Yearly Archives: 2015
Dec 18, 2015 Felix MormannEnergy Law
In a 2013 report, the American Society of Civil Engineers awarded the U.S. electricity grid the grade “D+” noting that aging components and limited maintenance contribute to a growing number of brownouts and blackouts. Indeed, the 450,000 miles of high-voltage transmission lines that connect America’s nearly 7,000 power plants with some 6 million miles of lower-voltage distribution networks are based on a grid architecture that dates back to the 1880s. The average transformer in the national power grid is 42 years old and, hence, two years past its projected useful life. Every year power outages cost the economy billions of dollars in lost output and wages, spoiled inventory, production delays, among others. Meanwhile, successful mitigation of global climate change urges the transition to a low-carbon energy economy fueled by solar, wind, and other renewables. But the best renewable resources are often located far from population centers, such as wind resources in the upper Midwest and Plains states or solar resources in the desert southwest. As a result, the U.S. electricity grid requires both modernization and expansion calling for $1 trillion of investment to maintain even current levels of grid reliability. In Revitalizing Dormant Commerce Clause Review for Interstate Coordination, professors Alexandra B. Klass and Jim Rossi take stock of the regulatory impediments to upgrading and expanding the electricity grid, and propose a fresh take on dormant Commerce Clause review to incentivize greater interstate coordination on long-distance transmission projects.
Notwithstanding the vast macroeconomic benefits of an upgraded and expanded electric grid, transmission lines remain highly unpopular and subject to strong “not-in-my-backyard” reactions – at the individual and institutional level alike. Drawing on a series of precedents, professors Klass and Rossi illustrate how states use their virtually exclusive authority over electric transmission line siting and eminent domain to block and, ultimately, defeat interstate transmission projects. “In the context of multi-jurisdictional energy infrastructure projects, a single state or local holdout can keep an infrastructure project from going forward.” Such regulatory holdouts are especially popular among “pass-through” states that often struggle to identify benefits to local constituents from transmission lines that originate and end out-of-state. In the words of Klass and Rossi, “interest group dynamic[s] along with many existing siting and eminent domain laws enable, and may even encourage, these kinds of state and local government holdouts.”
The article identifies three different patterns by which state regulation and, in some cases, legislation facilitate regulatory hold-outs. First, regulators may refuse to issue the required certificate of convenience and necessity based on a narrow assessment of the benefits associated with a proposed interstate transmission project. Second, regulators may refuse to grant eminent domain authority based on post-Kelo legislation or by requiring local need in order to establish “public use.” Third, regulation and/or legislation may limit the procedural rights of out-of-state applicants if not expressly ban them from transmission line siting permits or eminent domain authority in the state.
Professors Klass and Rossi make a compelling case for dormant Commerce Clause review as a doctrinal opening for courts to resolve state regulatory hold-outs – in electricity transmission and beyond. Building on the rich history of related jurisprudence, the article adds to the literature in at least two important ways. First, it revives the dormant Commerce Clause’s role as a catalyst not only for inter-state competition but, critically, also for coordination among states. Klass and Rossi draw on Rocky Mountain Farmers v. Corey to argue that coordination among state policies, as reflected in energy market initiatives that take into account out-of-state benefits, is allowed under dormant Commerce Clause doctrine and, in fact, “ought to be encouraged and, in some instances, required.” Second, the article calls on disfavored out-of-state applicants for electricity transmission siting and eminent domain to harness dormant Commerce Clause doctrine to challenge state legislation and regulation not only on substantive but also on procedural grounds.
In Revitalizing Dormant Commerce Clause Review for Interstate Coordination, professors Klass and Rossi offer a roadmap for states to better coordinate on multi-jurisdictional transmission projects and, where such coordination fails, devise an enticing litigation strategy for disfavored applicants based on a reinvigorated interpretation of dormant Commerce Clause doctrine. I, for one, look forward to seeing both in action.
