State-Created Environmental Dangers and Substantive Due Process

This Article focuses on litigation arising out of contaminated drinking water in Flint, Michigan, lead paint in New York City public housing, and harms to young people from the impacts of climate change. At the heart of each case is a claim that state officials violated the plaintiffs’ substantive due process rights by creating or enhancing an environmental danger and then deliberately failing to mitigate the risk to the plaintiffs. Although the plaintiffs characterize their claims in similar fashion, the three cases are not likely to enjoy the same success as they move through the courts. The scholarly commentary thus far does not offer satisfying answers to why plaintiffs might state a claim against officials for contaminated drinking water but not for an unstable climate. Although these cases involve novel applications of substantive due process doctrine, scholars have yet to examine exactly if and how they depart from other substantive due process cases. To fill this gap in the literature, this Article seeks to situate these cases in existing doctrine. In doing so, it exposes doctrinal confusion regarding which standards and tests apply to state-created danger claims. In addition, to provide courts with necessary guidance, this Article proposes a framework for state-created danger claims, limited by established common law principles and grounded in the important distinction between challenges to official misconduct and challenges to governmental law or policy

State Standing to Challenge Federal Authority in the Modern Administrative State

The modern administrative state relies on a model of shared governance. Federal regulatory regimes addressing a range of economic and social issues depend on the participation of state governments for their implementation. Although these state-federal partnerships are often cooperative, conflicts over the allocation of regulatory authority and administrative policy are inevitable. In recent years, states have sought to resolve some of these conflicts in the federal courts. Well-known state challenges to federal authority include challenges to environmental rules, health insurance legislation, and immigration policies. In these cases, courts have struggled to decide whether states have constitutional standing to bring suit against the federal government. This Article fills a gap in the legal scholarship by proposing a “governance” approach to state standing that would allow states to challenge federal authority when the federal statute at issue contemplates an implementation role for state governments. The governance approach finds support both in historical precedent and in modern regulatory reality. The approach makes state-standing doctrine less susceptible to judicial manipulation and ensures that courts focus on other threshold questions often obscured by overly broad, incoherent standing analyses

Constitutional Resilience

Since the New Deal era, our system of constitutional governance has relied on expansive federal authority to regulate economic and social problems of national scale. Throughout the twentieth century, Congress passed ambitious federal statutes designed to address these problems. In doing so, it often enlisted states as regulatory partners—creating a system of shared governance that underpins major environmental statutes, such as the Clean Water Act and the Clean Air Act. These governance structures remain important today as we seek to adapt our laws and institutions to the serious disruptions of climate change. But recent Supreme Court decisions challenge this long-established vision of governance. This raises a critical question: How resilient is our current system of constitutional governance? Originally applied to the natural sciences, resilience theory has since inspired scholars across disciplines to think about how social-ecological systems respond to disruptive change. At the heart of resilience thinking is an attempt to balance stability with change. But as legal scholars of adaptive governance have argued, if our normative goal is to promote the resilience of ecosystems and natural resources, our system of governance must also encourage an ecological resilience that supports the flexibility and adaptive capacity of our governing institutions and laws. Not surprisingly, the adaptive governance literature focuses on democratic processes and institutions at all levels of government. Constitutional design is a background condition rather than a feature of adaptive governance or decision making. But background conditions may impede or facilitate the emergence of adaptive laws. Moreover, the judicial interpretations of these conditions are less static and therefore capable of either facilitating or hindering the adaptive capacity of institutions and laws. The premise of this Article is that constitutional governance doctrines can and should balance the stability of static rule-of-law resilience with the flexibility required for adaptive governance in a climate-disrupted world. Judicial doctrines can enhance adaptive capacity by fostering shared, overlapping governance and regulatory flexibility. Unfortunately, recent doctrinal trends threaten to hinder adaptive capacity. This Article examines some of these constraining threads, including the narrowing of Congress’s authority under the Commerce Clause, the resurgence of the nondelegation doctrine, and doctrines governing state authority under the Dormant Commerce Clause

Beyond Zero-Sum Environmentalism

Environmental law and environmental protection are often portrayed as requiring trade offs: “jobs versus environment,” “markets versus regulation,” “enforcement versus incentives .” In the summer of 2016, members of the Environmental Law Collaborative gathered to consider how environmentalism and environmental regulation can advance beyond this framing to include new constituents and offer new pathways to tackle the many significant challenges ahead . Months later, the initial activities of the Trump Administration highlighted the use of zero-sum rhetoric, with the appointment of government officials and the issuance of executive orders that indeed seem to view environmental issues as in a zero-sum relationship with jobs or economic progress . In the essays below, the authors explore the meaning and the role of zero-sum environmentalism as a first step in moving beyond it

Environmental Law Disrupted By COVID-19

For over a year, the COVID-19 pandemic and concerns about systemic racial injustice have highlighted the conflicts and opportunities currently faced by environmental law. Scientists uniformly predict that environmental degradation, notably climate change, will cause a rise in diseases, disproportionate suffering among communities already facing discrimination, and significant economic losses. In this Article, members of the Environmental Law Collaborative examine the legal system’s responses to these crises, with the goal of framing opportunities to reimagine environmental law. The Article is excerpted from their book Environmental Law, Disrupted, to be published by ELI Press later this year

Environmental Law, Disrupted by COVID-19

For over a year, the COVID-19 pandemic and concerns about systemic racial injustice have highlighted the conflicts and opportunities currently faced by environmental law. Scientists uniformly predict that environmental degradation, notably climate change, will cause a rise in diseases, disproportionate suffering among communities already facing discrimination, and significant economic losses. In this Article, members of the Environmental Law Collaborative examine the legal system’s responses to these crises, with the goal of framing opportunities to reimagine environmental law. The Article is excerpted from their book Environmental Law, Disrupted, to be published by ELI Press later this year

A Response to the IPCC Fifth Assessment

The Intergovernmental Panel on Climate Change\u27s (IPCC) Fifth Assessment Report presented significant data and findings about climate change. But the IPCC\u27s working groups\u27 summaries for policymakers avoid making normative statements about the IPCC\u27s findings. The authors, members of the Environmental Law Collaborative, bridge this gap by identifying the normative claims that stem from the working groups\u27 summaries to spark deeper discussion and help shape the IPCC\u27s sixth assessment

A Response to the IPCC Fifth Assessment

This collection of essays is the initial product of the second meeting of the Environmental Law Collaborative, a group of environmental law scholars that meet to discuss important and timely environmental issues. Here, the group provides an array of perspectives arising from the Fifth Assessment of the Intergovernmental Panel on Climate Change. Each scholar chose one passage from one of the IPCC’s three Summaries for Policymakers as a jumping-off point for exploring climate change issues and responding directly to the reports. The result is a variety of viewpoints on the future of how law relates to climate change, a result that is the product not only of each scholar’s individual knowledge but also of the group’s robust discussion