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Jan. 19, 2021 by Daniel Farber

Rethinking Presidential Administration

This post was originally published on Legal Planet. Reprinted with permission.

Conservatives love to complain about faceless bureaucrats, but blaming bureaucrats for regulations is hopelessly out of date. When Elena Kagan was a professor, she wrote an article called “Presidential Administration.” The article applauded her former boss Bill Clinton for seizing greater control of the regulatory process, away from agencies. That trend has accelerated to the point where the White House controls even the fine details of regulation.

Two things can get sidelined in presidential administration. One is agency expertise. No one in the White House has as much knowledge as agency experts about air pollution, or climate change, or endangered species.

The other thing that gets sidelined is active implementation of the law actually passed by Congress. The White House staff who review regulations care only about costs and benefits. The president and the higher-level staff care only about the president’s policy and political agendas. From their perspective, the law actually passed by Congress only matters to the extent it might let courts get in the way of those other agendas. Only the agency itself has an affirmative institutional commitment to the statute it administers.

Kagan admitted in …

Jan. 14, 2021 by Michele Janin, Robert Verchick
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Over the last six months, we had the honor of leading the search for a visionary new leader to guide our organization. Our search is over, and we're thrilled to announce that Minor Sinclair will be taking CPR's helm next month.

Sinclair is a dynamic leader with a commitment to the progressive values CPR has fought for over the last two decades: justice, equity, public health, safety, and environmental sustainability. He is uniquely qualified to guide our organization through this moment of social and political change.

A tireless advocate for justice, Sinclair has dedicated his career to supporting the rights of low-income and vulnerable communities. He also has management and fundraising experience, an ability to bring people together around progressive change, and an ambitious vision for CPR as it enters its third decade.

After earning a bachelor's degree in international development from Davidson College, Sinclair began his …

Jan. 13, 2021 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

Donald Trump's hostility domestic environmental regulation is notorious. He also stalled or backpedaled on the international front. Here are seven steps that President Biden could take to remedy the situation.

  1. Rejoin the Paris Agreement. The U.S. needs to immediately rejoin the Paris Agreement. It also needs to update its climate target because we can do a lot more than we thought possible even four years ago to reduce emissions. Technology has improved, renewable prices have fallen, and the car industry is prepared to embrace electric vehicles.

  2. Rejoin the WHO. Leaving the World Health Organization (WHO) in the middle of a pandemic was crazy for many reasons — among them, its effect on the environment. As I wrote in a post at the time, WHO does important work in many countries on controlling dangerous levels of air …

Jan. 12, 2021 by Victor Flatt
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One of the most vexing environmental law issues of the last three decades is the scope of the term "waters of the United States" (WOTUS) in the Clean Water Act — and what marshes, lakes, and streams fall under its purview. A connected legal question stretching back even further is how much deference to give agencies in policymaking and legal interpretations.

These issues are present in both the Trump administration's final "Waters of the United States" rule, which narrowly defines waters subject to the act, and the Biden administration's likely attempt to expand that definition. The Trump administration's narrow approach dramatically reduces the number of waterways under federal protection. A broader definition would restore and possibly expand protections to better safeguard public and environmental health.

A new study on the economic analyses in the Trump rule (which I co-authored) concludes that its supporting economic analyses rely on questionable …

Jan. 11, 2021 by Shalanda H. Baker, Alice Kaswan
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The Black Lives Matter movement highlights long-standing inequities and amplifies the drumbeat for climate justice and an equitable transition to a clean economy. With the incoming Biden-Harris administration and a growing list of environmental justice advocates at the helm, it's time to move from rhetoric to reality. We offer concrete proposals to turn climate justice goals into climate justice policies.

The call for climate justice has multiple dimensions, from ensuring an equitable transition to clean energy for vulnerable communities and workers disrupted by the move away from fossil fuels, to extending the benefits of our economy-wide shift to those who have historically been left behind. Even more than past environmental challenges, decarbonizing will not be a narrow, technical undertaking. We need a holistic, justice-centered perspective to shape our vision for a green economy and meet the pervasive environmental and …

Jan. 8, 2021 by Amy Sinden, Richard Parker
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This post was originally published by the Yale Journal on Regulation's Notice & Comment blog. Reprinted with permission.

