Property -- United States, Public lands -- United States -- Law & legislation, and Land tenure -- United States
The Property Clause of the Constitution grants Congress the "Power to Dispose" of federal land. Congress uses this Clause to justify permanent federal land ownership of approximately one-third of the land within the United States. Legal scholars, however, are divided as to whether the original understanding of the Clause supports this practice. While many scholars argue that the text and intent of the framers show that Congress has the power to permanently own land within the states, others contend that these sources demonstrate that Congress has a duty to dispose of all federal land not held pursuant to another enumerated power. This scholarly debate has become increasingly important in recent years as a popular movement for state ownership of federal land has reemerged in the West. This Article argues that the debate over the history of the Property Clause should move beyond the Founding. The original meaning of the text, the intent of the framers, and the precedent of the early Supreme Court simply do not resolve the issue of whether Congress's Duty to Dispose includes the power to permanently retain land within the states. This Article therefore provides the first detailed examination of how Congress's Power to Dispose has been understood since the Founding. It concludes that, although Westerners have repeatedly challenged Congress's power when federal land policy has restricted western development, dominant opinion has always supported a broad construction of Congress's power. In fact, those who favor federal land ownership have long argued that giving land to individual states would violate a constitutional obligation for Congress to use the land for the common benefit. When constitutional history is properly applied to Congress's Power to Dispose, it strongly supports federal land ownership. [ABSTRACT FROM AUTHOR]
Carbon taxes, Emissions trading, Sharing economy, U.S. states, Practical reason, and Fiscal policy
While market-based climate policy in the United States has been dominated by emissions trading, including policies at the state level and in proposed major federal legislation, a number of recent U.S. climate proposals focus on a carbon tax (or fee). Just as emissions trading programs have included some form of "price containment" measures, carbon tax policies may include "emissions assurance" provisions or, as we refer to them here, "environmental integrity mechanisms" (EIMs), which are designed to provide greater certainty about the resulting quantity of emissions. We propose three political economy reasons—as well as one practical reason relating to international climate agreements—that EIMs are likely to be an important component of any politically successful carbon tax (or fee) legislation in the U.S. Congress. [ABSTRACT FROM AUTHOR]
Carbon taxes, Climate change prevention, Tax auditing, Commercial treaties, Presidents of the United States, and Charities
The design of climate change policy must address a number of key uncertainties, including the impacts of climate change, the economics of a carbon tax, and the global effort to combat climate change. A periodic review of each of these issues would provide new information and analysis that could be used to reduce uncertainty and inform the updating of a carbon tax over time. This article proposes and describes a straightforward and predictable approach for reviewing and updating a U.S. carbon tax. Under this "structured discretion" approach, the U.S. president would recommend an update to the carbon tax every 5 years, which would be based on government agency reviews of the environmental, economic, and multilateral conditions related to climate change. Following a process that is modeled after the expedited consideration of trade agreements, the U.S. Congress would agree to vote on the recommended carbon tax update. This process could also be coordinated with the timing of the emission mitigation pledging rounds under the 2015 Paris Climate Agreement. I suggest that the institutionalization of such an act-learn-act approach to carbon tax design could improve the political viability of a carbon tax and promote its adaptability to changing environmental, economic, and multilateral conditions, which would likely increase net social welfare over time. [ABSTRACT FROM AUTHOR]
The article examines the case Tugaw Ranches, LLC v. U.S. Department of the Interior to discuss the implementation of the Congressional Review Act (CRA). Also cited are the CRA's aim to bolster congressional oversight of agency rulemaking amidst the growing administrative state, the Act's provision excluding judicial review, and the duty of Congress to police compliance under CRA.
This article examines the drivers of American support for environmental projects in the multilateral development banks (MDBs). We first describe how U.S. Executive Directors are guided by Congressional directives regarding environmental aspects of MDB projects. The article then turns to statistical analysis of the strategic and normative drivers of U.S. positions on MDB projects. Our analysis finds mixed support for environmental factors driving U.S. votes. The United States is more inclined to vote against ''dirty'' projects (i.e., mining, coal, and oil) rather than specifically support ''green'' projects (i.e., projects related toward climate change or biodiversity). The overall environmental performance of a country had a minor influence on whether the United States would support proposals from that country, but the United States was much more likely to disapprove of a project if a project failed to undergo an environmental analysis or failed the analysis in anyway. [ABSTRACT FROM AUTHOR]
Global warming & the environment, Emission control, United States climate change policy, Public opinion -- United States, Representative government, Legislative voting, and United Nations Framework Convention on Climate Change (1992). Protocols, etc., 1997 December 11
In the United States, few constituents know and understand climate policy, prioritize it as a political topic, or let their voting decisions depend on it. In these conditions, representatives would not be expected to pay heed to constituents’ climate concern in their voting decisions. Still, even after controlling for the presence of interest groups, campaign finance, and legislators’ party affiliation and ideology, there is a consistent link between public opinion and votes on cap-and-trade legislation in the House (and to a lesser degree in the Senate). The same is true when public opinion is simulated based on pre-vote district characteristics. Explanations for these findings are discussed. [ABSTRACT FROM PUBLISHER]
Fossil fuel industries, Energy policy, Energy transitions, Federal government, and State governments
