NEPA: Middle-Aged, But Still Vigorous
This item is cross-posted by permission from Legal Planet.
The National Environmental Policy Act, which became law on January 1, 1970, is the oldest of the major federal environmental laws. It has been a model for environmental assessment laws in numerous states and other nations, but it still comes in for a lot of criticism at home.
Some criticisms are surely justified. As Dan pointed out here, NEPA has yet to fulfill the promise of its lofty goals. NEPA has never quite managed to make environmental impacts central to federal decisions at the conceptual level, the point where key choices are made about what initiatives to pursue and what priorities to assign. Predictions about environmental impacts or the effectiveness of mitigation are hardly ever later reviewed. And in too many cases, environmental analysis is simply used to paper over decisions that have effectively already been made; in those situations NEPA seems to impose costs and delays without any corresponding improvement in decisionmaking.
Nonetheless, NEPA remains an important and useful law. It drastically changes the political landscape by forcing agencies to publicly reveal the environmental costs of their planned actions. And sometimes delay is a good thing — NEPA can slow down …
Interior Secretary Ken Salazar will mix it up with Jon Stewart on the Daily Show tomorrow (Thursday) night.
Interior spokeswoman Kendra Barkoff told CNN that Salazar is looking forward to talking about "his work implementing President Obama's vision for building a clean energy economy and his efforts to protect America's treasured landscapes. Time permitting, of course, the Secretary will be glad to offer Stewart some fashion tips, including how best to sport a cowboy hat and bolo tie."
Salazar will be the first Interior Secretary to appear on the show. We'll check it out.
Cass Sunstein, President Obama's controversial nominee for Administrator of the Office of Information and Regulatory Affairs (OIRA), will go before the Senate's Homeland Security and Governmental Affairs Committee for his confirmation hearing on Tuesday (May 12). The “Regulatory Czar,” as this position is known, wields enormous influence over the substance of federal regulations affecting matters as diverse as public health and safety, the environment, and education.
Professor Sunstein's nomination has attracted attention from the public interest community, largely focused on the many controversial stances on regulatory policy that he has taken in his legal scholarship. Here are some of the things I will be listening for when I go to the hearing on Tuesday:
- Does Professor Sunstein recognize that the federal regulatory agencies are in a severely weakened state? The federal regulatory agencies that the American people depend upon to protect them from pollution, unsafe products, workplace …
CPR Member Scholars William W. Buzbee and Victor Flatt have an op-ed in this morning’s Atlanta Journal-Constitution offering a critique of the “discussion draft” of the Waxman-Markey climate-change bill. Several CPR Member Scholars have blogged extensively about the bill here on CPRBlog, and with this op-ed, and a similar piece published the week before last in the Houston Chronicle, Professors Buzbee and Flatt take that discussion to the opinion pages of two important regional newspapers.
In the Atlanta J-C piece, they write:
The Waxman-Markey bill is smart and comprehensive, covering energy, fuels, cars and more. Despite some shortcomings, it’s nevertheless a good place to start the congressional discussion about how to fix the most serious environmental problem the planet has ever faced. Polluting industries have mounted a scare campaign to persuade us that it’s too severe, will cost jobs, choke the economy, and more …
At long last, the Consumer Product Safety Commission (CPSC) is getting the injection of new blood that it has needed for years. President Obama announced today that he will nominate a new Chairwoman and a new Commissioner for the agency.
This is great news. CPSC has been operating with just two commissioners for several years. As originally designed, CPSC is supposed to have five commissioners and needs a quorum of three to undertake any meaningful regulatory action, such as create new safety standards or issue mandatory recalls. When President Bush was unable to nominate a suitable third commissioner, Congress let CPSC operate temporarily with two commissioners, but only on a limited budget.
That leads to the second reason President Obama’s announcement is such great news. His budget request of $107 million for the agency – a substantial increase over last year’s $80 million – will likely be …
On Thursday, Rep. Raul Grijalva introduced HR 2192, a bill on adapting to the impacts of climate change. The law would establish a "Natural Resources Climate Change Adaptation Panel" that would create a plan for several federal agencies to anticipate and seek to mitigate the effects of a changed planet.
The bill is very similar to the natural resource adaptation provisions (Title IV, Subtitle E, Subpart C) in the Waxman-Markey draft climate change legislation. Those provisions were a good start, though certainly not perfect (Holly Doremus and I previously analyzed the good and the bad of those provisions here).
E&E News reported (subscription required) that Grijalva's bill, along with a separate one in the works in the House Science Committee, are "expected to be voted on before Memorial Day and eventually to be folded into Waxman-Markey." If it came to it, should Waxman-Markey stumble, this bill …
Last week I discussed how the institution of judicial review has been used to amplify the deregulatory nature of cost-benefit analysis. This week, I'll talk about some possible remedies.
An unusual synergy exists between the institutions of cost-benefit analysis and judicial review. Under most circumstances, the institution of judicial review is arguably neutral with regard to regulatory issues. When judicial review is applied to a case involving a regulation that has been weakened by cost-benefit analysis, however, the once neutral institution is transformed into one that that can have no other impact than to aid and abet the deregulatory agenda of cost-benefit analysis. This is because when an agency is forced by cost-benefit analysis to promulgate a rule that is too weak to be supported by the underlying statute, any public interest groups concerned with public health, safety, and the environment is left with a difficult decision …
For the last few years now, CPR’s Member Scholars have made the case that cost-benefit analysis is, by itself, fundamentally deregulatory in nature. Unfortunately, other institutions in our federal government tend to exacerbate the deregulatory nature of cost-benefit analysis. Whether by design or dumb luck, cost-benefit analysis allows regulatory opponents to use those institutions—most notably judicial review—to further their deregulatory agendas.
The Clean Air Mercury Rule (CAMR) case is a good example. In February, the Supreme Court decided not to accept an appeal of a case on CAMR, which was the Bush Administration’s feeble regulatory plan for addressing air mercury pollution from power plants. The story of CAMR demonstrates how judicial review has been used to amplify the deregulatory impact of cost-benefit analysis, and it's emblematic of the deregulatory synergy between cost-benefit analysis and judicial review. This synergy typically plays itself out through …
This morning, the Center for Progressive Reform's Rena Steinzor testifies before the House Science and Technology Committee’s Subcommittee on Investigations and Oversight. In her remarks, she calls on the White House to reshape the role of the director of OMB's Office of Information and Regulatory Affairs -- the so-called regulatory czar. All too frequently OIRA has been the place where protective regulations go to get weakened or killed, and Steinzor argues forcefully that there's a better role for the OIRA director: a defender of federal regulatory agencies and their missions, rather than an impediment to regulation. She says:
The Obama Administration and Congress should define a new mission for the regulatory czar. The American people need more, not less regulation on every front, from mortgage lending to workplace hazards. The regulatory czar’s mission should be to rescue struggling regulatory agencies by helping them …
This morning, the Center for Progressive Reform's Rena Steinzor testifies before the House Science and Technology Committee’s Subcommittee on Investigations and Oversight. In her remarks, she calls on the White House to reshape the role of the director of OMB's Office of Information and Regulatory Affairs -- the so-called regulatory czar. All too frequently OIRA has been the place where protective regulations go to get weakened or killed, and Steinzor argues forcefully that there's a better role for the OIRA director: a defender of federal regulatory agencies and their missions, rather than an impediment to regulation. She says:
The Obama Administration and Congress should define a new mission for the regulatory czar. The American people need more, not less regulation on every front, from mortgage lending to workplace hazards. The regulatory czar’s mission should be to rescue struggling regulatory agencies by helping them …
