Michigan Journal of Environmental & Administrative Law最新文献

{"title":"Economic Solutions to Nuclear Energy's Financial Challenges","authors":"Zachary Robock","doi":"10.36640/mjeal.5.2.economic","DOIUrl":"https://doi.org/10.36640/mjeal.5.2.economic","url":null,"abstract":"This Note presents a legal, economic, and regulatory roadmap to drive long-term innovation in sustainable energy generation. Next-generation nuclear power, which fundamentally mitigates many safety and nuclear waste issues, is the focus of this Note; however, the economic concepts can be applied to encourage solar, wind, advanced battery, and other sustainable technologies with high upfront costs and low long-term variable costs. Advanced nuclear energy generation is economically competitive on a long-term levelized cost basis, but suffers from a timing issue—a large amount of capital is needed upfront, with repayment over several decades, during which time significant capital costs can accrue (e.g., compounding interest, often at unfavorably high interest rates). This Note offers solutions to offset capital costs in both regulated and deregulated energy markets, including tools to accelerate recognition of future revenue and to reduce interest rates.","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"9 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":"132244759","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":"Delinking International Environmental Law & Climate Change","authors":"C. Carlarne","doi":"10.36640/mjeal.4.1.delinking","DOIUrl":"https://doi.org/10.36640/mjeal.4.1.delinking","url":null,"abstract":"This Article challenges the existing paradigm in international law that frames global efforts to address climate change as a problem of and for international environmental law. The most recent climate reports tell us that warming is unequivocal and that we are already experiencing the impacts of climate change at the domestic level in the United States. Against this backdrop, much has been written recently in the United States about domestic efforts to address climate change. These efforts are important, but they leave open the question of how the global community can work together to address the greatest collective action problem of our time. Focusing on international efforts to address climate change, this Article pushes back against the dominant framing of global climate change as a problem of and for international environmental law. It argues that the static nature of the existing global paradigm brings about two primary harms. First, the failure to address climate change overshadows the larger field of international environmental law in a way that inhibits efforts to address a suite of persistent environmental problems beyond climate change. Second, framing climate change as a traditional environmental law problem constrains efforts to think more creatively about how to address a problem that defies classification as an environmental issue and demands innovative governance approaches. In making the legal case for delinking the debates about international environmental law and global climate change, this Article argues that challenging the existing global paradigm is critical to thinking more constructively about collective action in the climate context.","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"3 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":"115172311","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":"Reconciling Police Power Prerogatives, Public Trust Interests, and Private Property Rights Along Laurentian Great Lakes Shores","authors":"R. Norton, Nancy H. Welsh","doi":"10.36640/mjeal.8.2.reconciling","DOIUrl":"https://doi.org/10.36640/mjeal.8.2.reconciling","url":null,"abstract":"The United States has a north coast along its ‘inland seas’—the Laurentian Great Lakes. The country enjoys more than 4,500 miles of Great Lakes coastal shoreline, almost as much as its ocean coastal shorelines combined, excluding Alaska. The Great Lakes states are experiencing continued shorefront development and redevelopment, and there are growing calls to better manage shorelands for enhanced resiliency in the face of global climate change. The problem is that the most pleasant, fragile, and dangerous places are in high demand among coastal property owners, such that coastal development often yields the most tenacious of conflicts between public interests and private property rights. Indeed, those conflicts implicate fundamental debates over the state’s authorities and prerogatives to regulate privately owned shoreland (the police power), the public’s interest in coastal resources (the public trust doctrine), and private property owners’ rights to use and to exclude others from their shorelands (referred to collectively here as the private property doctrine).\u0000\u0000While not tidal, standing water levels of the Great Lakes fluctuate over time substantially. As a result, the lakes have beaches much like ocean coasts, and the public trust doctrine is aptly applied to them, albeit awkwardly. All of the eight Great Lakes states have long acknowledged the applicability of the public trust doctrine to their Great Lakes bottomlands and shorelands. In doing so, they have accepted the now-conventional understanding that the doctrine originated in ancient Roman law.\u0000\u0000Even so, recent critiques of the public trust doctrine assert that it has been misinterpreted and that its historical pedigree is not so strong or aptly applied to American coasts, especially along Great Lakes coasts. These critiques do not address the historical pedigree and robustness of the police power doctrine, or, more importantly, the pedigree and robustness of contemporary notions of private property rights. If the public trust doctrine is indeed lacking upon reconsideration, how does it fare in comparison to these other doctrines?