2007 Year in Review: Constitutional Law

This chapter summarizes recent developments at the intersection of environmental, energy and natural resources law and the U.S. Constitution. Constitutional Law is playing an ever more prominent role in environmental law. In 2005, nearly two out of three federal environmental cases contained a constitutional issue. In 2005 the U.S. Supreme Court decided several important environmental cases involving constitutional questions, including those under the 5th Amendment and the Supremacy Clause. The Court is due to decide more cases that implicate environmental law during the 2005-06 term, including those containing threshold questions about the extent to which Congress can regulate activities that affect the environment under the Commerce Clause. The chapter has seven parts. Part One reports developments concerning congressional and state authority under the Commerce Clause, including last term’s Gonzalez v. Raich, and two cases before the Court this term. Parts Two, Three and Four examine developments in the federal-state relationship under environmental law and the Constitution, including the 10th and 11th Amendments, and the Supremacy Clause. Part Five explains two cases the Court decided under the 5th Amendment, Kelo and Lingle. Parts Six and Seven address developments under Article III (standing) and the Due Process Clause.

Do people have a right to clean air, safe drinking water, and a healthy environment? Fifty years ago, the concept of a human right to a healthy environment was viewed as a novel, even radical, idea...

I. INTRODUCTION II. HISTORY OF CLIMATE CHANGE A. The Evolution of Climate Change Policy B. The Domestic Agenda for Combating Climate Change III. CONFRONTING ARTICLE III STANDING A. Developing Standing Jurisprudence B. The Effect of Lujan C. Should the Political Branches Decide? IV. EXAMINING THE CLEAN AIR ACT A. The Chevron Test B. An Analysis of the D.C. Circuit's Opinions in Massachusetts v. EPA 1. Judge Randolph's Majority Opinion 2. Judge Sentelle's Concurrence and Dissent 3. Judge Tatel's Dissent V. PROMOTING REGULATION THROUGH THE CLEAN AIR ACT A. Article III Standing 1. The Akins/Lujan Standard 2. Proposing New Standing Requirements for Global Warming Disputes B. Interpreting the Clean Air Act Provisions 1. Examining Congressional Intent 2. The D.C. Circuit's Mischaracterization of the Clean Air Act C. The Likely Outcome of Massachusetts v. EPA VI. CONCLUSION I. INTRODUCTION On October 20, 1999, the International Center for Technology Assessment (ICTA) and a number of environmental groups petitioned the Environmental Protection Agency (EPA) to regulate certain greenhouse gas (GHG) emissions from new motor vehicles and engines. (2) The organizations argued that section 202(a)(1) of the Clean Air Act (CAA) (3) provided the EPA Administrator with mandatory discretion to regulate GHG emissions. (4) Petitioners contended that statements made on the EPA's website and other documents concluded that the emissions they sought to control may reasonably be anticipated to endanger the public welfare. (5) They also claimed that motor vehicle emissions from the GHGs could be significantly reduced by increasing the fuel economy of vehicles, eliminating tailpipe emissions altogether, or using other current and developing technologies. However, the EPA concluded that it did not possess the legal authority to regulate the GHG emissions and denied their petition. (6) In Massachusetts v. Environmental Protection Agency, (7) the D.C. Circuit addressed the issue of whether the Clean Air Act authorized the EPA Administrator to control GHG emissions of new motor vehicles and engines. A three-judge panel voted 2-1 against reviewing the EPA's decision that it lacked authority under federal law to regulate GHGs. (8) The majority held that the Administrator properly exercised his discretion under section 202(a)(1) in denying the petition for rulemaking. (9) In an en banc hearing, the D.C. Circuit rejected a petition for rehearing. (10) Late last term, the Supreme Court granted certiorari to hear arguments to resolve this controversy. (11) This comment asserts that the CAA authorizes the EPA to regulate GHG emissions from new motor vehicles. The Supreme Court's decision in Chevron USA, Inc. v. Natural Resources Defense Council, Inc. (12) held that if a statute is silent or ambiguous with respect to a specific issue, the question becomes whether the agency's action involves a permissible construction of the statute. Part II of this comment discusses the historical background of climate change policy regarding GHG emissions. Part III focuses on the various environmental law cases addressing the issue of Article III standing. Part IV analyzes the Chevron test and the three opinions by the Massachusetts v. Environmental Protection Agency judges. Part V advances the belief that section 202(a)(1) of the CAA provides mandatory authority and predicts that the Supreme Court will decide that the petitioners possess proper standing and that the EPA is mandated under section 202(a)(1) to regulate GHG emissions. This prediction is based on the Court's jurisprudence regarding Article III standing and the Chevron doctrine, respectively. Part VI concludes that failure to control the production of GHG emissions from new motor vehicles and engines limits the impact of the CAA to protect the public welfare from threats to the environment. …

