Erin Ryan
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199737987
- eISBN:
- 9780199918652
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199737987.003.0007
- Subject:
- Law, Constitutional and Administrative Law
Chapter Seven proposes a more modest modification to the anti-commandeering rule, requiring judicial deference to consensual state-federal legislative bargaining over federalism entitlements. ...
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Chapter Seven proposes a more modest modification to the anti-commandeering rule, requiring judicial deference to consensual state-federal legislative bargaining over federalism entitlements. Constitutional federalism directives can be viewed as default rules that confer jurisdictional entitlements to state and federal actors, but the normative entitlement of a legal rule is always matched with an infrastructural component that designates how and whether the normative entitlement may be shifted. This chapter explores the extent to which federalism doctrine allows consensually negotiated exchange of these entitlements—such as waiver of Eleventh Amendment state sovereign immunity, or state waiver of enumerated powers limitations when accepting spending power deals conditioned on federal policies. It advocates more uniform use of the Calabresi and Melamed “property rule” remedy rule that enables bargaining with entitlements, rather than the inalienability or liability rule alternatives. When the Rehnquist Court created the anti-commandeering entitlement that states hold against Congress (in partially invalidating the Low-Level Radioactive Waste Policy Act in New York v. United States), it did not allow for consensual intergovernmental bargaining to shift the entitlement. Using New York as a case study, the chapter proposes that Tenth Amendment entitlements be harmonized with the rest of federalism doctrine to enable consensual legislative bargaining. Leaving the normative part of the anti-commandeering rule in place while enabling states to bargain with their entitlement would yield new possibilities for balanced interjurisdictional governance while retaining the most protective aspects of the rule. The bilateral nature of the exchange ensures that the negotiated balance reflects the interests of both state and federal actors. It also taps unique legislative resources for values-balancing in the fact-intensive policymaking contexts where legislatures outperform courts. By incorporating state and federal judgment, intergovernmental bargaining is preferable to the unilateral federal assertions of power or deference to state prerogative that characterize traditional political safeguards.Less
Chapter Seven proposes a more modest modification to the anti-commandeering rule, requiring judicial deference to consensual state-federal legislative bargaining over federalism entitlements. Constitutional federalism directives can be viewed as default rules that confer jurisdictional entitlements to state and federal actors, but the normative entitlement of a legal rule is always matched with an infrastructural component that designates how and whether the normative entitlement may be shifted. This chapter explores the extent to which federalism doctrine allows consensually negotiated exchange of these entitlements—such as waiver of Eleventh Amendment state sovereign immunity, or state waiver of enumerated powers limitations when accepting spending power deals conditioned on federal policies. It advocates more uniform use of the Calabresi and Melamed “property rule” remedy rule that enables bargaining with entitlements, rather than the inalienability or liability rule alternatives. When the Rehnquist Court created the anti-commandeering entitlement that states hold against Congress (in partially invalidating the Low-Level Radioactive Waste Policy Act in New York v. United States), it did not allow for consensual intergovernmental bargaining to shift the entitlement. Using New York as a case study, the chapter proposes that Tenth Amendment entitlements be harmonized with the rest of federalism doctrine to enable consensual legislative bargaining. Leaving the normative part of the anti-commandeering rule in place while enabling states to bargain with their entitlement would yield new possibilities for balanced interjurisdictional governance while retaining the most protective aspects of the rule. The bilateral nature of the exchange ensures that the negotiated balance reflects the interests of both state and federal actors. It also taps unique legislative resources for values-balancing in the fact-intensive policymaking contexts where legislatures outperform courts. By incorporating state and federal judgment, intergovernmental bargaining is preferable to the unilateral federal assertions of power or deference to state prerogative that characterize traditional political safeguards.