Nov 10, 2015 Jill FamilyImmigration
Jason A. Cade,
Enforcing Immigration Equity, 84
Fordham L. Rev. (forthcoming 2015), available at
SSRN.
In the late twentieth century, Congress amended the immigration laws to severely limit the power of immigration judges, the agency’s adjudicators, to grant relief from removal on equitable grounds. At the same time, Congress expanded the categories of activities that render a foreign national removable. The result of the statutory tinkering was that it was much easier to be removable and much harder to be granted relief from removal.
The severity of those reforms is well known. Professor Jason Cade’s contribution to the discussion is that he persuasively argues that those statutory reforms from twenty years ago are linked to the most visible controversy in immigration law right now: President Obama’s executive actions creating the chance for a temporary reprieve from removal.
Through Deferred Action for Childhood Arrivals (DACA) and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA), the executive branch has established criteria that agency adjudicators should consider in deciding whether to grant deferred action to an individual foreign national. Deferred action is a time-out from removal. It lets a foreign national know that he or she is a low priority for removal, but it does not erase removability, and provides no lawful immigration status. Deferred action is a revocable promise not to remove for a certain period of time. DACA is aimed at individuals who were brought to the United States as children but who do not have legal status. DAPA is aimed at parents of US citizens or parents of “green card” holders who do not have legal status.
Both DACA and DAPA are executive exercises of prosecutorial discretion. Congress does not appropriate to the executive sufficient funds to remove all 11 million individuals who are in the United States without permission. The executive prioritizes its removal efforts. DAPA has not been implemented, however, because a US District Court judge issued a preliminary injunction against it. According to the judge, DAPA violates the Administrative Procedure Act.
Professor Cade acknowledges this dispute about the legality of DAPA, but does not focus on it. Instead, Professor Cade ties DACA and DAPA back to those statutory reforms of the late twentieth century. His argument is that because Congress removed considerations of fairness and proportionality from the arena of immigration court adjudication, the pressure to inject equity into the system shifted to the executive officials who decide whether to begin removal proceedings. Back-end adjudicators used to be able to consider factors such as the nature of the offense, the length of residence and rehabilitation. Congress eliminated that kind of inquiry and replaced it with very high hurdles to cross to achieve cancellation of removal in immigration court. To Professor Cade, DAPA and DACA represent an effort to exercise prosecutorial discretion in a system where the “prosecutors” know that there is little chance for equity during adjudication. It is up to those deciding whether to place an individual in removal proceedings, then, to balance equities. If the initiation of removal proceedings surely will result in removal, then the executive branch may exercise its prosecutorial discretion to refrain from starting removal proceedings in the first place.
Professor Cade identifies several drawbacks to the status quo. He takes serious issue with the executive’s use of criminal history as a litmus test for whether an individual is worthy of prosecutorial discretion. Equity misses an entire population of foreign nationals, even if the encounter with the criminal justice system occurred tens of years ago and/or was a misdemeanor. Professor Cade argues that “some balancing should take place in individual cases, even for criminal aliens, in order for the removal system to be just.”(P. 45.) While Professor Cade acknowledges that it is good idea to give immigration enforcement agents the power to remove dangerous individuals, he stresses that “it does not follow that all removals of noncitizens with criminal history are justified. . . . [N]ot all noncitizens with convictions or arrests are similarly situated.”(P. 45.)
Also, Professor Cade is uncomfortable with the inherent characteristics of what he calls “enforcement-based equity.”(P. 6.) He cites to the law enforcement bias of immigration prosecutors and their intense workloads as two reasons why equitable considerations and immigration enforcement are not a good fit. Professor Cade additionally observes that while equitable relief obtained from an immigration judge typically results in final, stable legal status in the United States, equitable relief obtained from an immigration prosecutor results only in a time out; it results in preservation of the status quo.