Education on environmental law

Indian tribes, because of their distinctive regulatory authority and significant connection to the environment, possess unique capacities to innovate within the field of environmental law in the over 56 million acres that makes up Indian country. In this first scholarly work to address this aspect of tribal environmental law, this article advocates for the idea of tribes as "laboratories" for examining environmental regulation. Tribes enact environmental regulation by two primary means – in their capacity as "tribes as states" (TAS) and in their capacity as inherent sovereigns – both of which create unparalleled space for innovation. Moving first to the TAS setting, the article examines synergies between federal and tribal environmental law. Following an expansive discussion of laws adopted by several tribes under their TAS authority, the article next turns to a discussion of the implications of tribal environmental innovations. Here, the article begins by looking at the emerging trends in tribal adaptation of federal environmental law. The article turns next to a look at tribal environmental law adopted purely as a result of tribal inherent sovereignty. Here, the article begins the foundational discussion of how tribes may take lessons learned from the TAS setting and, by the exercise of inherent sovereignty, truly be innovators in the development of environmental law. The article then develops some initial thoughts of how tribes, the states and the federal government may benefit from innovations occurring within the tribal environmental laboratory. Tribal environmental law is particularly exciting given its ability to transcend federal environmental law. Ultimately, the article concludes that, by enacting environmental laws to meet their unique tribal needs, many tribes are creating and innovating in the field under their unique powers as separate sovereigns within the United States, truly acting as laboratories of the future.

International Environmental Law - Greenhouse Gas Emission from International Aviation: Legal and Policy Challenges by Alejandro José PIERA. The Hague: Eleven International Publishing, 2015. xx + 480 pp. Hardcover: € 90. - Volume 6 Issue 2

Major US electric utility climate pledges have the potential to collectively reduce power sector emissions by one-third

Mitigating Curtailment and Carbon Emissions through Load Migration between Data Centers

Although environmental law springs from deep roots in centuries of common law, during the last forty years in particular it has grown into a well-established and important legal field in the United States with enormous practical consequences. Maturity, however, has also made it notoriously complex, and environmental law's overlapping statutory schemes and inconsistent federal and state programs have sparked recurring conflict, controversy, and criticism. This fractured and complicated network of environmental laws and programs has become increasingly difficult to modify or update to account for emerging environmental concerns. As a result, numerous experts, scholars, and advocacy groups have offered proposals to reform U.S. environmental laws, but these initiatives have failed to produce significant statutory advances or implementation. In fact, Congress has not enacted major new environmental legislation since its passage of the Clean Air Amendments of 1990, and existing federal environmental statutes have remained essentially unchanged for over twenty years. ... This article explores whether U.S. environmental law needs either a Restatement or other Project that would offer a comprehensive analysis, and it overviews possible reasons why the ALI has not previously undertaken such a Project. Second, we report on an ongoing effort by a workgroup of ALI members to define a potential environmental or natural resource law Project that might offer the best opportunity for clarification or reform. This workgroup of nearly fifty ALI members includes leading environmental practitioners and academics, and it has proposed two carefully defined and limited Projects in the environmental law area. If the ALI undertakes one of the more focused Projects suggested by the workgroup, however, the Institute would not foreclose its ability to develop a broader Principles of Environmental Law or a full Restatement in the future. Third, we assess arguments that any comprehensive analysis of environmental law by the ALI might do more harm than good because it would freeze environmental and natural resource law at a point where it still needs further fundamental reform. Finally, we discuss possible future steps to facilitate comprehensive work by the ALI on environmental issues.

