Benjamin Raker, Class of 2017, has won both the Environmental Law Institute’s 2016–2017 Henry L. Diamond Constitutional Environmental Law Writing Competition and the Tennessee Bar Association’s Jon E. Hastings Memorial Award, sponsored by TBA’s Environmental Law Section, which recognizes scholarship in environmental law by students of Tennessee law schools. Both awards include cash prizes.
Raker’s Diamond Prize-winning paper, Decentralization and Deference: How Different Conceptions of Federalism Matter for Deference and Why that Matters for Renewable Energy, will be published in the Environmental Law Reporter, a scholarly journal published by the Environmental Law Institute that covers environmental and natural resource issues. Raker’s paper addresses several recent cases where both federal and state courts deferred to state regulations regarding renewable energy when those regulations differed with federal requirements. “When Congress says the Federal Energy Regulatory Commission should interpret the law, and a state agency contradicts the federal agency, most people would say you side with the federal agency,” he said.
In the paper, Raker set out to determine whether the courts were correct in deferring to state regulations. He concludes that, at least in this instance, FERC should be the final authority and that courts should not defer to state regulations that conflict with FERC. “Ben’s paper applies a sophisticated federalism analysis to the area of renewable energy, with implications for current cases,” said Jay Austin, a senior ELI attorney and editor-in-chief of the Environmental Law Reporter.
Raker wrote the paper for a Renewable Power seminar taught by Professor Jim Rossi. In addition to a $2,000 award, he received a one-year membership to ELI for winning the national Diamond competition, which is supported by Beveridge & Diamond. The annual competition invites law students to submit papers exploring issues at the intersection of constitutional and environmental law.
Raker wrote his Hastings Award-winning paper, “The Minimum of the Maximum: Navigating SB 1830’s Fluid Standard for Tennessee Stormwater Permits,” specifically for the TBA’s Hastings environmental law writing competition. His paper addresses SB 1830, a bill passed by Tennessee’s state legislature to limit the Tennessee Department of Environment and Conservation’s ability to impose post-construction stormwater requirements on construction projects “beyond the minimum requirements of federal law.” Raker argues that this standard is vague. “The ‘minimum requirements of federal law’ are far from clear,” he said, “and, because the guidance is unclear, SB 1830 will inevitably result in litigation.”
Raker analyzes cases from California, Washington state and Arizona, and concludes that the “minimum requirements” standard Tennessee’s bill establishes is too “confusing and malleable” to be workable. “Prohibiting regulations beyond the ‘minimum requirements of federal law’ is a tough mandate when the federal law does not have clear minimum standards,” he said.
The Jon E. Hastings Memorial Award honors the late Jon Hastings, a founding member of the Environmental Law Section of the Tennessee Bar Association and an attorney with Boult Cummings Connors & Berry who focused on environmental, telecommunications, and public utility law.
Raker will serve as a law clerk for Judge James K. Bredar of the U.S. District Court for the District of Maryland in Baltimore during 2017-18.