Michigan's Environmental Protection Act of 1970: Progress Report (original) (raw)
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Litigating to Regulate: Massachusetts v. Environmental Protection Agency
2007
a 5-4 vote in Massachusetts v. Environmental Protection Agency, 1 the Supreme Court took yet another significant step away from the Framers' vision of the judiciary and toward a politicized Supreme Court sitting as a super-legislature and super-regulator. The Court substituted its judgment for that of the politically accountable branches of the federal government. By dramatically loosening the rules of standing, the Court invited those unhappy with the federal government's failure to regulate in a particular manner in any substantive area to use the federal courts to force federal agencies to regulate. In short, the Court encouraged interest groups to seek to obtain from the courts what they could not from agencies or Congress. The Court rolled out the welcome mat for state governments unhappy with a federal agency's decision, creating from whole cloth a new rule of standing that allows states to gain a hearing in federal court with only the thinnest of allegations of harm. In doing so, the Court undermined the legal rules of standing. The majority also supported its decision with a one-sided and unsophisticated account of the scientific evidence for the petitioners' claims concerning climate change, needlessly inserting the courts into a scientific dispute that, as the majority's opinion demonstrated, they are woefully unprepared to handle. Unfortunately Massachusetts v. EPA is but one piece of a broader trend toward regulation through litigation. A wide range of interest
The Future of Environmental Rule of Law Litigation (2000 Garrison Lecture)
Pace Environmental Law Review, 2002
I. Introduction: Environmental Law as Litigation What is environmental law? There is no easy answer to this simple but complex question. The most common answer is that environmental law consists of the regulatory programs that have been enacted by Congress and the states since 1969 and the cases interpreting those statutes and regulations. A slightly more expansive answer includes post-New Deal administrative law of increased citizen access to the courts and heightened judicial scrutiny of resource allocation decisions, and common law tort remedies for pollution damage. Put differently, environmental law could be defined as the law found in the standard law school casebooks. 1 These are correct, but ultimately unsatisfactory answers because the mass of statutes, administrative regulations,
1996
The Tenth Circuit handed down several important decisions in the field of environmental law between September 1994 and September 1995.' This Survey focuses on two substantial decisions on environmental law issues. The first case, United States v. Colorado & Eastern Railroad, 2 discussed the complex, and as yet unsettled, distinction between cost recovery and contribution as governed by the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980.? Secondly, Laguna Gatuna, Inc. v. Browner,' a case of first impression in the Tenth Circuit, treated the issue of pre-enforcement judicial review of a Clean Water Act (CWA) 5 compliance order issued by the Environmental Protection Agency (EPA). 6 Part I of this Survey discusses the Colorado & Eastern decision in light of the statutory and case law that preceded it. Part II examines Laguna Gatuna. Finally, this Survey argues that these two decisions have affected environmental law inconsistently, even though both case opinions attempt to follow congressional intent. On the one hand, the Tenth Circuit eroded the structure of CERCLA with its holding in Colorado & Eastern, and created substantial legal uncertainty in future cost recovery and contribution actions. On the other hand, the Tenth Circuit's holding in Laguna Gatuna provides needed legal certainty by barring pre-enforcement judicial review of EPA compliance orders under the CWA. 1. Other Tenth Circuit decisions in the survey period relating to environmental law but not discussed include: Leadville Corp. v. United States Fidelity & Guar. Co., 55 F.3d 537 (10th Cir. 1995) (affirming dismissal of an indemnity claim for failure to abide by notice provisions of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) liability insurance policy); Quaker State Minit-Lube, Inc. v. Fireman's Fund Ins. Co., 52 F.3d 1522 (10th Cir. 1995) (interpreting a pollution exclusion clause); Pueblo of Scandia v. United States, 50 F.3d 856 (10th Cir. 1995) (reversing and remanding summary judgment against a Native American claim for bad faith failure to preserve Forest Service land used for cultural and religious purposes as required by the National Historic Preservation Act); Red Panther Chem. Co. v. Insurance Co. of N. Am., 43 F.3d 514 (10th Cir. 1994) (resolving an interpretation dispute regarding an insurance policy excluding pollution); Brever v. Rockwell Int'l Corp., 40 F.3d 1119 (10th Cir. 1994) (reversing dismissal of a federal whistleblowing claim stemming from the FBI investigation of the Rocky Flats Superfund site in Colorado). 2. 50 F.3d 1530 (10th Cir. 1995). 3. 42 U.
Taking enforcement on its own terms: EPA's heavy-duty diesel engine litigation
Regulation & Governance, 2011
The authors of Regulation by Litigation characterize the US Environmental Protection Agency (EPA)'s enforcement action against diesel engine manufacturers as an effort to achieve by litigation what the Agency was unable to achieve by regulation: immediate reductions in emissions of nitrogen oxides. By substituting litigation for rulemaking, the authors of the book argue, the Agency avoided political and judicial accountability and put itself on a suboptimal policy track. This comment argues that the diesel engine litigation may be better understood as what it purported to be, an enforcement action, not rulemaking in disguise. The authors' characterization of the litigation is questionable on at least two grounds. First, it fails to fully appreciate the distinct functions of enforcement and policymaking in a regulatory setting. The goal of enforcement is not primarily to make policy, but to enforce it -to punish violators, deter future violations, and mitigate harms caused by violations. That goal supplies the proper measure of the litigation's success. Second, in applying public choice analysis to create a story of agency circumvention of appropriate rulemaking procedures, the authors' account misses key features of how agency enforcement decisions are made -and were made in this litigation. This latter shortcoming raises broader questions about the difficulties of applying public choice analysis in complex institutional settings.
Regulating by Litigation: The EPA\u27s Regulation of Heavy-Duty Diesel Engines
2004
In this Article, the authors provide a case study of heavy-duty diesel engine regulation under the Clean Air Act, which reveals how the Environmental Protection Agency (EPA) chooses various means of regulation at different times. The Article relates the EPA\u27s choices to the incentives the agency faces. The Article also shows how the different forms of regulatory activity influence agency regulations. Finally, the Article concludes with a critique of regulation-by-litigation as a means of imposing substantive rules
The Availability of State Environmental Citizen Suits
Natural Resources and Environment, 2004
This article examines the prevalence and limitations of state environmental citizen enforcement provisions in the context of compliance with environmental requirements. It observes that of the four legs of environmental enforcement-- federal, state, federal citizen suits, and state citizen suits--the latter are the most underutilized. Nonetheless, owing to declines in federal and state governmental enforcement efforts, coupled with increasing statutory, constitutional, and practical challenges facing federal citizen suit litigation, the time may be ripe for the ascendancy of state environmental citizen suits. Citizen suits to enforce state laws are part of a four-legged table designed to ensure compliance with federal and state environmental laws. The first leg is federal enforcement by EPA. To compel compliance with federal environmental laws, EPA has three choices to address noncompliance. First, it can bring administrative actions--that is, seek compliance short of filing a federal lawsuit. This usually means sending a notice of violation, and that failing, issuing an administrative order seeking compliance and/or the payment of an administrative penalty.