* Any views or opinions expressed in this report are those of the authors in their personal capacities and do not represent the views of their organizations, including the Department of State or the U.S. Government. This report is jointly submitted on behalf of the International Environmental Law Committee of the ABA Section on International Law (SIL) and the International Environmental and Resources Law Committee of the Section on Environment, Energy, and Resources Law (SEER) by Vice-Chairs and Co-Editors Andrew Schatz, Associate with DLA Piper LLP (US), and Sara Vinson, Environmental Claims Associate at ACE Group. Stephanie Altman, Attorney Advisor in the Office of General Counsel, International Law Section, National Oceanic and Atmospheric Administration (NOAA), contributed on marine environmental protection. Derek Campbell, Attorney-Advisor, Office of General Counsel, International Law Section, NOAA, contributed on marine conservation and trade and the environment. Lee A. DeHihns, III, Senior Counsel with Alston & Bird LLP, and Ann Powers, Associate Professor of Law at Pace University Law School contributed on sustainability. Joseph W. Dellapenna, Professor of Law at Villanova University Law School, authored the section on water resources. Royal Gardner, Professor of Law and Director, Institute for Biodiversity Law and Policy, Stetson University College of Law, contributed on the Ramsar Convention. David Gravallese, Attorney-Adviser in the Office of the Legal Adviser, U.S. Department of State, contributed on ozone. Richard A. Horsch, a Partner with White & Case LLP, contributed on hazardous waste developments. Finance-related developments are incorporated throughout and were contributed by David Hunter, Professor, and Erika Lennon, Coordinator of the Program on International and Comparative Environmental Law, at American University Washington College of Law. Erica Lyman, Clinical Professor of Law at Lewis & Clark Law School, contributed on wildlife and biological resources. Thomas Parker Redick, with Global Environmental Ethics Counsel, contributed on international regulation of biotechnology. Andrew Schatz contributed on climate change. R. Justin Smith, Assistant Chief, Law and Policy Section, Environment and Natural Resources Division, U.S. Department of Justice, contributed on international environmental litigation. 1. For developments during 2011, see Andrew Schatz et al., International Environmental Law, 46 INT’L LAW. 419 (2012). For developments during 2010, see David R. Downes et al., International Environmental Law, 45 INT’L. LAW. 409 (2011).

Energy-related activities are a major contributor of greenhouse gas (GHG) emissions. A growing body of knowledge clearly depicts the links between human activities and climate change. Over the last century the burning of fossil fuels such as coal and oil and other human activities has released carbon dioxide (CO2) emissions and other heat-trapping GHG emissions into the atmosphere and thus increased the concentration of atmospheric CO2 emissions. The main human activities that emit CO2 emissions are (1) the combustion of fossil fuels to generate electricity, accounting for about 37% of total U.S. CO2 emissions and 31% of total U.S. GHG emissions in 2013, (2) the combustion of fossil fuels such as gasoline and diesel to transport people and goods, accounting for about 31% of total U.S. CO2 emissions and 26% of total U.S. GHG emissions in 2013, and (3) industrial processes such as the production and consumption of minerals and chemicals, accounting for about 15% of total U.S. CO2 emissions and 12% of total ...

The Regulation Charade

The U.S. Congress charged the National Academies with conducting a review of the Internal Revenue Code to identify the types of and specific tax provisions that have the largest effects on carbon and other greenhouse gas emissions and to estimate the magnitude of those effects. To address such a broad charge, the National Academies appointed a committee composed of experts in tax policy, energy and environmental modeling, economics, environmental law, climate science, and related areas. For scientific background to produce Effects of U.S. Tax Policy on Greenhouse Gas Emissions, the committee relied on the earlier findings and studies by the National Academies, the U.S. government, and other research organizations. The committee has relied on earlier reports and studies to set the boundaries of the economic, environmental, and regulatory assumptions for the present study. The major economic and environmental assumptions are those developed by the U.S. Energy Information Administration (EIA) in its annual reports and modeling. Additionally, the committee has relied upon publicly available data provided by the U.S. Environmental Protection Agency, which inventories greenhouse gas (GHG) emissions from different sources in the United States. The tax system affects emissions primarily through changes in the prices of inputs and outputs or goods and services. Most of the tax provisions considered in this report relate directly to the production or consumption of different energy sources. However, there is a substantial set of tax expenditures called broad-based that favor certain categories of consumption-among them, employer-provided health care, owner-occupied housing, and purchase of new plants and equipment. Effects of U.S. Tax Policy on Greenhouse Gas Emissions examines both tax expenditures and excise taxes that could have a significant impact on GHG emissions.

Taking Stock of Strategies on Climate Change and the Way Forward: A Strategic Climate Change Framework for Australia

Nature management and resources law (that are united by environmental law) form a comprehensive and integrated super-branch of Russian law and legislation. The regulation of organization of sustainable environmental management is inseparable from environmental regulation. Therefore their antagonistic opposition and baseless differentiation are inadmissible. The regulation of use of natural resources (natural resources law) constantly interacts with environmental regulation (environmental management law); the environmental law is intended not so much to differentiate these branches and sub-branches of environmental super-branch as to combine them. The environmental law should not be boundless, but it should have its own subject, methods, systems, affecting other social phenomena through their ecologization.