Michigan Journal of Environmental & Administrative Law最新文献

{"title":"Midnight Rules: A Reform Agenda","authors":"J. Beermann","doi":"10.36640/mjeal.2.2.midnight","DOIUrl":"https://doi.org/10.36640/mjeal.2.2.midnight","url":null,"abstract":"There is a documented increase in the volume of regulatory activity during the last ninety days of presidential administrations when the President is a lame duck, having either been defeated in a bid for re-election or being at the end of the second term in office. This includes an increase in the number of final rules issued as compared to other periods. The phenomenon of late-term regulatory activity has been called “midnight regulation,” based on a comparison to the Cinderella story in which the magic wears off at the stroke of midnight. This Article looks closely at one species of midnight regulation— namely, midnight rules. This Article defines midnight rules as agency rules promulgated in the last ninety days of an administration. This Article focuses on legislative midnight rules (normally issued under the notice and comment procedures of the Administrative Procedure Act (APA)), because they are the most visible and often the most controversial actions taken in the final days of administrations and because they are usually the most difficult to alter or revoke among the various midnight actions taken by outgoing administrations. However, because late-term activity goes beyond legislative rulemaking, this report also discusses, to a lesser extent, other phenomena such as the issuance of non-legislative rules including interpretative rules and policy statements; non-rule regulatory documents, such as guidance documents and executive orders; and the use of other presidential powers, such as the pardon power and the ability to entrench political appointees into protected employment positions in the new administration. This Article documents the existence of the midnight rules phenomenon both quantitatively and qualitatively, using numerical measures of the volume of rules and qualitative analysis of some rules as illustrations. The Article reviews various explanations for the existence of the phenomenon, ranging from the simple human tendency to work to deadline, to more complicated political factors that may affect the timing of rules. The Article also reports on interviews of officials involved in rulemaking to inform the analysis of the causes and effects of the midnight rulemaking phenomenon. This Article also addresses midnight rulemaking from a policy perspective, asking whether there are reasons to be concerned about the phenomenon. Midnight rulemaking and midnight regulation generally have been strongly condemned by commentators and media from across the political spectrum. There are at least two possible sets of concerns regarding the increase in rulemaking at the end of an administration: first, midnight rules may be of lower quality than rules issued at other times during administrations, and second, midnight rulemaking may involve undesirable political consequences, mainly the unwarranted extension of an outgoing administration’s agenda into the successor’s term. It may be very difficult to arrive at firm conclusions on either of t","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-07-12","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"128876440","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":"Rulemaking vs. Democracy: Judging and Nudging Public Participation That Counts","authors":"Cynthia Farina, Mary J. Newhart, J. Heidt","doi":"10.36640/mjeal.2.1.rulemaking","DOIUrl":"https://doi.org/10.36640/mjeal.2.1.rulemaking","url":null,"abstract":"This Article considers how open government “magical thinking” around technology has infused efforts to increase public participation in rulemaking. We propose a framework for assessing the value of technology-enabled rulemaking participation and offer specific principles of participation-system design, which are based on conceptual work and practical experience in the Regulation Room project at Cornell University. An underlying assumption of open government enthusiasts is that more public participation will lead to better government policymaking: If we use technology to give people easier opportunities to participate in public policymaking, they will use these opportunities to participate effectively. However, experience thus far with technology-enabled rulemaking (e-rulemaking) has not confirmed these assumptions. To the extent that new participants have engaged with the process, their engagement predominantly takes the form of mass comment campaigns orchestrated by advocacy groups. The conventional response to this new participation—by agencies and academics alike—has been to regard mass commenting as worse than useless. Recently, though, Professor Nina Mendelson argued for rethinking this response. Exploring the relationship between rulemaking and democratic government, she proposes that agencies should take account of the value preferences expressed in such comments when rulemaking involves value judgments. Engaging this important argument, we suggest that not all citizens’ preferences about policy outcomes are created equal. We present a typology that captures important differences in information quality and deliberativeness of preference formation. Unlike electoral democracy (in which participation based on any type of preference is valued), the legitimacy of rulemaking derives from a formally transparent process of reasoned deliberation. The types of preferences expressed in mass comments may be good enough for electoral democracy, but they are not good enough for rulemaking, even when rulemaking is heavily laden with value choices. This position challenges both the Web 2.0 ethos and the common open-government belief that more public participation, of any kind, is a good thing. At least