Should agencies be allowed to issue interpretive rules without public input?

Posted by on Sunday, April 13th, 2014 in Administrative Law, The MJEAL Blog | 0 comments

The Administrative Procedure Act (“APA”) states that agencies must engage in notice-and-comment rulemaking, a three-step process that requires agencies to notify and solicit public feedback, before promulgating a legally binding regulation.[i]  The APA does not, however, require notice-and-comment for “interpretative rules, general statements of policy, or rules of agency organization . . . or practice.”[ii]  Whether agencies should be allowed to issue interpretive rules without soliciting public input is an important and evolving...

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Defining “Water”: EPA and Corps of Engineers’ Proposed Rule to Clarify Jurisdiction is a Positive Step Towards Greater Environmental Protection

Posted by on Sunday, April 13th, 2014 in Administrative Law, Environmental Law, The MJEAL Blog | 0 comments

 On March 25, the Environmental Protection Agency (“EPA”) and Army Corps of Engineers (“Corps”) announced that a proposal for a new rule defining “waters of the United States” as it appears in the Clean Water Act (“CWA”) would be appearing in the Federal Register for notice and comment in the coming weeks.[i] The definition is meant to clarify the scope of federal jurisdiction under the CWA, including the reach of the National Pollutant Discharge Elimination System (“NPDES”) permitting program, the oil spill prevention and...

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Plastic Bag Bans: California Moving Toward a Statewide Solution

Posted by on Saturday, April 12th, 2014 in Environmental Law, The MJEAL Blog | 0 comments

Over the past few years local plastic bag ban campaigns have been gaining momentum, particularly in California and other coastal states. Environmentalists encourage the bans because the plastic bags currently used in most retail check-out stands are not easily recyclable. In addition, almost all of the 400 plastic bags used per second in California are discarded.[i] Plastic bags end up in landfills, on city streets, or in water bodies where they can take up to hundreds of years to decompose and release tiny toxic bits as they do.[ii] In...

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One small step for Cape Wind, one giant leap for domestic offshore wind development?

Posted by on Friday, April 11th, 2014 in Administrative Law, Environmental Law, The MJEAL Blog | 0 comments

March was a significant month for the Cape Wind project: the utility-scale wind farm proposed for the waters off of Cape Cod would be the first of its kind in the United States. Last month, Cape Wind secured an additional $400 million in financing, bringing its total fundraising to $1.3 billion or about half of the project’s estimated cost of $2.5 billion.[i] The project also prevailed last month in federal court, defeating numerous challenges to federal agency authorizations of the project.[ii] The wind farm has seen well-organized and...

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Government Clashes with Property Owners Over Unused Railroad Tracks

Posted by on Friday, April 11th, 2014 in Administrative Law, Environmental Law, The MJEAL Blog | 0 comments

The conflict between private property and public land is nothing new. Property rights have shaped the way in which American society was structured from the moment Europeans reached the New World. Although there have been instances where conservationists have been able to use property rights to their advantage, such as in buying up land that houses sensitive environments, the relationship between conservation and property has typically been rocky. For example, legislation such as the Endangered Species Act allows the federal government to...

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Concerns Raised by the Wave of Hydrofracking in the US

Posted by on Thursday, April 10th, 2014 in Administrative Law, Environmental Law, The MJEAL Blog | 0 comments

Hydraulic fracturing, more commonly known as “hydrofracking,” is a controversial mining technique that allows natural gas and oil industry developers to reach otherwise unattainable deposits of shale gas.[i] There are varying techniques currently in use, but the general process involves pumping fluids at high pressures into underground wells to force out either oil or natural gas.[ii] The composition of this ‘fluid’ is generally unknown because disclosure is not required by industry groups, but it is estimated that some fluid mixtures...

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China’s “War Against Pollution”

Posted by on Thursday, April 10th, 2014 in Administrative Law, Environmental Law, The MJEAL Blog | 0 comments

Environmental protection will be a hot topic at this year’s annual session of the National People’s Congress (NPC) of China. Premier Li Keqiang’s government work report, given at the opening of the NPC on March 5, 2014, listed nine “Major Tasks for 2014,” including the goal of “building China into a beautiful homeland with a sound ecological environment.”[1] To that end, Li has “declare[d] war against pollution.”[2] NPC Chairman, Zhang Dejiang, echoed Li’s proclamation, informing delegates, “We will revise the...

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Michigan’s “Very Serious Consequences” Test: Zoning Standards and Natural Resource Extraction

Posted by on Monday, April 7th, 2014 in Environmental Law, The MJEAL Blog | 0 comments

In Lyndon Township, a major dispute is brewing between McCoig Materials, Inc. (McCoig) and concerned community members over a proposed gravel mine.  Located in the northwest corner of Washtenaw County, Lyndon Township is a rural community with a small population (2,720), few businesses, and abundant nature areas. The proposed mine location near the junction of M-52 and Territorial Road falls on land that abuts county-owned Park Lyndon and 20,500-acre Waterloo-Pinckney Recreation Area, a state-owned network of forests, lakes, and trails that...

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Wealth, Enjoyment, and How Our Society Measures Success

Posted by on Monday, April 7th, 2014 in Administrative Law, Environmental Law, The MJEAL Blog | 0 comments

Cost-Benefit Analysis (CBA) has been a mainstay of the regulatory state since the Reagan administration issued Executive Order 12,291 in 1981. Despite vigorous criticism, the CBA policy first introduced by Reagan has remained largely untouched by subsequent administrations.[i] Most recently President Obama issued his own Executive Order, reaffirming CBA practices under his administration. While CBA is the standard tool used for evaluating new regulations, many scholars have proposed alternative methods that they claim to be preferable to...

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Oklahoma Legislature Threatens Moratorium on Wind Developments until 2017

Posted by on Monday, April 7th, 2014 in Administrative Law, Environmental Law | 0 comments

On March 12th, the Oklahoma Senate passed Senate Bill (SB) 1440, which places a moratorium on new wind farm developments in Oklahoma east of Interstate 35.[i]  This bill would effectively limit wind farm developments to only the western half of the state, significantly decreasing the potential for future wind farm development and diversification of Oklahoma’s energy portfolio. As a state, Oklahoma has aggressively been pursuing an “all of the above” energy policy, which calls for integration of traditional fossil fuels such as natural...

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