To ease the problems presented by enforcement-based equity, Professor Cade suggests statutory reform that would reinstate the ability of immigration judges to weigh equitable considerations in deciding whether an individual should be removed. This would release some of the pressure on front end enforcement officers, as there would be other avenues for equitable considerations to play a role. A parallel reform would be a statutory legalization program that would allow individuals to apply to become legal based on certain equities. This would shrink the pool of those eligible to be removed, allowing the executive to better focus on who of the remaining population should be removed.
I might dream a little bigger. I agree with Professor Cade that Congress stripped equity from the immigration court system and that we are feeling the repercussions. If there were a constitutional right to be with family, something akin to the Article 8 right to family life contained in the European Convention on Human Rights, then the entire analytical framework changes. Proportionality would become central to any decision to remove that involves the separation of family members. Congress would not be able to legislate away that kind of right. So far the Supreme Court has not acknowledged such a right, however.
Professor Cade is prudent to express his preferred solution, statutory reform, but at the same time to acknowledge that the congressional paralysis that has plagued immigration law reform likely will continue. In the absence of statutory reform, Professor Cade suggests that it will be up to executive exercises of discretion to inject equity into the removal process. He hopes that the executive branch continues to take seriously the burden Congress has placed on it by improving how it does so.
Congress, are you listening? It is time to reform the immigration statutes to inject equity back into the immigration court system. As Professor Cade observes, doing so not only would restore fairness to the system, but also would properly realign the equitable adjudication function to the immigration courts.
Oct 9, 2015 Ezra RosserEnergy Law
Professor Oliver Houck’s recent article, The Reckoning: Oil and Gas Development in the Louisiana Coastal Zone, is easily one of the best articles that I have read in the last ten years and should be required reading regardless of one’s specialty. I should admit that I am not an environmental law professor and the environmental law articles I ordinarily read are those that intersect with one of my primary research areas: Indian law. So I initially downloaded The Reckoning expecting that I would skim it quickly. But it is a remarkable article. Although on its face, the article tells a story of oil and gas development in the fragile wetlands of Louisiana’s coast, it also has lessons about political corruption and short-sightedness that extend far beyond the environmental destruction at the heart of the article.
Professor Houck convincingly argues that the state government and oil and gas interests are seen as essentially the same, so much so that Houck refers to them collectively simply as “the company.” Louisiana actively courted oil and natural gas development to such an extent that the very state entities tasked with protecting the coastal zone participated in the promotion of development above all else, even above reason. As the article shows, it would be inaccurate to say that the state became the puppet of corporate interests or that it rubber-stamped the web of canals that destroyed the wetlands because nearly every Louisiana institution was and is invested in the rush to please big energy. Problematically, the list of those involved in opening up the wetlands, in denying the connection between development and destruction, and in attempting to shift the restoration costs away from oil and gas companies and unto the American taxpayer includes not only the ironically named Louisiana Department of Natural Resources, which time and again saw itself as an industry partner, but also parish governments, state-university academics and centers, politicians at the federal, state, and local levels, and even major environmental groups. As Professor Houck shows, no part of the Louisiana coast has been spared from devastation caused by “the company,” yet “the company” is unwilling to take responsibility and has largely succeeded in avoiding the costs associated with such destruction.
The article tells a remarkable and painful story and it does so in a way that is itself unflinching and remarkable. Professor Houck ends his 112 page article by noting that the work of parsing through the legal arguments in the Levee Board’s case against the oil and gas industries was the work of another article. The Reckoning is entirely dedicated to providing a rich and well-crafted history of the relationship between oil and gas companies, the state of Louisiana, and the coastal environment. And that singular focus is part of why this is a tremendous contribution. Many, and I would argue too many, articles consist of a small dose of observation and a large dose of theory or interpretation. Indeed, I remember vividly being admonished as a pre-tenured professor that my article about immigrant remittances was not sexy enough because I hadn’t dressed it up in theory. It was a mistake I corrected on a future property law article that I thought would be treated as my last article for tenure. But while the push for theory and for interpretation in the legal academy has its place, I think Professor Houck’s careful and thoroughly researched history will do far more to begin correcting course in Louisiana and holding the contributors to the problems there to account than will the many interpretive articles sure to follow. They will surely build off of and cite to The Reckoning but Professor Houck’s narrative of how “the company” operates in Louisiana is incredibly compelling and damning in its own right. The article will likely be widely read by environmental law professors but it is well worth reading regardless of one’s specialty.