with respect to rulemaking and similar complex policymaking processes, more public participation is good only if it is the kind of participation that has value in the process. From our experiences on Regulation Room, we argue that design of successful “Rulemaking 2.0” civic engagement systems must involve a purposeful and continuous effort to balance “more” and “better” participation. We offer several specific design principles for striking this balance, perhaps the most important of which is that a democratic government should not actively facilitate public participation that it does not value.","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"1 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-05-08","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"130369969","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":"A Functional Approach to Risks and Uncertainties Under NEPA","authors":"T. Aagaard","doi":"10.36640/mjeal.1.1.functional","DOIUrl":"https://doi.org/10.36640/mjeal.1.1.functional","url":null,"abstract":"The National Environmental Policy Act (NEPA) mandates that federal agencies evaluate the environmental impacts of their proposed actions. This requires agencies to make ex ante predictions about environmental consequences that often involve a significant degree of factual risk or uncertainty. Considerable controversy exists regarding how agencies should address such risks and uncertainties. Current NEPA law adopts a largely ad hoc approach that lacks coherence and analytical rigor. Some environmentalists and legal scholars have called for a greater emphasis on worst-case analysis in environmental planning, especially after the recent Deepwater Horizon oil spill in the Gulf of Mexico and the meltdowns at the Fukushima Daiichi nuclear reactors in Japan, both of which involved the eventuation of risks dismissed ex ante as improbable. This Article proposes a functional approach to environmental risks and uncertainties under NEPA as a preferable alternative to both a worst-case analysis requirement and the morass of existing approaches. A functional approach that is sensitive to context and analytically focused is better suited to the complexities of environmental planning. It is consonant with current NEPA law, but also can refine existing law to develop requirements that focus on effectuating NEPA’s purposes by producing useful environmental information.","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"107 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-04-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"125319264","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 Quest for a Sustainable Future and the Dawn of a New Journal at Michigan Law","authors":"David M. Uhlmann","doi":"10.36640/mjeal.1.1.quest","DOIUrl":"https://doi.org/10.36640/mjeal.1.1.quest","url":null,"abstract":"When I joined the faculty of the University of Michigan Law School in 2007, the first assignment I gave students in my Environmental Law and Policy class was John McPhee's Encounters with the Archdruid. It must have seemed like a curious choice to them, particularly coming from a professor who just three months earlier had been the Chief of the Environmental Crimes Section at the U.S. Department of Justice. The book was not a dramatic tale of courtroom battles. In fact, the book was not even about the law, and the clash of environmental values it depicted pre-dated the environmental statutes that were the focus of the course. Encounters with the Archdruid chronicles outings McPhee organized during the 1960s with David Brower, the first Executive Director of the Sierra Club and one of the most influential environmental activists of his generation. Brower was an unapologetic advocate for conservation at a time when we still believed that anything was possible in the United States and that America had an endless bounty of natural resources to support economic growth. McPhee paired Brower with three antagonists who had very different ideas about our relationship with the environment: Charles Park, the former Dean of Stanford University's School of Earth Sciences and a proponent of mining in the Cascade mountains; Charles Fraser, the developer of Hilton Head Island in South Carolina, who had similar plans to develop Cumberland Island off the Georgia coast; and Floyd Dominy, the indomitable Commissioner of the Bureau of Reclamation, who wanted to dam the Colorado River near the Grand Canyon. The stories in Encounters with the Archdruid occurred more than forty years ago, but I assigned the book to my students both for historical context and because the disagreements it describes about our environmental values remain potent today. As they hiked in the Cascades, Brower and Park argued about whether copper mining should be allowed in protected wilderness near Glacier Peak. Brower observed that the Cascades are \"one of the few remaining great wildernesses in the lower forty-eight\" and asked, \"Would America have to go without much to leave its finest wilderness unspoiled?\" Park countered that \"[m]inerals are where you find them. The quantities are finite. It's criminal to waste minerals when the standard of living of your people depends upon them.