Supreme Court to Hear Landmark Case on Climate Change Emissions: Judgment Day Comes in Global Warming Litigation

The Supreme Court has historically been reluctant to involve itself in environmental matters, especially those relating to the regulation of releases or emissions of harmful substances. The court has typically been content to allow the legislative branch to fashion appropriate regulations to address environmental issues and for the executive branch to enforce those regulations. The acceptance of certiorari in the Second Circuit's Connecticut v. AEP case was a surprise because it not only involves environmental regulation, but also the common law applicable to public nuisance actions seeking redress for climate change damage allegedly caused by emissions of greenhouse gases (GHGs). The AEP case is shaping up to be a blockbuster in the climate change debate in the United States, and the decision could have broad repercussions in not only future litigation involving climate change, but also GHG legislation and the insurance available to address damage due to weather-related events.     

The Green New Deal Must Preserve the Existing Nuclear Fleet

Abstract

As the largest source of carbon-free energy in the United States, nuclear energy must play a vital role in reducing emissions. This article suggests the Green New Deal, an ambitious federal proposal to address climate change, should aim to preserve the existing nuclear fleet by authorizing states to establish zero emission credit (“ZEC”) programs. The ZEC programs will provide credits, in the form of revenue, for the carbon-free attribute of nuclear energy. This article posits the ZEC programs should be based on a model ZEC program developed by the Federal Energy Regulatory Commission and explicitly authorized by amendment of the Federal Power Act to avoid issues of preemption.     

Case Baiting

In 2014, New Jersey passed the Sports Wagering Act, permitting sports betting at state casino and racetrack venues, in direct conflict with the federal Professional and Amateur Sports Protection Act. In 2017, South Dakota passed Senate Bill 106, requiring that certain e-commerce retailers collect and remit sales tax, in violation of federal law. The two U.S. Supreme Court decisions arising from challenges to these state statutes—South Dakota v. Wayfair and Murphy v. NCAA—exemplify U.S. Supreme Court “case baiting.” Case baiting is a tactic states implement to challenge federal directives by passing state legislation that directly conflicts with federal law to lure the Court into granting certiorari and ruling in their favor. This article argues that South Dakota's and New Jersey's triumphs pave the way for other jurisdictions to pursue similar strategies across multiple legal issues such as abortion restrictions and immigration law. In addition, this article suggests that case baiting invites further scholarly exploration of important policy considerations, including the use of this tactic as a novel approach to the application of law and strategy, whether case baiting promotes the Court's progression toward a more quasi-legislative role, and whether passing conflict legislation violates state legislators’ oaths of office.     

The Purchase of Insurance Across State Lines in the Individual Market

Proposals to allow the purchase of insurance across state lines (PASL) have gained some support in recent years. Health insurers have traditionally been allowed to sell a policy only within the state that approved and regulates that particular policy. PASL would allow insurers to sell a policy approved in one state to people residing in any state. Any federal legislation to enact PASL in an individual insurance market would have to address two main legal considerations: (1) the McCarran-Ferguson Act, which allows the states to retain their regulatory authority over insurance; and (2) a constitutional prohibition against the commandeering of state officials by the federal government. This paper outlines these obstacles and potential solutions, and concludes that as long as the legislation is thoughtfully drafted, there is no significant legal or constitutional barrier to enacting PASL. Additionally, the concepts discussed here may be relevant to any federal health reform legislation involving regulation of health insurance or the use of state officials.     

Flooding the Permafrost: The Role of Environmental Claims in the Effort to Regulate Global Warming Emissions

This article focuses on the role that public and private claims play in spurring, supporting, supplementing, and, at times, impeding, climate change initiatives. Sections 1 and 2 describe the essential features of greenhouse gases and briefly detail the history of federal initiatives and the collapse of will that precipitated many of the claims filed by states, municipalities, and environmental groups. Section 3 discusses plaintiffs' early challenges and efforts to compel regulatory action; nuisance actions that have been filed by states, public interest groups, and individuals; and the possible trajectory of future claims. Section 4 discusses the role of climate change claims in enforcing compliance, improving corporate responsibility, and promoting interorganizational benchmarking in governmental and market-based standards programs. Section 5 concludes with a discussion of the precautionary principle and ways in which companies can protect themselves against future climate change-related claims.     

