Michigan Journal of Environmental & Administrative Law最新文献

{"title":"Making Bureaucracies Think Distributively: Reforming the Administrative State with Action-Forcing Distributional Review","authors":"K. Tsuda","doi":"10.36640/mjeal.7.1.making","DOIUrl":"https://doi.org/10.36640/mjeal.7.1.making","url":null,"abstract":"This Article proposes that agencies analyze the distributional impacts of major regulatory actions, subject to notice-and-comment procedures and judicial review. The proposal responds to the legitimacy crisis that the administrative state currently faces in a period of widening economic inequality. Other progressive reform proposals emphasize the need for democratization of agencies. But these reforms fail to address the two fundamental pitfalls of bureaucratic governance: the “knowledge problem”—epistemic limitations on centrally coordinated decision making—and the “incentives problem”—the challenge of aligning the incentives of administrative agents and their political principals.\u0000\u0000A successful administrative reform must address both problems. Looking to the environmental context, this Article proposes adapting the approach taken in the National Environmental Policy Act of 1969 (NEPA) to confront the contemporary administrative legitimacy crisis. It considers a hypothetical “Distributive Impacts Review Act,” explaining what the statutory scheme would look like and detailing how it would work. The Article concludes by reflecting on potential distributional review’s appeal both to the progressive egalitarians, and to champions of efficient government.","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"77 ","pages":"0"},"PeriodicalIF":0.0,"publicationDate":"1900-01-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"134190698","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":"Litigating for the Homeland: An Indian Treaty Framework to Climate Litigation in the Wake of Juliana","authors":"Evan Neustater","doi":"10.36640/mjeal.10.1.litigating","DOIUrl":"https://doi.org/10.36640/mjeal.10.1.litigating","url":null,"abstract":"Climate change is an increasingly pressing issue on the world stage. The federal government, however, has largely declined to address any problems stemming from the effects of climate change, and litigation attempting to force the federal government to take action, as highlighted by Juliana v. United States, has largely failed. This Note presents the case for a class of plaintiffs more likely to succeed than youth plaintiffs in Juliana—federally recognized Indian tribes. Treaties between the United States and Indian nations are independent substantive sources of law that create enforceable obligations on the federal government. The United States maintains a trust relationship with federal Indian tribes, and that relationship obliges a duty of protection upon the federal government. This Note argues that those obligations may support climate change claims under the theory that the government, by failing to address climate change, has failed its duty of protection under its treaties.","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"19 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":"124844908","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":"Beyond Localism: Harnessing State Adaptation Lawmaking to Facilitate Local Climate Resilience","authors":"Sarah J. Adams-Schoen","doi":"10.36640/mjeal.8.1.beyond","DOIUrl":"https://doi.org/10.36640/mjeal.8.1.beyond","url":null,"abstract":"Notwithstanding the need for adaptation lawmaking to address a critical gap between climate-change related risks and preparedness in the United States, no coherent body of law exists that is aimed at reducing vulnerability to climate change. As a result of this gap in the law, market failures, and various “super wicked” attributes of hazard mitigation planning, local communities remain unprepared for present and future climate-related risks. Many U.S. communities continue to employ land-use planning and zoning practices that, at best, fail to mitigate these hazards, and, at worst, increase local vulnerability. Even localities that have implemented otherwise robust adaptation plans tend to focus almost entirely on accommodation strategies, even when retreat strategies are warranted. The result is the continued use of land-use planning and zoning practices that allow for intensified land uses in risk-prone areas. Such maladaptive development carries with it current and future costs from locking in infrastructure and patterns of development that place people and property in harm’s way.\u0000\u0000When addressing this preparedness gap, many scholars focus on flaws in the federal flood insurance and disaster assistance programs. This Article builds on a small but growing literature on the potential for land use and other local lawmaking regimes to proactively facilitate climate resilience, and the barriers local governments face that cause them to continue to promote maladaptive development.\u0000\u0000Using New York’s recently enacted adaptation law as a case study, I ask whether state mandates and incentives, although facially limiting of local autonomy, are nevertheless needed to empower local governments to overcome otherwise intractable obstacles to decreasing the intensity of development in vulnerable areas. I conclude by identifying specific attributes of state adaptation lawmaking that may be needed to support and encourage local government efforts to promote resilience. Ultimately, I conclude that, by helping local governments overcome barriers to robust adaptive development, state lawmaking has the potential to empower local governments to proactively move people and infrastructure out of harm’s way.","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"57 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":"130458930","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":"Deruglatory Riders Redux","authors":"T. McGarity","doi":"10.36640/mjeal.1.1.deregulatory","DOIUrl":"https://doi.org/10.36640/mjeal.1.1.deregulatory","url":null,"abstract":"Soon after the 2010 elections placed the Republican Party in control of the House of Representatives, the