\" For anyone who has followed the debate over proposals to drill in the Arctic National Wildlife Refuge (ANWR), the conflict and the language are familiar (only now the argument is about oil rather than copper, and the wilderness is in Alaska instead of Washington).","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"93 1","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"2012-01-23","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"126204101","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":"Energy-Water Nexus, the Clean Power Plan, and Integration of Water Resource Concerns into Energy Decision-Making","authors":"Sarah Ladin","doi":"10.36640/mjeal.7.1.energy-water","DOIUrl":"https://doi.org/10.36640/mjeal.7.1.energy-water","url":null,"abstract":"Energy regulation in the United States is now at a crossroads. The EPA has begun the process to officially repeal the Clean Power Plan and currently has no plan to replace it with new rulemaking to regulate carbon emissions from the U.S. energy sector. Even though the Clean Power Plan is more or less at its end, its regulatory structure stands as a model of the way decision-makers in the United States regulate the energy sector and the environment. Since the beginning of the modern environmental legal system, decision-makers have chosen to silo the system. Statutes and agencies focus on just one media or one issue. Tackling the climate crisis will inevitably require an integrationist model of lawmaking. The Clean Power Plan took the same problematic route as past regulation. While the Clean Power Plan rightfully addressed rising carbon levels, it failed to account for another growing problem associated with climate change: quickly depleting water resources. Although the consequences of the energy-water nexus are clear, U.S. decision-makers continue to ignore the need to integrate energy and water decision-making. Continuing to compartmentalize environmental problems, rather than addressing climate change impacts in a holistic manner, will not bring about the results that are desperately needed.\u0000\u0000The tools needed to integrate decision-making exist throughout the three branches of government. Congress can and should step in to pass a new statute, which establishes a legal mandate on agencies to fully consider the implications of energy policy and energy regulation on water resources. The federal courts can read a legal requirement into the Clean Air Act or the Administrative Procedure Act that would require federal action in the energy sphere to account for impacts on water resources. Finally, the President can use his power to force federal agencies to consider water resources more thoroughly than in the past. While some of these mechanisms may be hard to envision given the current political atmosphere, implementation is necessary to ensure water and energy security in the face of a growing climate crisis.","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"296 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":"114955458","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":"Both Sides of the Rock: Justice Gorsuch and the Seminole Rock Deference Doctrine","authors":"Kevin O. Leske","doi":"10.36640/mjeal.7.2.both","DOIUrl":"https://doi.org/10.36640/mjeal.7.2.both","url":null,"abstract":"Despite being early in his tenure on the U.S. Supreme Court, Justice Neil Gorsuch has already made his presence known. His October 16, 2017 statement respecting the denial of certiorari in Scenic America, Inc. v. Department of Transportation garnered significant attention within the legal community. Joined by Chief Justice John Roberts and Justice Samuel Alito, Justice Gorsuch questioned whether the Court’s bedrock 2-part test from Chevron, U.S.A. v. NRDC—whereby courts must defer to an agency’s reasonable interpretation of an ambiguous statutory term—should apply in the case.\u0000\u0000Justice Gorsuch’s criticism of the Chevron doctrine was not a surprise. In the months leading up to his confirmation hearing, legal scholars pored over his opinions while he was a judge on the U.S. Court of Appeals for the Tenth Circuit, and they had already unearthed his discomfort with the Chevron doctrine. Similarly, through an analysis of his originalism ideology and textualist approach to judicial decision-making, they have attempted to predict how Justice Gorsuch will decide future cases in other important areas of the law.\u0000\u0000To date, however, Justice Gorsuch’s view on the Seminole Rock deference doctrine has gone unexamined by scholars. Known as Chevron’s “doctrinal cousin,” the Seminole Rock doctrine directs federal courts to defer to an administrative agency’s interpretation of its own regulation unless such interpretation “is plainly erroneous or inconsistent with the regulation.” Especially given the profound practical importance of the doctrine in our administrative state and the Court’s recent interest in it, an assessment of Justice Gorsuch’s view is not merely academic.\u0000\u0000This essay provides that assessment. First, the essay examines the Seminole Rock deference doctrine and explores the Court’s recent interest in the doctrine. Part II analyzes Justice Gorsuch’s likely view on the Seminole Rock doctrine by examining key Tenth Circuit opinions that will influence his view on Seminole Rock while on the Supreme Court. The essay concludes that although Justice Gorsusch would likely be very skeptical of Seminole Rock, he should ultimately choose to retain the doctrine provided that the Court continues to provide safeguards that would mitigate or even mute any perceived over-reach that the application of Seminole Rock allows in our administrative state.","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"26 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":"115099955","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":"Is a Substantive, Non-Positivist United States Environmental Law Possible?","authors":"D. Tarlock","doi":"10.36640/mjeal.1.1.substantive","DOIUrl":"https://doi.org/10.36640/mjeal.1.1.substantive","url":null,"abstract":"U.S. environmental law is almost exclusively positive and procedural. The foundation is the pollution control and biodiversity conservation statutes enacted primarily between 1969–1980 and judicial decisions interpreting them. This law has created detailed processes for making decisions but has produced few substantive constraints on private and public decisions which impair the environment. Several substantive candidates have