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Environmental Law

Cooperation or Coercion on Climate: Is the EPA Trying to Deputize the States? - Podcast

Federalism & Separation of Powers Practice Group Podcast
Michael S. Greve, Mario Loyola, Bryan W. Shaw August 04, 2014

It has been argued that EPA's recently announced carbon emissions rule is just the latest attempt to draw states into the implementation of its regulations. The Supreme Court has long been permissive of such "cooperative federalism" programs in both the regulatory and spending contexts, insisting in New York v. United States (1992) and Printz v. United States (1997) that such programs constitute mere "encouragement" not rising to the level of coercion or commandeering. But Texas's fight to resist being drawn into implementing EPA's greenhouse gas regulations suggests that federal "encouragement" can be deeply coercive, employing penalties against the state's economy that courts have no doctrine to account for.

  • Prof. Michael S. Greve, George Mason University School of Law
  • Mario Loyola, Senior Fellow, Texas Public Policy Foundation
  • Dr. Bryan W. Shaw, Chairman, Texas Commission on Environmental Quality

Supreme Court Rules on Greenhouse Gases - Podcast

Environmental Law & Property Rights Practice Group Podcast
Robert R. Gasaway June 26, 2014

Supreme CourtOn Monday, June 23, 2014, the Supreme Court decided Utility Air Regulatory Group v. Environmental Protection Agency. At issue was the EPA’s conclusion that its regulation of greenhouse gases from motor vehicles triggered mandatory regulation of GHGs from large stationary sources, as well as EPA’s subsequent decision to rewrite the statutory emission thresholds in order to facilitate GHG regulation. The Court held that the EPA is not obligated to regulate GHGs under the Prevention of Significant Deterioration (PSD) and Title V programs, and that the EPA is not permitted to rewrite the applicable statutory emission thresholds – an important reaffirmation that agencies are not allowed to rewrite the statutes that they administer. However, the Court also concluded that it was reasonable for the EPA to interpret the Clean Air Act to allow for the regulation of GHG emissions from sources already subject to regulation under the PSD and Title V program. Our expert discussed the opinion and its impact and future regulation of greenhouse gases.

  • Robert R. Gasaway, Partner, Kirkland & Ellis LLP

Public Land Controversy: The States v. The Federal Government - Podcast

Environmental Law & Property Rights and Federalism & Separation of Powers Practice Groups Podcast
Donald J. Kochan, David Garbett June 25, 2014

public lands mapControversies over jurisdiction and management of public lands are building. Whether grazing rights disputes in Nevada or New Mexico, alarm over federal disinterest in long recognized local partnerships for management of multi-use lands, BLM review of millions of acres to balance factors like environmental justice, and complaints of forest maintenance hazards, states are increasingly concerned. Western states contend that return of public lands to state control would generate a North Dakota-like renaissance of jobs, access to resources, and economic activity. Several Western states are investigating the legal basis for challenging federal retention of these public multi-use lands as described in state charter enabling acts. The state of Utah now has statutory authority to sue the federal government for return of its lands in January, 2015. How sound is the legal case, and what are the economic implications for the Western states -- as well as the country in general? What are the environmental policy issues and is state stewardship of these lands best?

  • Hon. Ken Ivory, State Representative, Utah House of Representatives
  • Prof. Donald J. Kochan, Professor of Law, Chapman University School of Law
  • Carl Graham, Director, Center for Self-Government in the West, Sutherland Institute
  • David Garbett, Staff Counsel, Southern Utah Wilderness Alliance