scholarly journals Climate Policy and the United States System of Divided Powers: Dealing with Carbon Leakage and Regulatory Linkage

2013 ◽  
Vol 3 (1) ◽  
pp. 31-55 ◽  
Author(s):  
Daniel A. Farber
Keyword(s):  
Climate Change ◽  
United States ◽  
Environmental Protection Agency ◽  
Policy Making ◽  
Separation Of Powers ◽  
The United States ◽  
Executive Branch ◽  
Carbon Leakage ◽  
Foreign Affairs ◽  
State Governments

AbstractClimate change has pushed governmental authorities within the United States (US) into new routes of national and transnational policy-making. The normal route for national policy-making runs from Congress in setting policy, to the President in agency implementation, to judicial oversight and enforcement. When that route is blocked, however, federalism and the separation of powers provide some byways and detours that may still be used to make progress. State governments and the executive branch have moved into the breach left by congressional deadlock. In the absence of federal climate legislation or a formal treaty, however, constitutional challenges will predictably meet efforts to limit carbon leakage or to establish linkages between regulatory systems.These constitutional issues often involve corners of constitutional law such as foreign affairs, where doctrines are particularly murky. Solid arguments can be made in favour of state efforts to avoid leakage and create linkage, despite claims of discrimination against interstate commerce, extraterritoriality, and foreign affairs pre-emption. The Environmental Protection Agency has some statutory authority to deal with leakage, and the President seems to have authority to pursue linkage through executive agreement. Thus, both states and the executive branch should have room to deal with transboundary implications of climate policies. Although the deadlock in Congress regarding climate change may be unusually severe, these modes of response may also be important for other kinds of transnational activity by US state governments and the national executive.

scholarly journals An Attack on the Separation of Powers? Strategic Climate Litigation in the Eyes of U.S. Judges

2021 ◽  
Vol 13 (15) ◽  
pp. 8335
Author(s):  
Jasmina Nedevska
Keyword(s):  
Social Sciences ◽  
Climate Change ◽  
United States ◽  
Separation Of Powers ◽  
The United States ◽  
Checks And Balances ◽  
Climate Politics ◽  
The Social ◽  
Domestic Courts ◽  
Research Plan

Climate change litigation has emerged as a powerful tool as societies steer towards sustainable development. Although the litigation mainly takes place in domestic courts, the implications can be seen as global as specific climate rulings influence courts across national borders. However, while the phenomenon of judicialization is well-known in the social sciences, relatively few have studied issues of legitimacy that arise as climate politics move into courts. A comparatively large part of climate cases have appeared in the United States. This article presents a research plan for a study of judges’ opinions and dissents in the United States, regarding the justiciability of strategic climate cases. The purpose is to empirically study how judges navigate a perceived normative conflict—between the litigation and an overarching ideal of separation of powers—in a system marked by checks and balances.

scholarly journals International Law in the US Legal System

2020 ◽  
Author(s):  
Bradley Curtis A
Keyword(s):  
United States ◽  
International Law ◽  
Legal System ◽  
Separation Of Powers ◽  
The United States ◽  
Foreign Affairs ◽  
Sovereign Immunity ◽  
War Powers ◽  
Jus Cogens ◽  
The U.S

International Law in the U.S. Legal System provides a wide-ranging overview of how international law intersects with the domestic legal system of the United States, and points out various unresolved issues and areas of controversy. Curtis Bradley explains the structure of the U.S. legal system and the various separation of powers and federalism considerations implicated by this structure, especially as these considerations relate to the conduct of foreign affairs. Against this backdrop, he covers all of the principal forms of international law: treaties, executive agreements, decisions and orders of international institutions, customary international law, and jus cogens norms. He also explores a number of issues that are implicated by the intersection of U.S. law and international law, such as treaty withdrawal, foreign sovereign immunity, international human rights litigation, war powers, extradition, and extraterritoriality. This book highlights recent decisions and events relating to the topic, including various actions taken during the Trump administration, while also taking into account relevant historical materials, including materials relating to the U.S. Constitutional Founding. Written by one of the most cited international law scholars in the United States, the book is a resource for lawyers, law students, legal scholars, and judges from around the world.

