide outcome data regarding environmental crime, which demonstrates that overall conviction rates are higher for environmental crime than in the federal system generally and for regulatory crime in particular, but are not as robust at trial. I also provide incarceration data, which shows that fewer environmental defendants are incarcerated than other regulatory crime defendants. I analyze whether there is any correlation between incarceration and the statutes charged, the presence of aggravating factors, or whether defendants plead guilty or are convicted after trial. The incarceration data shows a statistically significant correlation between the number of aggravating factors and whether a defendant is incarcerated. The incarceration data also shows a strong correlation between conviction at trial and incarceration, with defendants who are convicted at trial more than twice as likely to be sentenced to a period of incarceration than defendants who pleaded guilty.","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"39 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2019-05-30","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"115934247","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":"Fun with Administrative Law: A Game for Lawyers and Judges","authors":"A. Babich","doi":"10.36640/mjeal.4.2.fun","DOIUrl":"https://doi.org/10.36640/mjeal.4.2.fun","url":null,"abstract":"The practice of law is not a game. Administrative law in particular can implicate important issues that impact people’s health, safety, and welfare and change business’ profitability or even viability. Nonetheless, it can seem like a game. This is because courts rarely explain administrative law rulings in terms of the public purposes and policies at issue in lawsuits. Instead, the courts’ administrative law opinions tend to turn on arcane interpretive doctrines with silly names, such as the “Chevron two-step” or “Chevron step zero.” To advance doctrinal arguments, advocates and courts engage in linguistic debates that resemble a smokescreen—tending to obscure the real issues. Grammatical arguments about things like the “rule of the last antecedent” abound, and they rarely serve to make clear language any clearer, or to clarify ambiguous language. At its worst, this type of analysis frustrates one goal of the requirement of reasoned decisionmaking: preventing agency officials “from cowering behind bureaucratic mumbo-jumbo.” In this context, it is not surprising to see courts treat legislative goals and public policy as all but irrelevant to their decisions. Perhaps because much of the population has already written lawyers off as idiots and leeches, there is little public outrage at the spectacle of courts resolving important public issues in terms that only lawyers can understand. And even lawyers do not necessarily take these doctrines seriously.","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"184 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-04-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"121728620","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":"Human-Centered Environmental Values Versus Nature-Centric Environmental Values--Is This the Question?","authors":"Z. Plater","doi":"10.36640/mjeal.3.2.human-centered","DOIUrl":"https://doi.org/10.36640/mjeal.3.2.human-centered","url":null,"abstract":"The challenging background context for much of the discussion and cogitation in the panels and pages of this conference is the unfortunate fact that environmental protection law in virtually all its manifestations is currently faring rather poorly in the public policy arenas of national government. From the public health hazards of residual substances in consumer goods and human breast milk to the mighty troubles of human-caused climate disruption, many of the most significant structures of societal governance are locked in political and financial dysfunctions and impasses. Given the conference’s goal to “explore more deeply the relationship between environmental protection and public health and how it should inform our efforts to become better stewards of the environment,” this present essay carries an assignment to address the relationship between human-centric values (including public health concerns) on the one hand, and nature-centric (or “ecocentric,” or “biocentric”) values on the other. Should wise and fitting societal policies of the day give primacy to concerns for human health and welfare, or to the far more diffuse and intricate concerns and values represented by the natural laws and complex creatures and ecosystems coming to us from three billion years of evolving (animate/ carbon-based) life on Earth?","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"11 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"114782993","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":"Joseph Sax, a Human Kaleidoscope","authors":"Z. Plater","doi":"10.36640/10.36640/mjeal.4.1.joseph","DOIUrl":"https://doi.org/10.36640/10.36640/mjeal.4.1.joseph","url":null,"abstract":"Probably more than any other person most of us will ever have the opportunity of knowing, Joe Sax was kaleidoscopic in the way he projected his mind and lived his life as a scholar, teacher, and citizen seer. Shifting his analytical gaze from challenging context to challenging context, he repeatedly threw rich new patterns of perceptive light, thoughts broad and deep, onto a remarkable range of puzzles. Joe’s ability to think broadly and deeply influenced and reshaped the way that his students, friends, colleagues, and readers understood the intricacies, beauty, and challenges of the world around them. Others in this collection of essays are exploring the variegated dimensions of his work and teaching. This short piece—noting some selected vignettes of Joe’s time away from the podium and his typewriter—tries to capture at least a partial sense of how he carried himself as a person through the years of his professional life.","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"18 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2015-02-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128253222","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 Law, Public Health, and the Values Conundrum","authors":"David M. Uhlmann","doi":"10.36640/mjeal.3.2.environmental","DOIUrl":"https://doi.org/10.36640/mjeal.3.2.environmental","url":null,"abstract":"In September 1996, when I was nearing the end of my sixth year as a Justice Department environmental crimes prosecutor, one of my colleagues sent me an email that there was a “good-sounding RCRA [Resource Conservation and Recovery Act] knowing endangerment case developing in Idaho.” A twenty-year-old man named Scott Dominguez had collapsed inside a storage tank at an Idaho fertilizer manufacturing facility called Evergreen Resources. Mr. Dominguez could not be rescued for nearly an hour, because firefighters who responded to the scene did not know what was in the tank and what safety precautions they needed to take before entering the tank. The owner, Allan Elias, insisted that there was nothing in the tank that could hurt anyone, but later investigation would reveal that Elias had used the tank to conduct a cyanide-leaching operation at another facility he owned. By the time Dominguez was rushed to an area hospital, he had suffered permanent brain damage from cyanide poisoning. There was enough cyanide remaining in the tank to kill tens of thousands of people, based on total cyanide levels.","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2014-05-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"124165237","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":"Making Method Visible: Improving the Quality of Science-Based Regulation","authors":"Pasky Pascual, W. Wagner, E. Fisher","doi":"10.36640/mjeal.2.2.making","DOIUrl":"https://doi.org/10.36640/mjeal.2.2.making","url":null,"abstract":"Scientific inferences are theories about how the world works that scientists formulate based on their observations. One of the most difficult issues at the intersection of law and science is to determine whether the weight of evidence supports one scientific inference versus other competing interpretations of the observations. In administrative law, this difficulty is exacerbated by the behavior of both the courts and regulatory agencies. Agencies seldom achieve the requisite visibility that explains the analytical methods they use to reach their scientific inferences. Courts—because they appreciate neither the variety of inferential methods nor their epistemic foundations—do not demand this level of visibility from the agencies. We argue that much progress can be made toward visible, coherent, sciencebased regulations if courts ask two deceptively simple questions: (1) have the agency’s inferential methods been identified? and (2) does the agency explain how its methods are appropriate to the information on hand and how the methods support the agency’s inferences?","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"13 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2013-06-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128065006","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}