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Volume 43 (2016)

Is the Clean Air Act Unconstitutional? Coercion, Cooperative Federalism and Conditional Spending after NFIB v. Sebelius

The Clean Air Act, like many federal environmental statutes, relies upon the cooperation of state environmental agencies for its execution and enforcement. If states do not cooperate, the Clean Air Act obligates the federal government to regulate in their stead as well as to impose potentially draconian sanctions. Specifically, the Act calls for the revocation of federal highway funds in noncooperative states. There are reasons to suspect that the Clean Air Act’s sanction regime is unconstitutional, particularly in the wake of National Federation of Independent Business v. Sebelius, which enforced a limit on the federal government’s ability to induce states to cooperate with federal programs.

Mar 25, 2020
Jonathan H. Adler and Nathaniel Stewart

Illegal Marijuana Cultivation on Public Lands: Our Federalism on a Very Bad Trip

Fueled by increasing demand for marijuana, illegal cultivation of the drug on public lands is causing massive environmental harm. The federal government lacks the resources to wage what would be a difficult and costly campaign to eradicate these illegal grow sites and instead focuses its limited resources on enforcing the federal marijuana ban.

Mar 25, 2020
Hope M. Babcock

The Property Clause and Its Discontents: Lessons from the Malheur Occupation

The occupation of the Malheur National Wildlife Refuge in Oregon by a group of armed militants led by Ammon Bundy during January 2016 spotlighted public land management for a largely oblivious American public. The militants’ month-long occupation was only the latest of several armed confrontations in recent years, one of them at Bundy’s father’s ranch in Nevada. What made the Malheur incident unusual was not only the length of the occupation but also the claims of the militants that their occupation was based on constitutional principles.

Mar 25, 2020
Michael C. Blumm and Olivier Jamin

The Energy Prosumer

Decentralization is becoming a dominant trend in many industries, and the electricity industry is no exception. Increasing numbers of energy consumers generate their own electricity and/or provide essential grid services such as storage, efficiency, and demand response. This Article offers a positive account of the emergence of these new energy actors, which it calls “energy prosumers.”

Mar 25, 2020
Sharon B. Jacobs