T’was the season of gift-giving and on December 9, outgoing EPA Administrator Andrew Wheeler delivered a parting gift for his successor in the form of a new regulation: Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process.

The new Rule is offered as a simple housekeeping measure designed “to ensure consistent, high-quality analyses [and to] codif[y] best practices for benefit-cost analysis in rulemaking.” Some observers find it relatively harmless; but others are not so sanguine. We view it as a sort of Trojan Horse—seemingly innocuous on its face, but harboring content that will hamper, and may undermine, EPA’s efforts to confront the climate crisis and protect the safety of the air we breathe. Here are a few …

Jan. 7, 2021 by Darya Minovi, James Goodwin
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In a last-ditch effort to further weaken the U.S. Environmental Protection Agency's (EPA) ability to protect public health, this week, the Trump administration published its final “censored science” rule. As stated in the Center for Progressive Reform’s comments on the draft rulemaking, this proposal unjustifiably limits the research that can be used in regulatory decision-making, giving more weight to studies where the underlying data is publicly available. These restrictions will apply to dose-response studies — which measure how much an increase in pollution exposure increases public health harms — and which often rely on medical and other private data.

Furthermore, in the final rule, EPA continues to make the baseless claim that the Federal Housekeeping Statute, an obscure law dating back to 1789, provides the agency the authority to issue this rule. It’s doubtful that this law even applies to EPA. Even if it does, it …

Jan. 4, 2021 by James Goodwin
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Thanks to the recent presidential election results, I’m able to do something I haven’t done in a long time: look at a new year with something resembling hope and optimism. As noted in my December 21 posts, the Trump administration wreaked havoc on our system of regulatory safeguards in 2020, as it did in previous years. The incoming Biden-Harris administration brings a strong mandate to undo the damage — and to go further by building a more just and people-centered government that can meet the pressing challenges America faces.

CPR recently launched Policy for a Just America with this opportunity in mind. This initiative aims to rebuild and reimagine government and offers detailed recommendations aimed at promoting a more robust and responsive regulatory system.

Will we seize the moment? Here are the first five of 10 storylines I’ll be following this year. Each could significantly …

Jan. 4, 2021 by James Goodwin
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In my previous post, I began my review of 10 key regulatory policy stories to watch out for as 2021 gets underway. In this piece, I wrap up that list and offer some closing thoughts.

  1. How will Congress oversee the Biden-Harris administration's regulatory actions? When Republicans regained control of the U.S. House in 2010, they wasted little time challenging the Obama administration's regulatory policies, regularly holding bombastic hearings for show and rolling out new bills meant to throttle the regulatory system. If Republicans win either or both Georgia runoffs for U.S. Senate tomorrow, they will retain control of the chamber and will likely borrow a page from this playbook. Whether the Biden-Harris administration vigorously defends its regulatory agenda or cowers like the Obama administration will determine how much progress it makes on its policy priorities. On the flipside, House Democrats have a crucial …

Dec. 21, 2020 by James Goodwin
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This was the year in which many of our worst fears about the Trump administration came to pass. Racial unrest reached a boiling point. The GOP’s attacks on our democracy leading up to and after the election will take decades to fix. And of course, tens of thousands of lives have been needlessly lost to an unprecedented pandemic.

It was an ugly year. Not surprisingly, most of 2020’s top regulatory policy stories were ugly too. In general, policy developments aligned against the goals of CPR’s new Policy for a Just America initiative: a sustainable future, a responsive government, and strong, effective protections for all people and the environment. The incoming Biden-Harris administration can put us back on the right track, but they have a lot of work ahead of them.

Here are the first five of this year’s 10 most significant developments affecting …

CPR HOMEPAGE
More on CPR's Work & Scholars.
Jan. 19, 2021

Rethinking Presidential Administration

Jan. 14, 2021

CPR Welcomes New Executive Director Minor Sinclair

Jan. 13, 2021

Next Steps to Save the Global Environment

Jan. 12, 2021

Study Finds Significant Flaws with Trump Waters of the United States Rule, Provides Legal Support for Biden Replacement

Jan. 11, 2021

The Hill Op-ed -- From Rhetoric to Reality: Achieving Climate Justice

Jan. 8, 2021

Andrew Wheeler's Trojan Horse for Clean Air Act Regulation

Jan. 7, 2021

Incoming Biden Administration Should Repeal Harmful EPA Censored Science Rule