\u0000\u0000This Article lays the foundation for an extended study of the public trust doctrine as it applies to Great Lakes shores. We provide an overview of the public trust doctrines of all eight Great Lakes states, noting for illustration and, where appropriate, particulars for the State of Michigan, which enjoys more than 60% of the combined U.S. Great Lakes coastline. To explain our motivations in undertaking this study, the Article first briefly reviews the importance of the lakes to the State of Michigan and the other Great Lakes states more broadly and then frames shoreland management as one of the resource management imperatives those states face. The Article then reviews the historical origins, the contemporary contours, and the ongoing debates surrounding the police power, public trust, and private property doctrines separately. Building on that foundation, we","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"14 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":"122607854","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":"Reworking the Revolution: Treasury Rulemaking & Administrative Law","authors":"David M Berke","doi":"10.36640/mjeal.7.2.reworking","DOIUrl":"https://doi.org/10.36640/mjeal.7.2.reworking","url":null,"abstract":"How administrative law applies to tax rulemaking is an open and contested question. The resolution of this question has high stakes for the U.S. tax system. The paradigm is shifting away from so-called “tax exceptionalism”—where Treasury action is considered effectively exempt from the Administrative Procedure Act (the “APA”) and related administrative law doctrines. This paradigm-shift is salutary. However, currently prevailing anti-exceptionalist theory—an administrative framework for tax that is rapidly gaining credence within both the federal judiciary and the legal academy—threatens to destabilize the U.S. tax system. This formalistic approach to administrative law in tax rulemaking has the potential to invalidate a wide swath of existing Treasury regulations and to preclude the timely promulgation of new tax rules.\u0000\u0000This Article argues that these two existing theories of tax administration— exceptionalism and anti-exceptionalism—are inadequate, often for complementary reasons. This Article’s critique then supports its proposals for tax rulemaking processes that comply with the APA, but in a workable manner that does not upend established tax law. These proposals provide an intellectual and practical middle ground between the exceptionalists and anti-exceptionalists.","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"7 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":"133913122","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 the Return of the Administrative Conference of the United States Means for Administrative Law","authors":"P. Paul","doi":"10.36640/mjeal.1.1.what","DOIUrl":"https://doi.org/10.36640/mjeal.1.1.what","url":null,"abstract":"Administrative law, writ large, is about the way agencies behave, and how other institutions and the public react to that behavior. By promulgating rules, adjudicating cases and claims, enforcing statutes, providing guidance, collaborating with interest groups, exercising discretion, and so forth, agencies manage and implement the business of government.1 They do this under the auspices of the Executive Branch, but the other branches assert authority over the agencies as well. Congress does so by legislating, budgeting, and overseeing, while the courts do so by interpreting statutes and requiring rational behavior from agencies. These important and essential activities fill many law school publications with statutes, cases, and rules. But the branches that produce this body of law are institutionally constrained—they have difficulty testing hypotheses or experimenting with alternatives before statutes are enacted, cases are decided, or rules are promulgated.","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"2 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":"131518162","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":"We Need Protection from Our Protectors: The Nature, Issues, and Future of the Federal Trust Responsibility to Indians","authors":"D. I. Rey-Bear, M. Fletcher","doi":"10.36640/mjeal.6.2.we","DOIUrl":"https://doi.org/10.36640/mjeal.6.2.we","url":null,"abstract":"The federal trust responsibility to Indians essentially entails duties of good faith, loyalty, and protection. While often thought of as unique to federal Indian policy, it developed from and reflects common law principles of contracts, property, trusts, foreign relations/international law, and constitutional law. However, several issues preclude a greater understanding and implementation of the federal trust responsibility. These include Executive Branch efforts to avoid liability, neocolonial judicial activism, and episodic congressional attention. Enactment of legislation to reaffirm and modernize the federal trust responsibility through greater self-determination, integration, elevation, oversight, and funding should help overcome these issues to improve federal Indian policy.","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"3 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":"114647957","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 Legacy of Professor Joe Sax","authors":"F. Krupp","doi":"10.36640/mjeal.4.1.legacy","DOIUrl":"https://doi.org/10.36640/mjeal.4.1.legacy","url":null,"abstract":"I grew up as the environmental movement did, in the 1960s and 1970s. In college at Yale, engineering professor Charlie Walker became my mentor and taught me that there are practical solutions for almost all environmental