Much literature on federalism and multilevel governance argues that federalist institutional arrangements promote renewable energy policies. However, the U.S. case supports a different view that federalism has ambivalent effects. Policy innovation has occurred at the state level and to some extent has led to policy adoption by other states and the federal government, but the extent is limited by the veto power of fossil fuel interests that are rooted in many state governments and in Congress, buttressed by increasing Republican Party hostility to environmental and climate policy. This argument is supported by a detailed analysis of five periods of federal and state renewable energy policy-making, from the Carter to the Trump administrations. The negative effects of federalism on national renewable energy policy in the United States, in contrast to the West European cases in this special issue, are mainly due to the interaction of its federalist institutions with party polarization and a strong domestic fossil fuel industry. [ABSTRACT FROM AUTHOR]
Climate change laws, International cooperation on environmental protection, Environmental law -- United States, Foreign relations of the United States, and Environmental policy -- United States
The perception of the United States as a laggard or malingerer on climate change is widespread. The current reality, however, is largely underappreciated and considerably more nuanced, both in terms of the substance of U.S. domestic action and its engagement with international processes. Unusual if not unique attributes of the United States' domestic political, legal, and constitutional structure have come together on the climate issue in a revealing manner--one that thrusts into sharp relief the United States' difficulties in managing foreign affairs while maintaining the domestic rule of law on heavily regulatory issues such as the environment. This Article asserts that neither Senate advice and consent nor new congressional legislation are necessarily conditions precedent to the United States becoming a party to an agreement containing binding emission-reduction (mitigation) commitments adopted at the 21st Conference of the Parties to the U.N. Framework Convention on Climate Change, to be held in Paris in December 2015. Depending on the form of such an agreement, which is presently under negotiation, portions of the President's Climate Action Plan could provide sufficient domestic legal authority for the conclusion of all or part of such a binding international instrument as an executive agreement, as well as for its domestic implementation, overcoming the legal necessity for interaction with Congress either before or after its conclusion. In making this argument, the Article disaggregates U.S. international and domestic climate policy as it has developed to the present from a structural point of view. Among the subjects analyzed are (1) the extent of the Executive's powers in foreign relations on climate and related issues; (2) the strengths and limitations of existing federal legislation as domestic legal authority for an international agreement; (3) options available under existing legislation, both those that have already been put in place and those in the process of implementation; (4) the extent, if any, of the need for additional legislation, and the international and domestic implications of the absence of additional legislative authority; and (5) the role of the courts. [ABSTRACT FROM AUTHOR]
Public lands, Ocean acidification, Environmental law -- United States, Legislative bills -- United States, and Jurisdiction (Administrative law)
The article presents developments related to environmental law in the U.S. Congress in June 2018. These developments include a legislative bill authorizing the transfer of administrative jurisdiction of federal land, a legislation that would change the Federal Power Act, and a legislative bill that would establish an Ocean Acidification Advisory Board.
Journal of Land Use & Environmental Law. Fall2014, Vol. 30 Issue 1, p79-90. 12p.
Environmental law -- United States, Endangered Species Act of 1973 (U.S.), Environmental policy -- United States, and Environmental protection -- United States
The article discusses the existence of the U.S. Congress in environmental law using the Endangered Species Act (ESA) as case study to test the theory of environmental law deism. Topics include core programs of the ESA, such as the Fish and Wildlife Service or the National Marine Fisheries Services, the Spotted Owl controversy of 1986 to 1992 which began the logjam era for the ESA, and the indications that the U.S. Congress is actually on the ESA.
Journal of Land Use & Environmental Law. Fall2014, Vol. 30 Issue 1, p15-34. 20p.
Environmental law -- United States, Clean Air Act (U.S.), Clean Air Act Amendments of 1990 (U.S.), and Environmental policy -- United States
An essay is presented on environmental law without the U.S. Congress based on a keynote address delivered at a conference at the Florida State University College of Law. Topics include the role of the U.S. Congress during the 19th and first half of the 20th century, a consideration of the U.S. Congress during the second half of the 20th century, and the role of the U.S. Congress since the congressional passage of the Clean Air Act Amendments of 1990.
Boston College Environmental Affairs Law Review. 2015, Vol. 42 Issue 2, preceding p259-303. 46p.
Endangered species, Wildlife conservation, Habitats, and Endangered Species Act of 1973 (U.S.)
Section 9 of the Endangered Species Act, or the ESA, strictly prohibits any person or other entity from "taking" any endangered or threatened species, whether purposefully or incidentally. In section 10 of the ESA, Congress created two distinct permit mechanisms to allow the U.S. Fish and Wildlife Service, or FWS, to authorize take in certain limited circumstances--namely recovery permits for purely scientific research and incidental take permits, or ITPs, for nonscientific endeavors where such taking is incidental to, and not the purpose of, an otherwise lawful activity. Because scientific research benefitting the species at issue is not a primary objective of the second type of permit, Congress created a carefully calibrated permitting regime for ITPs. These permits provide certain safeguards that ensure extensive public comment opportunities and environmental review under the National Environmental Policy Act--safeguards that, naturally, are less extensive for scientific permits. In recent years, however, the FWS has, in various instances, conflated the distinct purposes of these two statutory permitting schemes. The agency has issued recovery permits to entities seeking authorization for incidental takes rather than scientific research, which has resulted in the issuance of permits to developers with far less public scrutiny and review than Congress intended. This Article analyzes the applicable legislative history and statutory text, assesses recent examples of the conflation of these two distinct permitting schemes, and examines the public policy rationales against the agency's continued short-circuiting of congressional safeguards through the issuance of recovery permits for incidental takes that are not tantamount to pure scientific research. [ABSTRACT FROM AUTHOR]