House took up a number of deregulatory bills. Recognizing that deregulatory legislation had little chance of passing the Senate, which remained under the control of the Democratic Party, or of being signed by President Obama, the House leadership reprised a strategy adopted by the Republican leaders during the 104th Congress in the 1990s. The deregulatory provisions were attached as riders to much-needed legislation in an attempt to force the Senate and the President to accept the deregulatory riders to avoid the adverse consequences offailing to pass the more important bills. This Article examines the deregulatory riders of the 104th Congress and the experience to date with deregulatory riders during the 112th Congress. Although riders are not inherently good or evil, the Article concludes that riders, like the deregulatory riders examined here, that advance narrow special interests over the general public welfare represent bad public policy. The Article examines several methods for discouraging deregulatory riders, but concludes that none of them are likely to be implemented until the public signals its strong disapproval of deregulatory riders.","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"47 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":"127224887","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":"Tiny Things with a Huge Impact: The International Regulation of Nanomaterials","authors":"Dario Picecchi","doi":"10.36640/mjeal.7.2.tiny","DOIUrl":"https://doi.org/10.36640/mjeal.7.2.tiny","url":null,"abstract":"Mounting evidence demonstrates that nanotechnology and nanomaterials impose severe environmental risks. To minimize these risks, the usage and handling of certain nanomaterials could be addressed under existing treaties such as the Rotterdam Convention, the Stockholm Convention, and the Basel Convention. However, even if existing treaties govern the handling of certain nanomaterials, no treaty effectively regulates all the specific challenges that nanomaterials pose to the global environment. Consequently, a completely new regulatory instrument is required. An international organization could take responsibility for developing and promoting such a nanospecific international legal framework. By incorporating the precautionary principle, a technology transfer, research cooperation, and a duty to promote transparency, the new legal framework would provide adequate measures to protect the environment from nanomaterials and their risks.","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"60 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":"133677961","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":"Abandoned but Not Forgotten: Improperly Plugged and Orphaned Wells May Pose Serious Concerns for Shale Development","authors":"Bret Wells, T. Hester","doi":"10.36640/mjeal.8.1.abandoned","DOIUrl":"https://doi.org/10.36640/mjeal.8.1.abandoned","url":null,"abstract":"This Article addresses the intersection of oil and gas law and environmental law on a topic that has profound significance for the nation’s oil industry and for the environment. In this regard, the Permian Basin is experiencing a renaissance that has fundamentally impacted oil production in the United States. Horizontal drilling and hydraulic fracturing now allow the industry to produce in the Permian Basin’s unconventional shale formations in ways that were unimaginable a decade ago. But, the hot shale plays within the Permian Basin exist above conventional fields that are littered with a century’s worth of abandoned wells. Fracturing new wells near improperly abandoned wells creates a risk of environmental pollution as the fracturing of the shale allows hydrocarbons to migrate within the formation, potentially to an improperly abandoned well.\u0000\u0000The American Petroleum Institute (API) recognizes the environmental pollution risks associated with hydraulically fracturing close to an abandoned well and has set forth a detailed report on the best practices that an operator could employ to mitigate this risk, but that proposal overly relies on operator discretion and judgment and lacks transparency to potentially affected parties. The Environmental Defense Fund has issued a model regulatory framework, but that report overly relies on operator actions and bright-line standards. A growing number of state agencies in oil producing states around the nation have issued regulations, but there is considerable divergence in the adopted standards. The academic work on this topic is sparse to non-existence. Thus, this Article fills an important void in the literature at an important moment.\u0000\u0000The goal of any regulatory regime should be to ensure sustainable energy development occurs in a manner that adequately addresses the environmental concerns posed by modern development activities. Because contamination and collateral consequences of pollution can have far-reaching impacts, the public has a vital public policy interest that the regulatory regimes that govern this development require the industry to utilize best practices. The Article proposes that the regulatory agency should use its expertise and operator supplied information to make a fact-based determination of the area of fracturing interest as part of the permitting process for any new well that will be hydraulically fractured. The regulatory agency then would utilize its existing data on well locations to determine what existing wells are sufficiently close to the new well that will be hydraulically fractured and then will set forth requirements for the operator to investigate that well. The regulatory agency can then set forth a remediation proposal for the operator to perform. The Article uses the State of Texas as a model for its suggestions.\u0000\u0000The framework set forth in this Article also affords operators with an opportunity to provide their solutions to any regulatory concerns, and also provides oth","PeriodicalId":401480,"journal":{"name":"Michigan Journal of Environmental & Administrative Law","volume":"39 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":"116964901","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}