been proposed, such as the common law, a constitutional right to a healthy environment, the public trust, and the extension of rights to fauna and flora. However, these candidates have not produced the hoped for substantive law. Many argue that a substantive U.S. environmental law is not possible because the law can only serve to establish rational processes for resolving deep and bitter resource use conflicts. This Article argues that international environmental law can serve as a source of mixed procedural substantive principles because it has taken a much more holistic view of the environment, developed a set of overarching norms—soft as they are—that apply to almost all environmental problems, and has done a better job of linking procedure with substance in order to constrain decisions that adversely impact human and ecosystem “health.” The Article offers three proposed principles to strengthen the unfulfilled project of environmental protection. First, procedural duties must be linked to the implementation of substantive outcomes. Second, incomplete information must be a basis for regulatory actions, provided that a minimal scientific threshold of risk is established, processes are in place to acquire additional information, and the decision maker can adjust to changed circumstances. Third, decisions should exhibit planetary stewardship by applying the best available technology, utilizing the polluter pays principle, promoting an accepted standard of sustainable development, adopting the least intrusive resource use option with adaptive feedback, and restoring degraded ecosystems.","PeriodicalId":401480,"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":"129323713","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":"Too Many Cooks in the Climate Change Kitchen: The Case for an Administrative Remedy for Damages Caused by Increased Greenhouse Gas Concentrations","authors":"Benjamin Reese","doi":"10.36640/mjeal.4.2.many","DOIUrl":"https://doi.org/10.36640/mjeal.4.2.many","url":null,"abstract":"Recent federal and state court decisions have made clear that federal common law claims against emitters of greenhouse gases are not sustainable; however, those same courts seem to have given state common law tort claims the green light, at least if the claims are brought in the state where the polluters are located. This Note contends that such suits are not an adequate remedy for those injured by climate change because they will face nearly insurmountable barriers in state court, and because there are major policy-level drawbacks to relying on state tort law rather than a federal solution. This Note then proposes a federal regulatory system of climate change compensation and explains several reasons why it is a preferable means of compensating climate change’s victims.","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"32 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":"116498526","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":"Keynote Remarks at the University of Michigan Environmental Law and Public Health Conference","authors":"Gina Mccarthy","doi":"10.36640/mjeal.3.2.keynote","DOIUrl":"https://doi.org/10.36640/mjeal.3.2.keynote","url":null,"abstract":"The following are the prepared remarks delivered at the University of Michigan Law School’s 2013 Environmental Law and Public Health Conference on September 26, 2013.","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"22 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":"126383555","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":"Legal Protection for Groundwater-Dependent Ecosystems","authors":"Collin Gannon","doi":"10.36640/mjeal.4.1.legal","DOIUrl":"https://doi.org/10.36640/mjeal.4.1.legal","url":null,"abstract":"This Note concerns the legal protection of groundwater-dependent ecosystems in the United States and abroad. By first describing the science and ecology of ecosystems that are dependent on groundwater and then surveying the current American legal system that fails to adequately protect groundwater-dependent ecosystems (GDEs), this Note proposes legal reforms that could vastly improve groundwater management systems. State protection of GDEs is sparse and often only operates indirectly as a result of states’ water policies focused on water quantity upkeep for consumptive purposes. Part I provides an overview of GDEs. Part II discusses state legal protection, including indirect state protection measures and the public trust doctrine. Part III gives an assessment of the federal government’s ability to protect GDEs. The federal government may explicitly reserve federal water rights to protect GDEs through the Winters Doctrine, which has successfully protected some at-risk ecosystems by ensuring adequate groundwater resources within federally reserved lands. Additionally, the federal government, like the states, can also indirectly protect GDEs. As highlighted in this Note, such federal actions include attempts to influence state policies through education concerning the hydrological connectivity of surface and ground waters, and thus the necessity to sustainably manage water sources, as well as threats regarding federal funding which effectively forced states to adopt those sustainable water management policies. The Endangered Species Act has unsurprisingly had considerable success in protecting GDEs, but this success is necessarily restricted to situations in which a threatened or endangered species is present. This Note also includes an analysis of the Sporhase Doctrine, which involves the protection of GDEs by requiring the open trade of groundwater resources through the Dormant Commerce Clause. But in practice, this doctrine has been generally ineffective.","PeriodicalId":401480,"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":"131087673","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}