Simon Avenell
- Published in print:
- 2017
- Published Online:
- September 2017
- ISBN:
- 9780824867133
- eISBN:
- 9780824873721
- Item type:
- chapter
- Publisher:
- University of Hawai'i Press
- DOI:
- 10.21313/hawaii/9780824867133.003.0006
- Subject:
- History, Asian History
This chapter traces the emergence and evolution of a transnational movement opposing the planned dumping of Japanese radioactive waste material in the Pacific Ocean near the Mariana Trench. With its ...
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This chapter traces the emergence and evolution of a transnational movement opposing the planned dumping of Japanese radioactive waste material in the Pacific Ocean near the Mariana Trench. With its growing stockpile of radioactive waste from nuclear power plants, in the 1970s Japanese officials hatched plans to dump radioactive material in steel canisters in the Pacific. In response, activists on islands in Micronesia mobilized in staunch opposition in the late 1970s. They were joined by Japanese antinuclear groups who brought Pacific activists to Japan to give speeches and lobby officials. The chapter explores how this transnational struggle was able to force a postponement and ultimately the abandonment of the ocean dumping plan. As with movements opposing industrial pollution export in the 1970s, this mobilization opened Japanese activists’ eyes to the nuclear victimization of Pacific peoples and, in turn, forced a reconsideration of Japan as the only victim of radiation worldwide.Less
This chapter traces the emergence and evolution of a transnational movement opposing the planned dumping of Japanese radioactive waste material in the Pacific Ocean near the Mariana Trench. With its growing stockpile of radioactive waste from nuclear power plants, in the 1970s Japanese officials hatched plans to dump radioactive material in steel canisters in the Pacific. In response, activists on islands in Micronesia mobilized in staunch opposition in the late 1970s. They were joined by Japanese antinuclear groups who brought Pacific activists to Japan to give speeches and lobby officials. The chapter explores how this transnational struggle was able to force a postponement and ultimately the abandonment of the ocean dumping plan. As with movements opposing industrial pollution export in the 1970s, this mobilization opened Japanese activists’ eyes to the nuclear victimization of Pacific peoples and, in turn, forced a reconsideration of Japan as the only victim of radiation worldwide.
Claire Mays
- Published in print:
- 2014
- Published Online:
- September 2014
- ISBN:
- 9780199450459
- eISBN:
- 9780199083084
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199450459.003.0012
- Subject:
- Economics and Finance, Development, Growth, and Environmental
Chapter 12 looks at the lessons that have been learnt over the past three decades in Europe, North America, and Asia on the need for early and meaningful public engagement in radioactive waste ...
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Chapter 12 looks at the lessons that have been learnt over the past three decades in Europe, North America, and Asia on the need for early and meaningful public engagement in radioactive waste management (RWM). India’s Atomic Energy Control Board, though, has stated that technical regulation and control should provide ‘adequate assurance’ to the public and secure their trust and confidence. Will this be sufficient to secure a ‘social license to operate’? This chapter investigates the factors that may positively or negatively influence the Indian public’s confidence in the Indian nuclear establishment—factors that the Government should be aware of to shape a trusted RWM strategy. It traces the various successful approaches in Europe, where some communities now volunteer and compete to host these facilities. This chapter shows that technical soundness is not sufficient to gain the trust of citizens or develop sustainable and socially acceptable RWM solutions; procedural fairness is of equal importance.Less
Chapter 12 looks at the lessons that have been learnt over the past three decades in Europe, North America, and Asia on the need for early and meaningful public engagement in radioactive waste management (RWM). India’s Atomic Energy Control Board, though, has stated that technical regulation and control should provide ‘adequate assurance’ to the public and secure their trust and confidence. Will this be sufficient to secure a ‘social license to operate’? This chapter investigates the factors that may positively or negatively influence the Indian public’s confidence in the Indian nuclear establishment—factors that the Government should be aware of to shape a trusted RWM strategy. It traces the various successful approaches in Europe, where some communities now volunteer and compete to host these facilities. This chapter shows that technical soundness is not sufficient to gain the trust of citizens or develop sustainable and socially acceptable RWM solutions; procedural fairness is of equal importance.