United States Climate Change Law

2016 ◽  
Author(s):  
Michael B. Gerrard
Keyword(s):  
Climate Change ◽  
United States ◽  
Endangered Species ◽  
Traffic Safety ◽  
Environmental Protection Agency ◽  
Climate Change Policy ◽  
Marine Species ◽  
The United States ◽  
Highway Traffic ◽  
National Highway Traffic Safety

This chapter presents an overview of climate change law in the United States, given the global impact of its domestic and international climate change policies. It traces the evolution of US climate change policy under different presidents, and discusses emerging programs under the Clean Air Act (CAA). Under the CAA, the Environmental Protection Agency (EPA) issues emissions standards, and under the Energy Policy Conservation Act, the National Highway Traffic Safety Administration (NHTSA) issues Corporate Average Fuel Economy (CAFE) standards. The chapter also describes the protection of endangered species under the Endangered Species Act (ESA). The ESA directs the Fish and Wildlife Service to designate certain species as endangered or threatened; for marine species that task falls to the National Marine Fisheries Service.

scholarly journals Establishing Climate Change Resilience in the Great Lakes in Response to Flooding

2020 ◽  
Vol 17 (01) ◽  
Author(s):  
Gwendolyn E Gallagher ◽  
Ryan K Duncombe ◽  
Timothy M Steeves
Keyword(s):  
Climate Change ◽  
United States ◽  
Water Quality ◽  
Great Lakes ◽  
Environmental Protection Agency ◽  
High Water ◽  
The United States ◽  
Water Levels ◽  
Storm Events ◽  
Freshwater Resource

Over the past decade, both the average rainfall and the frequency of high precipitation storm events in the Great Lakes Basin have been steadily increasing as a consequence of climate change. In this same period, cities and communities along the coasts are experiencing record high water levels and severe flooding events (ECC Canada et al. 2018). When cities are unprepared for these floods, the safety of communities and the water quality of the Great Lakes are jeopardized. For example, coastal flooding increases runoff pollution and contaminates the freshwater resource that 40 million people rely on for drinking water (Lyandres and Welch 2012, Roth 2016). Since the Great Lakes are shared between two nations, the United States and Canada, the region is protected by several international treaties and national compacts, including the Great Lakes Water Quality Agreement (GLWQA) and the Great Lakes Restoration Initiative (GLRI). In order to increase climate change resiliency against flooding in the region, we recommend the United States Environmental Protection Agency (EPA) work with Environment and Climate Change Canada to relocate the GLRI under the GLWQA in order to guarantee consistent funding and protection efforts. We additionally recommend expansion of both agreements in their scope and long-term commitments to engender cooperative efforts to protect the Great Lakes against climate change.

scholarly journals Essay: Justiciability, Federalism, and the Administrative State

2017 ◽  
Author(s):  
Zachary D. Clopton
Keyword(s):  
United States ◽  
Separation Of Powers ◽  
Federal Court ◽  
The United States ◽  
Executive Branch ◽  
Judicial Power ◽  
Federal State ◽  
State Court ◽  
Access To Justice ◽  
Advisory Opinion

