Environment, Energy, and Resources Law

This chapter from The Year in Review, published by the ABA Section on Environment, Energy and Resources, covers developments during 2013 in the areas of standing, Commerce Clause, political question doctrine, preemption, takings, due process, First Amendment, Tenth Amendment, and state constitutional law.https://digitalcommons.wcl.american.edu/facsch_bk_contributions/1282/thumbnail.jp

Fracking, Federalism, and Private Governance

The United States is in the midst of a natural gas boom, made possible by advances in drilling and extraction technologies. There is considerable disagreement about the relative benefits and costs of the boom, but one thing is certain: it has caught governments flat-footed. The federal government has done little more than commission a study of some associated public health and environmental risks. States have moved faster to address natural gas risks, but with little consistency or transparency. Numerous private organizations are beginning to fill the resulting governance gaps with information-gathering and standards-setting efforts. This Paper documents these efforts and then uses a concrete policy proposal — the development of sustainable shale gas credits — to argue that these private entities are well positioned to facilitate the development and horizontal and vertical diffusion of innovative public governance strategies. In other words, these entities are fulfilling the experimentation function once assigned to states in so-called “laboratory federalism.” The Paper ends on a cautionary note, however. Private governance efforts often suffer from a lack of openness, balance, and accountability. Worse, there is reason to fear that familiar procedural reforms aimed at fixing those problems for public agencies may work far less well in the private context

Regulatory Hide and Seek: What Agencies Can (and Can\u27t) Do to Limit Judicial Review

Many authors discuss judicial oversight of agency actions. Our subject, which is less well examined, is agencies’ role in modulating that oversight. We consider cases in which the timing or form of an agency action has curtailed judicial review of the agency’s policy choices. In some such cases, the agency’s choice of form deprived the court of statutory or Article III jurisdiction. In others, the court chose to delay or deny review to avoid interfering with agency policy development. Despite these differences, though, all such “reviewability” cases pose important constitutional questions about the degree to which an agency should be able to limit judicial oversight of its activities. We argue that courts pay too little attention to these questions, and we propose a more systematic framework for evaluating the constitutional implications of allowing an agency to modulate the availability of judicial review by manipulating the structure of its actions