Ian Bellany
- Published in print:
- 2006
- Published Online:
- July 2012
- ISBN:
- 9780719067969
- eISBN:
- 9781781701324
- Item type:
- chapter
- Publisher:
- Manchester University Press
- DOI:
- 10.7228/manchester/9780719067969.003.0002
- Subject:
- Political Science, International Relations and Politics
Nuclear energy has peaceful applications and non-peaceful applications. The centrepiece of all political efforts to curb the spread of nuclear weapons lies in attempting to harmonise the ...
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Nuclear energy has peaceful applications and non-peaceful applications. The centrepiece of all political efforts to curb the spread of nuclear weapons lies in attempting to harmonise the proliferation of nuclear reactors with the non-proliferation of nuclear weapons. What all nuclear reactors have in common is nuclear fuel, which must contain at least some uranium in the form of the isotope uranium-235 (or very much more rarely 233), or plutonium, or both. This is usually described as ‘fissile material’. This chapter is about nuclear technology and the technical interconnections between commercial and military nuclear programmes. It also discusses the spread of nuclear technology and the use to which it has been put by a number of states, both inside and outside the Nuclear Non-proliferation Treaty, to bring them close to or even take them over the nuclear weapons threshold. Moreover, the chapter provides an overview on critical mass and nuclear bombs, the differences between the United States and its natural allies over nuclear proliferation, radioactive waste and nuclear accidents and uranium enrichment.Less
Nuclear energy has peaceful applications and non-peaceful applications. The centrepiece of all political efforts to curb the spread of nuclear weapons lies in attempting to harmonise the proliferation of nuclear reactors with the non-proliferation of nuclear weapons. What all nuclear reactors have in common is nuclear fuel, which must contain at least some uranium in the form of the isotope uranium-235 (or very much more rarely 233), or plutonium, or both. This is usually described as ‘fissile material’. This chapter is about nuclear technology and the technical interconnections between commercial and military nuclear programmes. It also discusses the spread of nuclear technology and the use to which it has been put by a number of states, both inside and outside the Nuclear Non-proliferation Treaty, to bring them close to or even take them over the nuclear weapons threshold. Moreover, the chapter provides an overview on critical mass and nuclear bombs, the differences between the United States and its natural allies over nuclear proliferation, radioactive waste and nuclear accidents and uranium enrichment.
Erin Ryan
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199737987
- eISBN:
- 9780199918652
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199737987.003.0008
- Subject:
- Law, Constitutional and Administrative Law
Chapter Eight summarizes the federalism safeguards debate, considers the role of negotiated governance, and highlights potential contributions from the academic negotiation literature. Most ...
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Chapter Eight summarizes the federalism safeguards debate, considers the role of negotiated governance, and highlights potential contributions from the academic negotiation literature. Most importantly, Chapter Eight introduces the phenomenon of federalism bargaining among all branches of government. Using the negotiation theorist’s definition, it broadly understands bargaining as “an iterative process of joint decision-making,” encompassing conventional political haggling, formalized methods of collaborative policymaking, and even more remote signaling processes by which state and federal actors negotiate consensus. Reverse-engineering the most successful examples would reveal the very considerations built into the Chapter Six balancing test—rendering bilateral bargaining by the political branches the functional ex ante equivalent of the ex post balancing analysis contemplated there. The federalism bargaining taxonomy charts opportunities for intergovernmental negotiation within various constitutional and statutory frameworks. It begins with the most familiar forms of negotiation used in lawmaking, including conventional negotiations over law enforcement, under the federal spending power, and for exceptions from otherwise applicable laws. It then considers more interesting forms of negotiated policymaking, including negotiated federal rulemaking with state and local stakeholders, federal statutes that share policy design with states, and intersystemic signaling negotiations, by which independently operating state and federal actors trade influence over the direction of evolving interjurisdictional policies. Examples include the 2008 Stimulus Bill, banking and financial services reform, criminal law enforcement, immigration, radioactive waste siting, offshore drilling, hydroelectric dam licensing, medical marijuana, climate governance, and the No Child Left Behind, Endangered Species, Clean Water, Clean Air, Real ID, Coastal Zone Management, and Medicaid Acts.Less
