Policing Federal Supremacy: Preemption and Common Law Damage Claims as a Ceiling Regulatory Floor

This Article challenges conventional accounts of whether those who drafted the 1970 Clean Air Act intended to preempt state common law claims for nuisance. Neither those who advance robustly deploying the common law to arrest air emissions nor, conversely, those who claim that common law suits would disrupt the air regulatory program appreciate the dynamic that occurred when Congress confronted the Nation’s air pollution problem and crafted the first modern U.S. environmental laws. Yet that dynamic is essential to understanding the Clean Air Act’s “citizen suit” provision and Congress’s decision to preserve certain state common law claims. This Article explains how Congress rejected the post-New Deal attack on expert agency administrators and correspondingly stopped shy of accepting Professor Joseph Sax’s vision for citizen suits—a vision influenced by pervasive dialogues about participatory democracy that left the savings clause in the citizen suit provision clouded amid converging doctrines. This Article argues that this history establishes (1) that Congress unquestionably sought to preserve state common law damage claims and (2) that common law claims for equitable relief are preserved if the state regulatory agency explicitly accepts the continued vitality of such claims or if the activity is not otherwise regulated under the Clean Air Act

Expanding the Federal Common Law?: From \u3ci\u3eNomos\u3c/i\u3e & \u3ci\u3ePhysis\u3c/i\u3e and Beyond

The Supreme Court’s decision in AEP v. Connecticut, as well as litigation involving the threat posed by Asian Carp, reflect an emerging trend of testing the federal judiciary’s willingness to expand the federal common law to include claims for interstate environmental threats. There is an assumption, including by the Supreme Court, that a federal common law for public nuisance exists, and that the pressing question is whether to expand that common law. This article challenges that assumption. The article illustrates that the widely shared view about the persistence of a federal common law for interstate pollution overlooks the Supreme Court’s formulation of its original jurisdiction. The article briefly explores the evolution of the jurisprudential basis for the common law, how the common law and custom became inextricably tied to eighteenth and nineteenth century enlightenment principles, and how those ideas shaped the growth of and demise of a general federal common law. The Article then examines how and why the interstate pollution cases reflect the Court’s struggle with the scope of its constitutionally assigned original jurisdiction to decide disputes between states on the basis of law and equity, not on the basis of any federal common law theory. The final part of the Article explores considerations animating any meaningful dialogue about whether to employ a federal common law for harms such as interstate pollution

A Bridge to Nowhere? Our Energy Transition and the Natural Gas Pipeline Wars

This article chronicles how natural gas has replaced coal as today’s energy dilemma. The pipeline wars illustrate landowners’ concern with special treatment for industry seeking to condemn lands, while some states and the public object to the Federal Energy Regulatory Commission’s (FERC or Commission) approach to approving new pipeline projects, or the Commission’s assessment of GHG emissions associated with project development. Part II examines the pipeline wars in their historical context, portraying the rise of natural gas regulation, its increasing dominance as a fuel source, its associated environmental consequences, and the marked differences in how the Obama and Trump administrations have treated natural gas. Part III describes and analyzes three principal matters collectively displaying the challenges confronting the industry: (1) the Commission’s approach toward conditionally approving pipelines before states can ensure construction activities will comply with the Clean Water Act (CWA); (2) the Commission’s willingness to allow pipeline condemnation proceedings to occur before landowners have an opportunity to thoroughly air their concerns; and (3) FERC’s unwillingness to examine the indirect upstream and downstream effects from increased GHG emissions associated with approving a pipeline. This Part also discusses FERC’s 2018 Notice of Inquiry, soliciting input on the Commission’s pipeline policies. Next, Part IV addresses the principal, looming questions in the pipeline wars: whether and how the Commission ought to reexamine the need for new natural gas pipeline infrastructure. Major energy transitions present major challenges, and the resultant follies from these efforts abound. If we fail to avoid yet another folly, our new natural gas infrastructure could become either a shackle, impeding a zero-carbon energy future, or a bridge to nowhere

Refining Statutory Construction: Contextualism & Deference

This Article urges a novel structure for marrying statutory construction and Chevron deference into a paradigm best described as contextualism. All too often jurists and scholars describe modern statutory construction as dominated by textualism. Textualism is too simplistic and obscures how invariably courts employ a contextualist analysis when construing language. Contextualism, not textualism, is—and always has been—the paradigm for statutory construction. Focusing on contextualism in lieu of textualism promotes an acute focus on what aids in construction a court is willing to entertain, and the Article illustrates that liberal and conservative judges alike employ a contextual analysis while they may volley over whether that analysis includes a consideration of an act’s legislative history or purpose. Chevron’s concentration on the residual effect of that endeavor, or what happens when those aids are insufficiently instructive to warrant deferring to an agency’s construction, wrested from a cloudy past an awkward articulation of deference. But it also shied away from signaling how the judicial review provisions of the Administrative Procedure Act would mesh with its announced formula. This Article chronicles this history, exploring why Chevron surfaced as a loadstar, purportedly offering a formula for lawyers and courts to follow. It did so, though, with little apparent appreciation for nuance, or any pretense of resolving what was emerging in the field of statutory construction. The Article follows others in suggesting Chevron’s demise might not be too disruptive, adding why its loss might facilitate an appropriate awareness that statutory construction is an exercise in contextualism, with seemingly little lost if the APA properly administered materializes. If we accept how contextualism better reflects the path of statutory construction, lawyers and judges can be honest as they debate what and why they accept some aids in construction and not others. It also could signal how agency deference is a residual consequence of how we approach statutory construction. When uncertainty persists after whatever aids in construction a court considers, it seems only logical that an agency’s construction ought to be afforded considerable weight, if reasonable. After all, if reasonable it tilts the balance