Jay Austin

Jay Austin
Senior Attorney; Editor-in-Chief, Environmental Law Reporter®

Jay Austin has been at ELI since 1992. He is editor-in-chief of ELI’s flagship journal, the Environmental Law Reporter, and directs the Institute’s Program on the Constitution, Courts, and Legislation, which focuses on the intersection of U.S. constitutional and environmental law and trends in the federal courts. In the latter role, he produces scholarly research and commentary on environmental litigation; key areas of constitutional law, including the Commerce Clause, Fifth Amendment takings, and Article III standing; and on the major federal environmental statutes, such as the Clean Water Act, National Environmental Policy Act, and Endangered Species Act.

Austin also assists with directing ELI's Ocean Program, and has extensive experience with the Institute's international programs. Based in Portland, Oregon, he maintains specialties in water pollution law, coastal and ocean law, constitutional law, administrative law, environmental impact assessment, and procedures for public participation in environmental decisionmaking.

Media Guide
Expertise
  • Coastal and Ocean Law: coastal zone management, National Ocean Policy, Oil Pollution Act and Gulf of Mexico restoration
  • Environmental Impact Assessment: environmental impact assessment (EIA)—National Environmental Policy Act and issues related to EIA at the federal and state levels
  • Judiciary: environmental law and the judiciary—U.S. Supreme Court and other federal court cases and recent decisions and trends in judicial decisionmaking
  • Law: constitutional environmental law—constitutional law topics that affect environmental law, including the Commerce Clause, “takings” and property rights, “standing” to bring environmental lawsuits, and Tenth and Eleventh Amendments
  • Water: water law—Clean Water Act, wetlands protection, and western water issues
Education
  • J.D., University of Virginia School of Law, 1990
  • B.A., Political Philosophy, James Madison College at Michigan State University, 1985
Selected Publications

Jay Austin, Jarryd Page, Susannah Dibble, and James M. McElfish, Jr., The Supreme Court, Environmental Regulation, and the Regulatory Environment (Envtl. L. Inst., May 2024).

Jay Austin, The Biden-Harris Administration Will Have a Chance to Take Decisive Action on Offshore Drilling, The Skimmer/MEAM (Dec. 2020-Jan. 2021).

Jay Austin, Tobie Bernstein, James M. McElfish, Jr., Cynthia Harris, and Scott Badenoch, Regulatory Reform in the Trump Era, 2nd ed. (Envtl. L. Inst., May 2018).

Jay Austin, Can He Do That? (Reprise): Trump’s Draft Offshore Oil and Gas Leasing Plan, American Constitution Society ACSblog (Feb. 21, 2018)

Jay Austin, Can He Do That? Trump's Executive Order on the Outer Continental Shelf, JURIST (May 24, 2017).

Book Review of Robin Kundis Craig, Comparative Ocean Governance: Place-Based Protections in an Era of Climate Change, Journal of Human Rights and the Environment, Vol. 7 No. 1 (March 2016).

Bruce Myers and Jay Austin, Playing Whack-a-Mole with the Endangered Species Act, ACSblog (Sept. 2015).

Scott Schang, Leslie Carothers, and Jay Austin, "Ending the Tyranny of the Status Quo: Building 21st Century Environmental Law," 32 Pace Envtl. L. Rev. 524 (2015).

Kathryn Mengerink and Jay Austin, Evaluating Ocean Protection, ELI Policy Brief #9 (Envtl. L. Inst. 2015).

David Roche, Jay Austin, Teresa Chan, and Jordan Diamond, Building Bridges: Connecting the Overlapping Goals, Resources, and Institutions for Gulf of Mexico Restoration and Conservation (Envtl. L. Inst. 2014).

Brian Korpics, Jay Austin, and Bruce Myers, “Shifting the Debate: In Defense of the Equal Access to Justice Act,” Environmental Law Reporter (Nov. 2013).

Bruce Myers and Jay Austin, “The Commerce Clause: Foundation for U.S. Environmental Law,” in James May (ed.), Principles of Constitutional Environmental Law (American Bar Association/ELI Press, 2011).

Kathryn Mengerink, Adam Schempp, and Jay Austin, Ocean and Coastal Ecosystem-Based Management: Implementation Handbook (Envtl. L. Inst. 2009).

Adam Schempp, Kathryn Mengerink, and Jay Austin, Expanding the Use of Ecosystem-Based Management in the Coastal Zone Management Act (Envtl. L. Inst. 2009).

Jay Austin and Bruce Myers, Anchoring the Clean Water Act: Congress’s Constitutional Sources of Power to Protect the Nation’s Waters, American Constitution Society Issue Brief (Sept. 2007).

Brief of Environmental Law Institute as Amicus Curiae (co-author), Rapanos v. United States and Carabell v. U.S. Army Corps of Engineers, Nos. 04-1043, -1384 (U.S. filed Jan. 2006).

Limiting State Experimentation Under the “Dormant” Commerce Clause and The Eleventh Amendment, in Redefining Federalism: Listening to the States in Shaping “Our Federalism” (Envtl. L. Inst. 2004).

Jay E. Austin, John M. Carter II, Bradley D. Klein & Scott E. Schang, Judging NEPA: A “Hard Look” at Judicial Decisionmaking under the National Environmental Policy Act, (Envtl. L. Inst. 2004).

Jay E. Austin & Scott Schang, The Rise (and Fall?) of Fundamentalist Federalism, The Environmental Forum, Sept./Oct. 2004.