Chapter Eight summarizes the federalism safeguards debate, considers the role of negotiated governance, and highlights potential contributions from the academic negotiation literature. Most importantly, Chapter Eight introduces the phenomenon of federalism bargaining among all branches of government. Using the negotiation theorist’s definition, it broadly understands bargaining as “an iterative process of joint decision-making,” encompassing conventional political haggling, formalized methods of collaborative policymaking, and even more remote signaling processes by which state and federal actors negotiate consensus. Reverse-engineering the most successful examples would reveal the very considerations built into the Chapter Six balancing test—rendering bilateral bargaining by the political branches the functional ex ante equivalent of the ex post balancing analysis contemplated there. The federalism bargaining taxonomy charts opportunities for intergovernmental negotiation within various constitutional and statutory frameworks. It begins with the most familiar forms of negotiation used in lawmaking, including conventional negotiations over law enforcement, under the federal spending power, and for exceptions from otherwise applicable laws. It then considers more interesting forms of negotiated policymaking, including negotiated federal rulemaking with state and local stakeholders, federal statutes that share policy design with states, and intersystemic signaling negotiations, by which independently operating state and federal actors trade influence over the direction of evolving interjurisdictional policies. Examples include the 2008 Stimulus Bill, banking and financial services reform, criminal law enforcement, immigration, radioactive waste siting, offshore drilling, hydroelectric dam licensing, medical marijuana, climate governance, and the No Child Left Behind, Endangered Species, Clean Water, Clean Air, Real ID, Coastal Zone Management, and Medicaid Acts.
- Published in print:
- 1999
- Published Online:
- June 2013
- ISBN:
- 9780853239239
- eISBN:
- 9781846313035
- Item type:
- chapter
- Publisher:
- Liverpool University Press
- DOI:
- 10.5949/liverpool/9780853239239.003.0013
- Subject:
- Political Science, Environmental Politics
This book describes environmental problems encountered in the UK and in other developed countries at the close of the twentieth century. Environmental pollution is being brought under control by ...
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This book describes environmental problems encountered in the UK and in other developed countries at the close of the twentieth century. Environmental pollution is being brought under control by environmental laws and environmental improvements. In the water sector, there are European Commission Directives that deal with water quality, marine life, limits on releases of hazardous substances and standards for effluents discharged into rivers and seas. There are also European Union laws that cover disposal of solid wastes, reducing emissions of acid gases and carbon dioxide and controls on the movement of radioactive and other hazardous wastes.Less
This book describes environmental problems encountered in the UK and in other developed countries at the close of the twentieth century. Environmental pollution is being brought under control by environmental laws and environmental improvements. In the water sector, there are European Commission Directives that deal with water quality, marine life, limits on releases of hazardous substances and standards for effluents discharged into rivers and seas. There are also European Union laws that cover disposal of solid wastes, reducing emissions of acid gases and carbon dioxide and controls on the movement of radioactive and other hazardous wastes.
Peter Rez
- Published in print:
- 2017
- Published Online:
- December 2017
- ISBN:
- 9780198802297
- eISBN:
- 9780191840708
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/oso/9780198802297.003.0005
- Subject:
- Physics, Geophysics, Atmospheric and Environmental Physics
The primary advantage of nuclear power is that a lot of energy can be generated from very little material—that too with no ongoing CO2 production. The disadvantage is the problem of dealing with ...
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The primary advantage of nuclear power is that a lot of energy can be generated from very little material—that too with no ongoing CO2 production. The disadvantage is the problem of dealing with radioactive waste—in particular,137Cs. Although somewhat challenging, it still appears to be manageable. Progress in nuclear fusion research has been slow, but the ultimate reward of almost unlimited energy would make it worthwhile to keep going.Less
The primary advantage of nuclear power is that a lot of energy can be generated from very little material—that too with no ongoing CO2 production. The disadvantage is the problem of dealing with radioactive waste—in particular,137Cs. Although somewhat challenging, it still appears to be manageable. Progress in nuclear fusion research has been slow, but the ultimate reward of almost unlimited energy would make it worthwhile to keep going.