problems. This hopeful point of view inspired me to devote myself to the subject, first as an academic pursuit. As I neared graduation and was trying to decide on a path, Professor Walker handed me a book: Defending the Environment by Joseph Sax.1 That book was visionary in its description of private citizens’ ability to protect and defend the environment through the legal system. It furthered my view that these problems could be solved and instilled in me the desire to study environmental law from Professor Sax at the University of Michigan. But I was not admitted to Michigan and instead spent my first year of law school at the University of Virginia, before again applying to Michigan as a transfer student. At the time, it was uncommon to transfer between law schools and usually required fairly serious exigent circumstances. To my mind, being able to study environmental law under Professor Sax was such a circumstance. Professor L. Hart Wright, University of Michigan’s famous former tax professor, agreed, and I was off to Michigan, one of eight transfer students that year.","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"150 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":"121253099","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":"Unpacking EME Homer: Cost, Proportionality, and Emissions Reductions","authors":"D. Farber","doi":"10.36640/mjeal.4.2.unpacking","DOIUrl":"https://doi.org/10.36640/mjeal.4.2.unpacking","url":null,"abstract":"Interstate air pollution can prevent even the most diligent downwind state from attaining the air quality levels required by federal law. Allocating responsibility for emissions cuts when multiple upwind states contribute to downwind air quality violations presents a particularly difficult problem. Justice Ginsburg’s opinion for the Court in EPA v. EME Homer City Generator, L.P., gives EPA broad discretion to craft regulatory solutions for this problem. Although the specific statutory provision at issue was deceptively simple, the underlying problem was especially complex because of the large number of states involved. Indeed, neither the majority opinion nor the dissent seems to have fully grasped how allocation would work even in some of the simplified numerical examples discussed by the justices. Although the specific question before the Court is now settled, the Court’s holding has continuing ramifications. It will shape further development of EPA’s ongoing efforts to deal with interstate pollution, but it also has broader implications for the role of cost under federal pollution laws. In addition, the decision may have significant implications regarding EPA’s flexibility in mandating state plans to reduce carbon emissions under sections 111(d) and 115 of the Clean Air Act.","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"46 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":"124448730","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 Wild and Scenic Rivers Act at 50: Overlooked Watershed Protection","authors":"M. Blumm, Max Yoklic","doi":"10.2139/ssrn.3318533","DOIUrl":"https://doi.org/10.2139/ssrn.3318533","url":null,"abstract":"The Wild and Scenic Rivers Act (WSRA) marked its fiftieth anniversary in 2018 without much fanfare. The WSRA has been somewhat overshadowed by the Wilderness Act, which preceded it by four years, and by the National Environmental Policy Act and the pollution control statutes which followed in the 1970s. But the WSRA was a significant conservation achievement, has now extended its protections to over 200 rivers, and has the potential to provide watershed protection to many more in the future. This article explains the statute and its implementation over the last half-century as well as a number of challenges to fulfilling its laudable goals of protecting free-flowing rivers, their water quality, and their “outstandingly remarkable values.”\u0000\u0000We make a number of suggestions to the managing agencies and to Congress if the WSRA’s achievements over the next half-century are to match the last fifty years, including reviving congressional interest in study rivers, updating managing agencies’ river plans to focus on non-federal lands within river corridors, and ensuring that those river plans provide the watershed protection Congress envisioned when it included a significant amount of riparian land within WSRA river corridors. We also call for a new emphasis on rivers that should be studied for their restoration potential and for more states to take advantage of the statute’s unusual pathway for state-designated rivers to gain WSRA protections.\u0000\u0000A postscript briefly explains a recent congressional proposal to expand the WSRA system, and an appendix catalogues all 226 WSRA river segments designated during the statute’s first fifty years.","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":"123948071","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":"Exploring Alternatives to the \"Consultation or Consent\" Paradigm","authors":"J. Searle","doi":"10.36640/mjeal.6.2.exploring","DOIUrl":"https://doi.org/10.36640/mjeal.6.2.exploring","url":null,"abstract":"The Dakota Access Pipeline brought the question of what adequate tribal consultation requires to the forefront. Some would argue that consultation is a weak standard and that only adopting a new standard of free, prior, and informed consent can guarantee tribes greater control and respect. However, the “consultation or consent” paradigm does not take into account important sources of law that do not fit under “consultation” or “consent” and yet could be valuable in strengthening tribes’ claims in the absence of a consent standard.","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":"130516577","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}