Five Year Review: Evolving Environmental Law and Advice to Green Lawyers

Five years ago, the U.S. environmental legal market was in a state of uncertainty after the 2007–2008 financial crisis, Congress's failure to pass a comprehensive climate change bill, and the Deepwater Horizon oil spill in the Gulf of Mexico. Since that time, the environmental job market has improved, and progress, particularly in addressing climate change and in facilitating renewable energy development, has been made at the state and federal levels. However, the election of President Trump in late 2016 and empowerment of a Congress hostile to environmental regulation threaten to undo many of the hard-fought environmental victories, especially at the federal level. New York State and its municipalities have the opportunity to lead—and New York environmental lawyers are ready to use creativity and innovation to tackle the complex environmental problems facing our communities and planet in this uncertain climate.     

Climate Change Meets the Commerce Clause: Obstacles and Alternatives for State and Local Responses to Climate Change

Abstract

Climate change is a global problem resulting from our aggregate emissions. The United States has failed to take significant action on a federal level to address our country’s contributions. There are options available at the state and local levels to reduce emissions and to prepare for the effects of climate change. However, the commerce clause and the doctrine of federal supremacy may bar states and municipalities from adopting those strategies. This article discusses tactics to circumvent those restrictions, and potential changes to commerce clause jurisprudence that would give states and municipalities greater flexibility to act where Congress has not.     

Reviewing regulation of assisted reproductive technology in New South Wales: the Assisted Reproductive Technology Act 2007 (NSW)

In November 2007, the Assisted Reproductive Technology Act 2007 (NSW) was passed to deal with a number of issues under the spectrum of reproductive technologies. The legislation was the outcome of a review conducted by the New South Wales Health Department and adopts a different approach to other Australian statutory regulation. This article considers the approach of the new legislation and whether there are some issues that require further consideration under the new regulatory regime. In particular, discussion is focused on the failure of the new legislation to address eligibility for reproductive treatments as well as the use of pre-implantation genetic diagnosis for the creation of tissue-matched children.     

Chronic disease and disadvantage: the new politics of HIV infection

HIV infection is now perceived as the end stage of a chronic disease that is spreading most rapidly among blacks and Hispanics. The politics of the HIV epidemic in the 1980s were dominated by four interacting factors: fear and fascination; who had the disease and to whom it seemed to be spreading; the endemic problems of United States social policy; and the impact on policy of advances in scientific knowledge. This paper analyzes the political history of each of these factors and describes the dominant policies of the federal government and the states regarding HIV in the areas of surveillance, prevention, research, and financing. Four uncertainties will have a profound influence on the future politics of the HIV epidemic: how the states and the federal government will address the general problems of paying for the care of people with chronic diseases and providing access to care for the uninsured and the underinsured; the number and distribution of the sexual behaviors that transmit infection with HIV and the effectiveness of policies to persuade people to modify these behaviors; precisely who uses addictive drugs and the effectiveness of measures to change their behavior; and the natural history of the virus.     

Is there an acceptable answer to rising medical malpractice premiums?

This article explores the key issues involved in the attempts at reform of the present medical malpractice system. Investigating the effects that federal tort reform legislation would have on physicians, patients, lawyers, and the medical malpractice insurers, Dr. Gunnar succinctly outlines the issues surrounding the present "crisis in healthcare" and explores the separate interests involved. The article examines the economic forces influencing the medical malpractice insurance industry, reviews previous tort reform, and predicts the future of federal tort reform legislation. Dr. Gunnar concludes by proposing alternatives for malpractice reform.     

Legislation without Implementation: Mandatory Lead Paint Hazard Inspection and Remediation of Housing Rented in New Jersey

This article examines the current legislative and administrative scheme for the regulation of lead hazards in houses rented or sold in New Jersey, and makes comparisons with Massachusetts' statutory scheme. This article also investigates other states' attempts to achieve prevention of residential lead poisoning. This article ultimately proposes that to effectuate the goals of its lead prevention legislation, New Jersey should implement surveillance systems and standardized procedures to ensure that housing is properly inspected and remediated for lead hazards prior to issuing certificates of occupancy of rental homes.     