Cite as: Ezra Rosser,
A Story Well Told, JOTWELL
(October 9, 2015) (reviewing Oliver A. Houck,
The Reckoning: Oil and Gas Development in the Louisiana Coastal Zone, 28
Tul. Envtl. L.J. 185 (2015)),
https://lex.jotwell.com/a-story-well-told/.
Sep 9, 2015 Angela BanksImmigration
A perennial question for scholars interested in social justice is how politically and socially marginalized groups can become full members of society. Jennifer Lee provides an important contribution to the literature addressing this issue. Building on insights from the social movement literature on strategic framing, Lee contends that strategic mainstreaming offers an opportunity for marginalized groups to obtain immediate benefits. Lee focuses on unauthorized immigrant workers and views strategic mainstreaming as a tool to successfully litigate workplace violations, petition for immigration status, and obtain desired public policy reforms.
Much has been written within the social science social movement literature about the role of frames and framing strategy in bringing about legal reform. Frames serve as tools for organizing and understanding information. Because of the relationship between cultural norms and law, framing offers a useful strategy for legal reform advocates. As Lee notes, “law is neither objective nor fixed but rather dependent on the relationship law shares with the dominant cultural and social patterns of society.” (P. 1068.) Consequently social movements seeking legal reform “are more powerful when the messages of the movement align with the values of mainstream culture.” (P. 1069.) Lee focuses on one type of framing strategy—mainstreaming. This is the process by which “interpretive frames correlated to dominant cultural values” are used “to create connections to mainstream society.” (P. 1064.) Through mainstreaming advocates seek to demonstrate common ground between those seeking reform and dominant cultural values.
Two interpretive frames have dominated the immigrant worker rights movement: the universality of being a worker frame and “immigrant workers as victims of criminal employers who fail to obey the rule of law” frame. (P. 1070.) Within the first frame immigrant workers are presented as “individuals who, like anyone else in the workforce, are seeking the same things out of life through the dignity of their work—the ability to survive independently and provide a better future for their children.” (P. 1069.) Immigrant workers are first and foremost workers. Average Americans are able to identify with immigrant workers through their common experience as workers. This frame also builds on the view of the United States as a place where anyone can accomplish the American Dream through hard work. The second predominant frame has been immigrant workers as victims of criminal employers. Within this frame immigrant workers are hard workers who have done what is expected of them and employers are criminals who steal wages and misclassify workers in order to reduce pay and benefits. This frame makes immigrant worker rights issues easy to address by creating a clear good actor (immigrant worker) and a clear bad actor (employer). This frame also resonates with an American tendency to criminalize social challenges. Lee demonstrates the effectiveness of these frames in the work of public interest lawyers and immigrant workers that address workplace violations in litigation, petitioning for immigration status, seeking public policy reform, and obtaining legal redress through direct action.
Lee does not simply advocate the use of mainstreaming by immigrant worker advocates, she argues for the use of strategic mainstreaming. Strategic mainstreaming builds on insights from the public interest lawyering literature. This literature has documented the various ways in which public interest lawyers contribute to the disempowerment of their clients by ignoring their voices. Lee seeks to avoid such disempowerment by requiring the participation of immigrant workers in the development and deployment of the cultural narratives used to draw connections between immigrant workers and mainstream cultural values.
