Constitutional Law Debating response to new line of attack

• Pages: 55-55

MAY/JUNE 2010 ❧ Page 55

Copyright © 2010, Environmental Law Institute®, Washington, D.C. www.eli.org.

Reprinted by permission from The Environmental Forum®, May/June 2010

ELI Report

As the health-care de-

bate showed, federal regula-

tion is increasingly subject

to constitutional attacks

— a trend that also has af-

fected environmental law.

On February 26, ELI

convened Environmental

Protection in the Balance:

Citizens, Courts, and the

Constitution, co-sponsored

with UC-Berkeley Law

School’s Center for Law,

Energy and Environ-

ment and Georgetown

University Law Center’s

Environmental Law and

Policy Program.

e symposium brought

together an impressive

range of legal scholars,

practitioners, and policy-

makers to explore topics at

the intersection of consti-

tutional and environmental

law.

“e last decade has

seen a number of court

challenges to the bipartisan

1970s consensus that laid

the foundations of modern

environmental law,” said

Jay Austin, director of ELI’s

Endangered Environmental

Laws Program. “rough

their scholarship and ad-

vocacy, these lawyers are

demonstrating that broad

environmental protections

are consistent with both the

Constitution and sound

legal practice.”

A standing-room-only

audience of over 120 lis-

tened intently as expert

panels analyzed trends

in the federal courts that

af‌fect the future of environ-

mental protection.

Key constitutional and

structural issues that were

covered included citizen

standing and access to

courts, the scope of congres-

sional authority to protect

the environment, the con-

stitutional status of state and

regional climate initiatives,

and emerging constitu-

tional theories that support

or threaten environmental

law.

Keynote remarks were

provided by Professor

Richard Lazarus of George-

town Law School, who

identif‌ied four distinct

eras of constitutional envi-

ronmental law, and Judge

Peter W. Hall from the

U.S. Court of Appeals for

the Second Circuit, who

discussed his court’s role in

the Connecticut v. American

Electric Power global-warm-

ing case.

Not even the famous

blizzard of 2010 prevented

nearly 100 participants

from attending an ELI

conference on, ironically,

the climate.

Shortly before snowfall

began on the morning

of February 5, the doors

opened on Capitol Hill to

Implementing Climate

Change Policy: Looking

Forward to the Hard

Part. e event was co-

sponsored by ELI, along

with Columbia University

Law School, University of

Virginia Law School, and

Vanderbilt University Law

School.

It was a very cold day

for the discussion of a very

hot topic: U.S. climate

change legislation. Such a

bill would likely be one of

the longest and most com-

plex federal statutes passed

in decades, and would af-

fect almost every corner of

the economy. Until then,

EPA and perhaps other

agencies may adopt rules to

the same end.

Implementing the new

regulatory scheme will be

a massive and dif‌f‌icult un-

dertaking. Billions of dol-

lars will hinge on each of

numerous implementation

decisions. e conference

brought together lead-

ing government of‌f‌icials,

academics, public interest

attorneys, and private prac-

titioners to explore these

issues:

e dozens of rule-

makings required of the

Environmental Protection

Agency, the Department of

Energy, and other agencies;

creating the machinery for

markets and of‌fsets; man-

aging the transition for key

sectors (fossil and renew-

able energy, agriculture,

forestry); linkages to the

international climate and

trade systems; state and lo-

cal roles; af‌fecting individ-

ual and corporate behavior;

equity and environmental

justice issues.

e conference co-

chairs included Professors

Jonathan Z. Cannon,

University of Virginia

Law School; Michael B.

Gerrard, Columbia Law

School; and Michael P.

Vandenbergh, Vanderbilt

Law School.

Vandenbergh noted that

“although there is much we

don’t know about the f‌inal

outcome of policy develop-

ment at the global, federal,

and state levels, the confer-

ence provided a chance to

give serious attention to

implementation issues.

“e weather didn’t

impede a very produc-

tive discussion of the

implementation challenges

confronting climate policy

at the global, federal, and

state levels,” he said.

e conference attendees

weathered the blizzard on

Saturday, but held the con-

ference via telephone rather

than appearing in person.

Fortunately, E&E News

interviewed ELI’s Vice

President of Climate and

Sustainability, Scott Schang,

about the conference the

following week. e tran-

script of that interview is

presented on the following

pages.

An audience member at the ELI-Berkeley-Georgetown Law confer-

ence asks a question.

Constitutional Law Debating

response to new line of attack

Snowmageddon Weather fails

to halt Hill climate conference