A Need Not Being Met: Providing Paid Family and Medical Leave for All Americans

Many parents in the United States face the quandary of whether to take time off from work to care for themselves, their children, or other family member, understanding that their jobs may not be there upon return and they will receive no income during their leave. The Family and Medical Leave Act has not lifted this burden; it only provides for unpaid leave. Four states and several cities have implemented paid family and medical leave statutes with both employees and employers benefiting. This Note proposes a uniform paid family and medical leave statute based on other countries’ statutes; proposed federal legislation; and statutes in New York, California, and San Francisco.     

Using the New Jersey Spill Act Safe Harbor to Protect Lenders

Lenders in New Jersey have come to understand that they may be exposed to environmental liability for hazardous substances affecting collateral under federal and state law. While initially the parameters of this liability were not clearly understood, the New Jersey legislature and the U.S. Congress have enacted amendments to environmental laws in an attempt to clarify the activities that lenders may undertake to protect their interests while avoiding environmental liability, before making a loan, after making a loan but before foreclosure, and after acquiring title through foreclosure. This article describes how lenders can protect themselves from liability under the New Jersey Spill Compensation and Control Act by availing themselves of the protections of the act's safe harbor provisions.     

Holding back the tide: policies to preserve and reconstruct health insurance coverage in Maryland

Over the past decade, state officials have pursued a variety of strategies to protect and expand health insurance coverage for their residents. This article examines the course of action in Maryland, where new initiatives were shaped around the state's unique hospital payment system and its reimbursement of uncompensated care, an evolving Medicaid and children's health program, and regulation of the small group health insurance market. Several important patterns emerge from the Maryland experience. First, even the most incremental initiatives--programs intended to aid a few thousand beneficiaries--bring into play the very issues that hamper comprehensive reforms: who is deserving of mutual aid and what is the proper role of government versus private entities in administering that aid. In Maryland, these issues generate conflict not only between Democrats and Republicans but also urban and rural interests. Second, all of the important reforms of the past decade were undertaken primarily in reaction to federal policy initiatives. Contrary to rhetoric lauding states as the "laboratories of democracy," the political impetus for reform and basic policy options emerge from interaction between federal and state debates. Third, even with budget surpluses and Democrats in control of the governorship and legislature, Maryland did not move aggressively toward universal health insurance. Now, with a much weaker economy and a new, Republican governor, the primary challenge will be to prevent further erosion of insurance coverage. The Maryland experience reiterates that each step toward greater health security, no matter how small, is a major technical and political challenge and that it will be difficult if not impossible to rely on states to secure coverage for all Americans in the foreseeable future.     

Adoptions Gone Awry: Enhancing Adoption Outcomes Through Postadoption Services and Federal and State Laws Imposing Criminal Sanctions for Private Internet Rehoming

The federal government should invest in adopted children who make up the future of the country and are in dire need of rehabilitation and therapy because of their past circumstances. If the government steps in to rescue vulnerable children from inadequate or abusive birth parents by removal, it should also intervene when adopted families are faced with behavioral problems of adopted children that the adopted parents cannot address on their own. Postadoption services need to be accessible and effective to ensure the success of adopted families. Assisting families in crisis postadoption will lower the instances of dissolution and rehoming and keep adoptive families intact. In cases in which postadoption services fail, uniform federal legislation is necessary to make it a federal crime to advertise children for adoption on the Internet without proper certification and state legislation is required to make it a crime to pass on adopted children to strangers without judicial consent, to dissuade Internet rehoming. Internet rehoming of adopted children should be a serious crime as it is tantamount to child trafficking.© 2014 Association of Family and Conciliation Courts

Key Points for the Family Court Community:
• Postadoption services need to be more accessible and more narrowly tailored to the needs of adoptive families to ensure the success of adoptions.
• Better postadoption services create better adoptive families and adoptive parents will not reach the point of dissolution or private Internet rehoming.
• Adoptive parents should be provided with information regarding all available postadoption resources after adoption is finalized and a government Web site should be created that lists all available resources.
• The federal government needs to provide funding to states that specifically target postadoption services.
• A uniform federal statute is required to punish parties who use Internet forums to avoid government oversight and privately rehome their adopted children.
• States should enact laws that criminalize the unauthorized interstate placements of children.