103 Cornell Law Review 1431 (2018)Article III provides that the judicial power of the United States extends to certain justiciable cases and controversies. So if a plaintiff bringing a federal claim lacks constitutional standing or her dispute is moot under Article III, then a federal court should dismiss. But this dismissal need not end the story. This Article suggests a simple, forward-looking reading of case-or-controversy dismissals: they should be understood as invitations to legislators to consider other pathways for adjudication. A case dismissed for lack of standing, for mootness, or for requesting an advisory opinion might be a candidate for resolution in a state court or administrative agency. And although the Supreme Court has frequently policed the delegation of the “judicial power of the United States,” legislative delegations of non-justiciable claims should not transgress those limits. Instead, case-or-controversy dismissals imply that non-Article III options are permissible.This formulation is more than a doctrinal trick. It has normative consequences across a range of dimensions. For one thing, this approach reinvigorates the separation-of-powers purposes of justiciability doctrine by turning our attention from judges to legislators. When courts seemingly use justiciability to curtail private enforcement or access to justice, we could re-interpret the results as revealing a legislative failure to authorize non-Article III options. More affirmatively, case-or controversy dismissals could be focal points for political pressure in favor of more rigorous enforcement of important laws that the federal executive may be shirking. Further, consistent with “new new federalist” accounts, this Article suggests another avenue for federal–state interactivity in the development and enforcement of federal law. This too is of added salience given that private and state enforcement may become even more significant in light of the current occupants of the federal executive branch.

scholarly journals Use of Executive Orders in Nigeria by the Executive Branch of Government in Time of Emergency

2020 ◽  
Vol 2 (3) ◽  
pp. 669-678
Author(s):  
Oluwapelumi Odunayo Osadola ◽  
Phebe Oluwatoni Ojo
Keyword(s):  
United States ◽  
United States Of America ◽  
Separation Of Powers ◽  
The United States ◽  
Executive Branch ◽  
The Other ◽  
Executive Order ◽  
Legal Regime ◽  
Executive Orders ◽  
Fourth Republic

Executive Orders are not invoked as a matter of course by the President or Governors heading the Executive Cabinet. These orders are exercisable when heads of the executive branch of government see for their needfulness and for smooth running of their governmental programmes or policies. Every Executive order must carry the force of law for it to be valid or to be duly recognised by the other branches of government which if not, the latter may question its constitutionality. The advantages of executive orders are very innumerable to mention however it has been said that the use of executive orders have assaulted the concept of separation of powers which is embedded in the 1999 Nigerian Constitution (as amended)as adopted from the United States of America. This paper focuses on the meaning and historical antecedent of executive orders in Nigeria, legal regime or statutory provisions of executive orders in Nigeria, executive orders versus doctrine of separation of power, challenges of executive orders under the 1999 constitution (as amended), praxis of executive orders under the Nigeria fourth republic and lastly is the conclusion and recommendations made thereto. To achieve these, the writers will make use of relevant materials at their disposal.

National Security Policy-Making and Cacophony of Voices in the Reagan Administration

1982 ◽  
Vol 38 (2) ◽  
pp. 129-146
Author(s):  
P.M. Kamath
Keyword(s):  
United States ◽  
Foreign Policy ◽  
National Security ◽  
Reagan Administration ◽  
Policy Making ◽  
Security Policy ◽  
National Interest ◽  
The United States ◽  
Foreign Affairs ◽  
National Security Policy

In the post-World War II period “national security” has become the most important concept commanding respect among policy-makers and demanding crippling-silence on the part of the national community. It is not necessary here to examine the reasons1, for this commandeering position given to the concept of national security, but in an objective sense, foreign affairs of any nation in the ultimate analysis is conducted to secure national security. In this sense national security essentially denotes a nation's determination to preserve at any cost some of its interests. Foremost are : territorial integrity, political independence and fundamental governmental institutions.2 In the contemporary world it is also a well established fact that the military, diplomatic and economic aspects of a nation's foreign affairs are inseperably interlinked with one another. While foreign policy aims at serving national interest through peaceful diplomatic means, military policy aims at preparedness to protect national interest in case foreign policy fails. The foreign policy of a nation has also to take into consideration economic states involved in a particular policy consideration. This is particularly true for a super power like the United States. Hence, in a sense, it is appropriate to term the combination of foreign and military policies of a nation as national security policy. Who makes national security policy in the United States? What are the special features of national security policy-making process? It is proposed to answer these questions in this paper with special reference to the Reagan Administration.

