For Immediate Release: August 26, 2008

Fourth Annual “Endangered Environmental Laws” Student Writing Competition (2008-09)

Co-sponsored by The Environmental Law Institute
The American Bar Association Section of Environment, Energy, and Resources
The National Association of Environmental Law Societies

(Washington, DC) — The Constitution has long been interpreted by the courts and understood by most Americans to support comprehensive environmental protections. However, arguments targeting the constitutional legitimacy of environmental laws continue to gain traction in the federal courts. To inform the debate, we invite law students to submit papers exploring current issues of constitutional environmental law.

AWARD: $2000 cash prize and an offer of publication in the Environmental Law Reporter.

TOPIC: Any topic addressing recent developments or trends in U.S. environmental law that have a significant constitutional or “federalism” component. (See sample topics below.)

ELIGIBILITY: Students currently enrolled in law school (in the U.S. or abroad) are eligible, including students who will graduate in the spring or summer of 2009. Any relevant article, case comment, note, or essay may be submitted, including writing submitted for academic credit. Jointly authored pieces are eligible only if all authors are students and consent to submit. Previously published pieces, or pieces that are already slated for publication, are ineligible.

DEADLINE: Entries must be received no later than 5:00 PM ET on April 6, 2009. Email essays (and questions) to Lisa Goldman at goldman@eli.org. You will receive a confirmation by email.

SUBMISSION REQUIREMENTS:

Cover page. This page must include the following information:

• Title;
• Author’s name, year in law school, and expected graduation date (to facilitate impartial judging, the author’s name and law school must NOT appear anywhere in the essay, other than on the cover page);
• Law school name and address;
• Author’s permanent and school mailing address, email address, and phone number (IMPORTANT: indicate effective dates for all addresses);
• Abstract (limited to 100 words) describing the piece;
• Certification that the article has not been published and is not slated for future publication (while authors may submit their articles to other competitions, publication elsewhere will disqualify an entry from further consideration); and
• Statement as to where the author(s) learned about this competition

Format. Submissions may be of any length up to a maximum of 50 pages (including footnotes), in a double-spaced, 8.5 x 11-inch page format with 12-point font (10-point for footnotes). Citation style must conform to the Bluebook. Submissions must be made by email attachment in Microsoft Word format, with the cover page as a separate attachment.

CRITERIA AND PUBLICATION: The prize will be awarded to the student work that, in the judgment of ELI, ABA-SEER, and NAELS, best informs the debate on a current topic of constitutional environmental law and advances the state of scholarship. ELI reserves the right to determine that no submission will receive the prize. While only one cash prize is available, ELI may decide to extend multiple offers of publication in the Environmental Law Reporter.

For more about ELI and its Endangered Environmental Laws Program, including past writing competitions, please visit www.eli.org and www.endangeredlaws.org. Information about ABA/SEER may be found at www.abanet.org/environ/. Information about NAELS may be found at www.naels.org.

SAMPLE TOPICS FOR THE 2008-09 ELI-ABA-NAELS WRITING COMPETITION

Students may choose a topic from below or develop their own constitutional environmental law topic.

1. Challenges to environmental plaintiffs’ standing to be heard in federal courts–

   1. Standing to sue to enforce environmental laws. E.g., Earth Island Institute v. Ruthenbeck, 490 F.3d 687 (9th Cir. 2007), cert. Granted, Summers v. Earth Island Institute, 128 S. Ct. 1118 (Jan. 18, 2008); implications of Massachusetts v. EPA, 127 S. Ct. 1438 (2007), and progeny; Coalition for a Sustainable Delta v. Carlson, 2008 WL 2899725 (E.D. Cal. July 24, 2008).

   2. Standing to sue for “increased risk of harm.” E.g., implications for environmental protection of an ever-higher bar in the D.C. Circuit for establishing standing in risk-based injury cases. See Public Citizen v. NHTSA, 513 F.3d 234 (D.C. Cir. 2008) (Sentelle, C.J., concurring) and 489 F.3d 1279 (D.C. Cir. 2007); and NRDC v. EPA, 440 F.3d 476 (D.C. Cir. 2006), vacated by NRDC v. EPA, 464 F.3d 1 (D.C. Cir. 2006).

2. Application to climate-change cases of other constitutional theories, such as statutory and foreign affairs preemption, political question doctrine, dormant Commerce Clause, and Compact Clause. E.g., possible challenges to regional cap-and-trade schemes, such as RGGI and the WCI; the impact of a future federal cap-and-trade law on state and regional climate frameworks; challenges to California’s tailpipe emissions regulations, as adopted by 16 other states; and efforts by states and local entities to recover damages from industry for contributions to global climate change.

   See Green Mountain Chrysler Plymouth Dodge Jeep v. Crombie, 508 F.Supp.2d 295 (D. Vt. 2007) (on appeal in 2d Cir., Nos. 07-4342, -4360); Central Valley Chrysler-Jeep, Inc. v. Goldstene, --- F.Supp.2d ---, 2008 WL 2600786 (E.D. Cal. June 24, 2008); Lincoln Dodge, Inc. v. Sullivan, No. 06-00070 (D. R.I.), filed Feb. 13, 2006; California v. General Motors Corp., 2007 WL 2726871 (N.D. Cal. Sept. 17, 2007) (on appeal in 9th Cir., No. 07-16908); Comer v. Murphy Oil, No. 1:05-CV-436 (S.D. Miss. Aug. 30, 2007) (granting motion to dismiss) (on appeal in 5th Cir., No. 07-60756); Connecticut v. American Electric Power Co., 406 F.Supp.2d 265 (S.D.N.Y. 2005) (on appeal in 2d Cir., No. 05-5104); and Kivalina v. Exxonmobil Corp., No. 08-01138 (N.D. Cal.), filed Feb. 26, 2008.

3. Legislative developments and potential court challenges to Congress’s authority under the Commerce Clause and other constitutional provisions (e.g., Spending Power, Property Clause, and Treaty Power) to afford comprehensive protection to the “waters of the United States.” E.g., Clean Water Restoration Act (H.R. 2421, S. 1870). In the wake of SWANCC v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001), and Rapanos v. United States, 547 U.S. 715 (2006), and the resulting confusion for Clean Water Act administration and enforcement, much of the debate over the constitutional reach of federal water protections has shifted from the federal courts to Congress.

4. Invocation of constitutional due process to cap punitive damages in environmental cases. See Exxon Shipping Co. v. Baker, 128 S. Ct. 2605 (2008), establishing as an upper limit in maritime cases a 1:1 ratio between compensatory and punitive damages. Justice Ginsburg, writing separately, wondered if the Court intended to signal that this ratio would eventually become a ceiling imposed by due process.

5. Impact of preemption jurisprudence (including in non-environmental cases) on environmental protection. See Riegel v. Medtronic, Inc., 128 S. Ct. 999 (2008); Levine v. Wyeth, 944 A.2d 179 (Vt. 2006), cert. Granted, Wyeth v. Levine, 128 S. Ct. 1118 (Jan. 18, 2008); Pacific Merchant Shipping Association v. Goldstene, 517 F.3d 1108 (9th Cir. 2008).

The Environmental Law Institute® is an independent, non-profit research and educational organization based in Washington, DC. The Institute serves the environmental profession in business, government, the private bar, public interest organizations, academia, and the press. For further information from the Environmental Law Institute, please contact Brett Kitchen at 202-939-3833 or pressrequest@eli.org.
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