Current Issue


David L. Markell – The legal environment for local government in Florida (the “State”) is beginning to change when it comes to sea-level rise (“SLR”).  Innovations in institutional structure and governance strategies are underway in the State as well.  This Article reviews three recent developments, which relate primarily to comprehensive planning in the State, and explores their implications for Florida’s local governments, among others.  It begins, in Part II, with the State’s decision, in 2011 legislation, to give local governments a new, optional tool—referred to as “Adaptation Action Areas” (“AAAs”)—to address sea-level rise and related issues in local comprehensive plans.  Part III turns to a second piece of Florida legislation, the State’s 2015 “Peril of Flood” legislation, which mandates that local governments begin to address sea-level rise and other causes of flood-related risks through their comprehensive planning processes.  Part IV discusses a third initiative, the Southeast Florida Regional Climate Change […]

Emerging Legal and Institutional Responses to Sea-Level Rise in Florida and Beyond


Laurie Ristino & Gabriela Steier – Soil and water are inextricably related, a fragile and complex system upon which agriculture and, in turn, our species, depend.  Yet we tend to regard this relationship and its criticality in the singular dimension of drought, hindering progress in policy and law to improve agricultural sustainability.  Without necessary policy reforms designed to protect the delicate balance between soil health, water conservation, and agricultural yield, we are foreclosing a food secure future for our nation.  America’s agriculture and farm policy, as embodied in the Farm Bill, has devastated natural resources and, thereby, nature.  Single resource advocacy and land management, such as water or soil conservation, fails to address this systems-based challenge, which is inextricably tied to the farm bill safety net.  American agriculture, as defined by the U.S. Department of Agriculture (“USDA”), commands the majority of the land mass of the lower forty-eight states.  Agriculture […]

Losing Ground: A Clarion Call for Farm Bill Reform to Ensure a Food Secure Future


Lauren Packard – In 2015, the Supreme Court decided Michigan v. EPA, finding that the U.S. Environmental Protection Agency (“EPA”) interpreted section 112 of the Clean Air Act unreasonably when it decided to regulate toxic mercury emissions from power plants without first considering compliance costs.  Justice Scalia, writing for a 5-4 majority, found that the term “appropriate and necessary” in section 112 “naturally and traditionally” includes a consideration of costs.  Consequently, the Court found that EPA’s decision to regulate mercury emissions did not warrant deference under Chevron v. Natural Resources Defense Council because EPA did not predicate its determination on an analysis of compliance costs.  Rather, EPA decided to regulate emissions from power plants because such emissions pose a public health hazard, pre-existing regulations did not adequately address this hazard, and control technologies exist to mitigate it.  In her dissent, Justice Kagan pointed out that the agency had considered costs […]

Michigan: An Intrusive Inquiry into EPA’s Rulemaking Process



Channing Jones – Market pressures will likely drive a continued push for the build-out of natural gas infrastructure in the form of pipelines, compressor stations, storage facilities, and liquefied natural gas (“LNG”) terminals (collectively, “natural gas facilities”).  Where these facilities would transport natural gas in interstate or foreign commerce, their siting, construction, and operation are generally governed by the Natural Gas Act (“NGA” or the “Act”) and fall within the regulatory jurisdiction of the Federal Energy Regulatory Commission (“FERC” or the “Commission”). Natural gas project proposals commonly encounter controversy and resistance, indicating a considerable amount of future litigation as proposals to construct or expand natural gas facilities grow with supply and demand pressures.  One area this litigation may center around is the limited but sometimes decisive range of authority states hold to regulate natural gas facilities with respect to certain environmental matters, chiefly in certifying state water quality standards compliance under […]

The Natural Gas Act, State Environmental Policy, and the Jurisdiction of the Federal Circuit Courts