Kristin Shrader-Frechette
- Published in print:
- 2011
- Published Online:
- January 2012
- ISBN:
- 9780199794638
- eISBN:
- 9780199919277
- Item type:
- chapter
- Publisher:
- Oxford University Press
- DOI:
- 10.1093/acprof:oso/9780199794638.003.0001
- Subject:
- Philosophy, Moral Philosophy
Chapter 1 begins by stressing the severity of climate change (CC) and showing how, contrary to popular belief, atomic energy is not a viable solution to ...
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Chapter 1 begins by stressing the severity of climate change (CC) and showing how, contrary to popular belief, atomic energy is not a viable solution to CC. Many scientists and most market proponents agree that renewable energy and energy efficiencies are better options. The chapter also shows that government subsidies for oil and nuclear power are the result of flawed science, poor ethics, short-term thinking, and special-interest influence. The chapter has 7 sections, the first of which surveys four major components of the energy crisis. These are oil addiction, non-CC-related deaths from fossil-fuel pollution, nuclear-weapons proliferation, and catastrophic CC. The second section summarizes some of the powerful evidence for global CC. The third section uses historical, ahistorical, Rawlsian, and utilitarian ethical principles to show how developed nations, especially the US, are most responsible for human-caused CC. The fourth section shows why climate-change skeptics, such as “deniers” who doubt CC is real, and “delayers” who say that it should not yet be addressed, have no valid objections. Instead, they all err scientifically and ethically. The fifth section illustrates that all modern scientific methods—and scientific consensus since at least 1995—confirm the reality of global CC. Essentially all expert-scientific analyses published in refereed, scientific-professional journals confirm the reality of global CC. The sixth section of the chapter shows how fossil-fuel special interests have contributed to the continued CC debate largely by paying non-experts to deny or challenge CC. The seventh section of the chapter provides an outline of each chapter in the book, noting that this book makes use of both scientific and ethical analyses to show why nuclear proponents’ arguments err, why CC deniers are wrong, and how scientific-methodological understanding can advance sound energy policy—including conservation, renewable energy, and energy efficiencies.Less
Chapter 1 begins by stressing the severity of climate change (CC) and showing how, contrary to popular belief, atomic energy is not a viable solution to CC. Many scientists and most market proponents agree that renewable energy and energy efficiencies are better options. The chapter also shows that government subsidies for oil and nuclear power are the result of flawed science, poor ethics, short-term thinking, and special-interest influence. The chapter has 7 sections, the first of which surveys four major components of the energy crisis. These are oil addiction, non-CC-related deaths from fossil-fuel pollution, nuclear-weapons proliferation, and catastrophic CC. The second section summarizes some of the powerful evidence for global CC. The third section uses historical, ahistorical, Rawlsian, and utilitarian ethical principles to show how developed nations, especially the US, are most responsible for human-caused CC. The fourth section shows why climate-change skeptics, such as “deniers” who doubt CC is real, and “delayers” who say that it should not yet be addressed, have no valid objections. Instead, they all err scientifically and ethically. The fifth section illustrates that all modern scientific methods—and scientific consensus since at least 1995—confirm the reality of global CC. Essentially all expert-scientific analyses published in refereed, scientific-professional journals confirm the reality of global CC. The sixth section of the chapter shows how fossil-fuel special interests have contributed to the continued CC debate largely by paying non-experts to deny or challenge CC. The seventh section of the chapter provides an outline of each chapter in the book, noting that this book makes use of both scientific and ethical analyses to show why nuclear proponents’ arguments err, why CC deniers are wrong, and how scientific-methodological understanding can advance sound energy policy—including conservation, renewable energy, and energy efficiencies.
