Jamison Colburn

• Pennsylvania State University

The Council on Environmental Quality (CEQ) was created by the National Environmental Policy Act (NEPA) which, by its terms, casts CEQ as an advisor to the president. President Nixon first ordered CEQ to create “guidelines” for federal agencies discharging their duties under NEPA in 1970. Those guidelines also influenced the courts that first interp...

Arbitrariness review of agency rulemakings has long set "political" influences aside as a special case worthy of special scrutiny. This essay argues that the orthodox account of arbitrariness review in this vein makes some untenable assumptions about both reviewing courts and agencies as agents. If we seek more agency responsiveness to reason right...

In our legal tradition there are permits and there is property and they are like oil and water. The norms, institutions, and agents of one seem antagonistic — even antithetical — to the other. Property is reliable, tangible, and intimately bound up with one’s autonomy, one’s severability from society. Government permissions, by contrast, are fleeti...

What does it mean to say that an administrative agency is a source of law? Agencies constantly generate what our society regards as law, making and remaking legal obligations at a frenetic pace. Yet most of the rules agencies make lack the force of law and recognizing those that have this force is often an exceptionally complicated task. It is a ta...

In this essay for a symposium on new directions in environmental law, I reflect back on the last 35 years of Endangered Species Act (ESA) practice and offer several modest reforms. My claim is that conservation has been growing increasingly quantitative and risk-based, much like other fields of regulation, but that big problems lie ahead if this tr...

Property is surely among the U.S. Constitution's principal objects of protection. As a right, though, property is jurisdictionally complex. The underlying law defining property can always change, making the constitutional protection of property inherently indexical, like the words "here" and "now." Not surprisingly, the factors and tests the Suprem...

Wildfire is a growing threat to suburban and exurban communities, partly because fires have grown more severe and frequent as a result of land use and climatic influences and partly because more people are living in fire prone areas. The so-called Healthy Forests Restoration Act (HFRA), the federal government's response to this crisis, is a deeply...

This essay grew out of a symposium on Catholic social thought. It makes the case for solidarity and subsidiarity as principles of applied (secular) ethics by injecting them into what must be their most challenging context: catastrophic global climate disruption. It argues that the principles of solidarity and subsidiarity hold tremendous potential...

What does it mean to say that an administrative agency is a "source" of law? Agencies constantly generate what we regard as law, making and remaking legal obligations at a frenetic pace. Yet many (if not most) of the rules agencies make lack the force of law and identifying those that have it is often an exceptionally difficult task. It is a task,...

Conservation's richest innovation in decades has been the conservation easement and, by most accounts, it is still growing in both prevalence and scale. Private actors have used this device to work around the gridlock of the public sphere, achieving broad scales with limited capital. But this turn toward private ordering to protect nature has begun...

In the Court's two wetlands cases last Term, a question of statutory interpretation divided the justices sharply, in part because so much rides on the particular statutory provision at issue. The provision, a cryptic definition within the Clean Water Act (CWA), has now provided three separate occasions at the Court where the justices have confronte...

Public lands law in this country has been gridlocked for more than a decade at the intersection of democracy and ecology. The public is still made to believe that the conservation versus preservation of our discrete, bounded parcels of public land is the central issue and that political success is defined by the capturing of a parcel of public land...

There is wide agreement among conservation activists and scientists alike that loss and alteration of habitat are the leading threats to biodiversity in America. Suburbs and exurbs, though, are only beginning to acknowledge that they are the problem in the struggle to stem the tide of sprawl and other economic processes producing ecosystem-wide hab...

Mitigation banking of habitat acreage under threat of development is a recent innovation of the Fish and Wildlife Service (FWS). As FWS tries to discharge its duties under the Endangered Species Act with extremely limited agency resources, innovations like this are becoming critically important. The policy guidance issued in 2003 structuring this h...

In this paper I argue that the agencies charged under federal law with the protection and restoration of wildlife populations are to a fault too rational, too deliberative, too sequential in operation, and too focused on putting various tracts of federal realty on highly protective pedestals. To an even greater degree than modern legislation, legal...

The separation of powers became the ambivalent, largely rhetorical tradition it is today as a result of the plasticity of its core concepts, power, authority, and liberty. Throughout the Progressive and New Deal eras its basic meaning was complicated by an experimentalist reinvention of its traditional institutional faces. This experimentalism resu...

Traditional administrative law sees its core, the Administrative Procedure Act, from only one very confining point of view: as an appliance of judicial "checking" of bureaucratic power pursuant to a neotraditionalist adaptation of the separation of powers. The political history of the Act and, indeed, the separation of powers tradition as a whole,...

The October 2008 Term at the United States Supreme Court involved five cases nominally bearing on "environmental law" in the United States. In addition to yet another standing case 1 and a preliminary injunction case, 2 the Court heard three statutory interpretation cases—one involving the Superfund cleanup statute, 3 two involving the Clean Water...

Thesis (doctoral)--Columbia University, 2007. Includes bibliographical references.