Lee contends that strategic mainstreaming is an effective option for promoting not only the legal rights of immigrant workers, but also their broader inclusion in American society. Yet she acknowledges an important limitation of this approach to legal reform. Strategic mainstreaming does not attempt to transform dominant cultural values. Rather this strategy seeks to move immigrant workers from the margins of society by demonstrating their similarity to mainstream America. Yet relying on dominant cultural values may further entrench the justifications for the limited legal rights and protections for immigrant workers and other marginalized groups. For example, the immigrant workers as victims frame reinforces the idea that traditional civil law violations should be treated as criminal violations. While this frame may be useful for responding to wage theft and misclassifications, it also makes unauthorized immigrant workers vulnerable to claims that they are criminals due to their civil immigration violations. Furthermore it supports the idea that criminal law strategies should be used to address unauthorized migration. Lee acknowledges this as a challenge to using strategic mainstreaming. She notes that in the immigrant worker context use of this strategy can mean “disfavoring immigrant workers who do not fit the role of the ‘good immigrant’—the iconic hard worker or victim.” (P. 1066.) Despite this challenge, Lee concludes that strategic mainstreaming is worth pursuing because it results in “immediate benefits for real people, whether it is the receipt of monetary compensation, immigration status, or workplace reform.” (P. 1101.) She also views strategic mainstreaming as having the benefit of leading to personal empowerment when workers “own their own narratives.” It can also offer a way to develop alliances and coalitions based on broader identities such as the new working poor. (Pp. 1102-03.)
Lee offers a pragmatic approach for responding to the immediate needs of unauthorized immigrant workers. Her article thoughtfully utilizes the insights from the social science literature on social movements to change the perception of immigrant workers within the American imagination. This strategy can be successful in obtaining monetary compensation for wage theft, lawful immigration status, and specific workplace reforms. However, these achievements may come at the cost of reinforcing dominant conceptions of worthy immigrants.
Cite as: Angela Banks,
Cultural Narratives and Legal Rights, JOTWELL
(September 9, 2015) (reviewing Jennifer J. Lee,
Outsiders Looking In: Advancing the Immigrant Worker Movement Through Strategic Mainstreaming, 2014
Utah L. Rev. 1063 (2015)),
https://lex.jotwell.com/cultural-narratives-and-legal-rights/.
Jul 27, 2015 Steve GoldEnvironmental Law
In a four-decade scholarly career, my former colleague Howard Latin has never shied away from speaking truth to power. His writings have taken on all three branches of government, wealthy private interests like the auto industry, and entrenched academic orthodoxies (notably economic theories of environmental and tort law). More recently, he published an important book arguing that even the most ambitious conventional proposals to respond to anthropogenic climate disruption will not do enough, quickly enough, to mitigate the long-term harm that will result from high concentrations of greenhouse gases in earth’s atmosphere.
In Climate Change Regulation and EPA Disincentives, Latin casts a disappointed eye on the Environmental Protection Agency’s efforts to address greenhouse gas emissions using its authority under the Clean Air Act in the aftermath of Massachusetts v. EPA. Given the ineffable magnitude of the danger, the Supreme Court’s acquiescence, and a comprehending President, Latin asks: Why so timid, EPA? Drawing on many themes from his earlier work, he answers by speaking truth about power: the fossil-fuel-burning generation of electric power, the pressures that exert psychological and bureaucratic power within agencies, and the limited exercise of regulatory power seemingly conferred by statute.
Latin focuses on EPA’s failure to require swift, significant reductions in greenhouse gas emissions from existing and new fossil-fuel-fired power plants and their associated fuel cycles. With respect to existing plants, Latin argues that EPA’s proposed Clean Power Plan requires emissions reductions that are too little too far in the future. With respect to new plants, Latin ridicules as meaningless EPA’s proposed New Source Performance Standard, quoting from the agency’s own analysis of the proposed rule’s effects: it “will result in negligible CO2 emission changes, energy impacts, benefits or costs for new units constructed by 2020” because the rule would require nothing beyond what EPA believes the market would have produced absent regulation.