The United States: Creation, Reconstruction, the Progressives, and the Modern Era

2021 ◽  
pp. 97-182
Author(s):  
Steven Gow Calabresi
Keyword(s):  
United States ◽  
Judicial Review ◽  
Separation Of Powers ◽  
State Legislatures ◽  
Federal Court ◽  
The United States ◽  
Federal Courts ◽  
American People ◽  
State Governments ◽  
State Laws

This chapter focuses on the origins and growth of judicial review of the constitutionality of federal and state legislation in the United States. American judicial review emerged from the vertical federalism umpiring of the King-in-Council, which reined in errant colonies; and from the open political space created by bicameralism, the separation of powers, and federalism, which gave the federal courts the political leeway to engage in judicial review of the constitutionality of federal and state laws. American judicial review took its present form of allowing horizontal separation of powers and enumerated powers vertical judicial review during the critical years between 1776 and 1803 when the faith of the American people shifted away from state legislatures and state governments and toward stronger executives and courts and a much stronger national government. This theory is set forth correctly by Professor Gordon S. Wood in both articles he has shared with me and in conversation. The addition of the three Reconstruction Amendments, and the enormous statutory expansions of federal court jurisdiction and of the number of lower federal court judges after the Civil War, occurred for rights from wrongs reasons. They led, after the incorporation of the Bill of Rights against the states between 1940 and 1970, to a situation where the Supreme Court now reins in errant state legislatures in much the same way the King-in-Council used to rein in errant colonial legislatures.

scholarly journals The Fourth Branch of Government: How Direct Democracy is Altering the Structure of State Governments

2011 ◽  
Vol 8 (1) ◽  
pp. 21-24
Author(s):  
Thomas Helgerman
Keyword(s):  
United States ◽  
Direct Democracy ◽  
Political Process ◽  
Balance Of Power ◽  
The United States ◽  
Executive Branch ◽  
State Governments ◽  
Checks And Balances ◽  
Legislative Branch ◽  
Set Up

This paper aims to explore how direct democracy (i.e. the initiative and referendum) affect the balance of power in state governments. Traditionally, like the federal government, state governments consist of three branches: executive, legislative, and judicial. Due to a complex system of checks and balances, one branch cannot become too powerful, adhering to an anti-monarchy sentiment of the founders of the United States. In this set-up, the legislative branch is responsible for creating policy, the executive branch is responsible for implementing it, and the judicial branch is responsible for interpreting it. My thesis is that direct democracy, by allowing the populous to directly implement policy without bearing the responsibility for their actions as politicians do, undermines the legislative branch and therefore representative democracy itself, leading to irresponsible legislation that is not subject to the scrutiny of the United States political process.

Constitutional Authority for the Transboundary Deployment of Armed Force

2020 ◽  
pp. 471-496
Author(s):  
Bakhtiyar Tuzmukhamedov
Keyword(s):  
United States ◽  
Soviet Union ◽  
Foreign Relations ◽  
Separation Of Powers ◽  
The United States ◽  
Foreign Affairs ◽  
The Soviet Union ◽  
Perspective Drawing ◽  
The Russian Federation ◽  
Commander In Chief

This chapter assesses the formal constitutional framework of authorization of foreign deployments of uniformed personnel, both formed units and individual service members. The initial volume of the Fourth Restatement of Foreign Relations Law does not ponder general matters of separation of powers and specifically in the realm of foreign affairs and national security. Apparently, this discussion is left to subsequent installments. The Third Restatement briefly addressed the separation of powers in foreign relations, in particular referring to the “continuing controversy as to whether the President can deploy the forces of the United States on his own authority for foreign policy purposes short of war, and, if so, whether that authority is subject to Congressional control. Nor is it agreed to what extent Congress can control decisions of the President as Commander in Chief in the conduct of wars authorized by Congress.” The United States is not unique in that respect, and similar controversies, whether in law or in practice, may and do occur in other jurisdictions. This chapter offers a comparative perspective, drawing from experiences of the Russian Federation and its predecessor, the Soviet Union and its heirs.

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