     

Juvenile Delinquency in the Netherlands: Trends and Perspectives

A comparison is made, on several levels, of the laws of various states in the United States and the State of Israel concerning the crime of rape as personally committed by a husband upon his wife, known as “marital rape.” Among the fifty states, there is a sharp division whether such an act is criminal at all. The majority of states have held the act not criminal based primarily upon the common law doctrine of marital immunity first enunciated in England by Lord Hale. Some of these states have followed the Model Penal Code and codified the immunity concept within their criminal law.

Those states which have rejected Hale's immunity concept include New York, New Jersey, Alabama, and others. Upon judicial review, New York invalidated its statutory immunity for husbands by declaring it unconstitutional and a violation of the fourteenth amendment of the U.S. Constitution. New Jersey, as an example, statutorily eliminated the defense of marital immunity for rape, while other states simply rejected Hall's doctrine altogether. In 1980, Israel judicially rejected the defense of marital immunity insofar as a Jewish married couple was concerned by selectively utilizing Jewish religious law. It later enacted legislation eliminating the defense of marital immunity for rape for all persons regardless of religion.     

Protective order legislation: Trends in state statutes

Very little research has examined state legislation on protective orders. This study examined recent state statutes and compared the findings with a landmark 1988 study. Results indicated that more recent laws provided greater access to victims and expanded their eligible populations to include categories that were excluded in earlier legislation (i.e., dating partners, sexual partners, and same-sex partners). Orders increased slightly in duration and there were more access to them outside of normal working hours. Compared with earlier legislation, newer laws were more apt to authorize judges to fashion remedies that address financial matters. Penalties for violations remained relatively stable, although states were increasingly willing to use enhanced sanctions for repeat offenders. States continued to use mandatory arrest to enforce orders, although this trend was not as pronounced as one might have anticipated. Finally, legislators incorporated many aspects of new federal legislation into state statutes.     

New York's Blue Cross and Blue Shield, 1934-1990: the complicated politics of nonprofit regulation.

The story of New York Blue Cross is one of complex interaction with state and federal regulators and also with hospitals, the medical profession, commercial insurers, and the public, who make up the regulatory environment. Negotiation, cooperation, and adaptation among parties whose goals and assumptions were partly parallel characterize the relationships. As we can see from New York Blue Cross's origins and its role in the development and administration of certificate-of-need legislation, Medicare, insurance practice and regulation, and hospital rate setting, this story does not represent the capture of government by a special interest, nor the gradual souring of a public interest organization, nor disinterested and distant government regulation.     

Special report on reimbursement. The safe harbor for small investment interests: where do joint ventures go from here?

There is no specific federal self-referral legislation presently proposed or in effect that statutorily prohibits providers from referring Medicare or other patients to entities in which the referrers have an investment interest, except for existing "Stark" legislation, which applies only to clinical laboratory services, effective January 1, 1992. (See Newsletter, Vol. 6, No. 1, January 1991, at 3.) Thus, health care joint ventures are not per se illegal. The publication of the Safe Harbor Regulations does nothing to change this fundamental fact, and it should not cause providers to abandon existing joint ventures, or planned ones, in a "knee-jerk" fashion, without careful analysis. Of course, there is no guarantee that expanded "Stark" legislation, or some other new self-referral legislation, will not be enacted in the future to prohibit providers from referring patients to entities in which they have an investment interest. Because of this uncertainty, all health care joint ventures should contain "unwinding" provisions to govern the rights and obligations of investors in the event that the venture is required to, or the participants voluntarily elect to, dissolve. Any new venture being contemplated should plan for dissolution, and existing ventures should undertake an internal review of their charter documents to assess whether the rights and duties of all participants upon dissolution are properly spelled out. If not, amendments should be made now, while all participants are on good terms. A failure to agree in advance upon such important issues is an invitation to discord, and possibly even litigation.