To explain EPA’s cautious approach, Latin invokes the eight “laws” of administrative behavior that he articulated twenty-five years ago in criticizing the 1990 Clean Air Act amendments. Thus the patterns of agency behavior that Latin observes at work in EPA’s attempts at CO2 emissions regulation are neither new in practice nor newly understood in theory. Latin shows persuasively that these patterns are active by marshaling facts that will also mostly be familiar to those who follow climate policy issues.
It is no surprise, for example, to learn that politics usually trumps technocracy, and therefore EPA responds to political opposition to meaningful CO2 emissions reductions–which comes from officeholders of both political parties for reasons ranging from anti-regulatory ideology to parochial concern about short-term local employment effects to the need for (or fear of) massive campaign spending by those whose wealth derives from fossil fuels. Nor, unfortunately, is it news that Congressionally-imposed resource limitations, continuous criticism from all sides, and manipulation by regulated industries can debilitate the will of even committed career agency staff and well-intentioned agency leadership. Or that EPA is prone to avoiding regulatory steps that would cause severe social and economic dislocation, even if (as Latin contends is true for greenhouse gas emission reductions) regulation would have net social benefits. History amply demonstrates the truth of this group of Latin’s laws.
Two more of Latin’s laws describe other factors constraining EPA’s behavior that, although they have been observed before, are discussed less often in climate policy debates. Latin explains how EPA’s science-driven agenda can discourage necessary, but aggressive and risky, policy-making. Disciplinary norms push most scientists toward basic research and away from policy prescriptions derived from incomplete data, Latin observes, yet at the same time bureaucratic norms channel agency research toward reinforcing already well-supported conclusions rather than assessing phenomena that are only vaguely understood. As a result, Latin argues, reliability norms inhibit strong policy prescriptions while weaker, easier policies are not closely examined. For example, EPA has yet to analyze the effects on greenhouse gas emissions, over the entire fuel cycle, of the market-driven shift from coal-burning to natural-gas-burning electricity generation.
Latin applies his eighth law–that administrators of multiple-purpose statutes tend to emphasize only one or two statutory goals–less to EPA than to the myriad other federal agencies whose actions contribute to the overall effect of government policy on climate disruption. Despite Presidential directives to develop cooperative climate change policies and practices, Latin notes, these agencies continue to pursue specialized agendas that make attacking climate change harder rather than easier. He cites, among other examples, support within the State Department for the Keystone XL pipeline.
The contribution of Climate Change Regulation and EPA Disincentives is not so much in telling us things we did not know but in showing us how they combine to stymie bold regulatory action. The commons problem that has so frustrated global action on greenhouse gas emissions, for instance, underlies much of the political opposition Latin describes but also much of the reluctance to impose social and economic costs in the name of emission reduction: the benefits of individual action at the regional or even national level are perceived not to justify its costs absent effective collective action on a global scale. Internal scientific and bureaucratic norms insidiously enhance the effectiveness of external criticism.
Climate Change Regulation and EPA Disincentives also makes a more subtle contribution to the environmental law professoriate. We all know that the 1970, 1977 and even 1990 Clean Air Act Amendments were not really designed to address emissions of pollutants like greenhouse gases, even though the statute’s language is broad enough to encompass those pollutants. We teach our students–who, after all, will be tasked with making mitigation and adaptation policy choices more difficult than even those we currently face–that what is really needed is legislation designed to attack the climate disruption problem head-on and effectively. Yet we despair of any prospect that such legislation will be enacted in the foreseeable future: certainly not until 2017 or later, and then only if the stars align. By showing us how and why EPA has failed to embrace the power it already has, Latin inspires us to envision a world in which effective national action does not depend on endlessly, fruitlessly waiting for Congress. By explaining agency timidity, he implicitly reminds us–and EPA–of the possibility of daring.
Ordinarily I would have been reluctant to write a Jot praising the work of a colleague at my own law school. I feel justified, however, because Howard Latin has just retired from our faculty. In what may be his last law review article, he again provides signal service to environmental law scholars and environmental policy makers. So I happily thank him for the mentorship he provided to me and for the scholarship he provided to the world.
