Agency U-Turns
Cross-posted from LegalPlanet.
The Trump administration is doing its best to wipe out Obama's regulatory legacy. How will the courts respond to such a radical policy change?
The philosophical clash between these last two presidents is especially stark, but this is far from being the first time that agencies have taken U-turns. This is the fifth time in the past 40 years that control of the White House has switched parties, with accompanying changes in regulatory approaches. Yet the underlying statutory framework in environment and energy law has not really changed that much, especially in the past 20 years. Thus, courts have repeatedly had to decide how much credence to give to an administrative position that reverses earlier policy.
This may seem a somewhat esoteric legal issue, but it is going to be crucial to how much Trump succeeds or fails in gutting environmental regulation. Here's what you need to know.
Background on Judicial Deference. Before discussing how courts view agency policy reversals, a few words on the subject of judicial deference may be helpful. In reviewing an agency rule, courts don't make independent judgments about the justifications for the rule. They will defer to an agency's factual findings unless …
Originally published on The Regulatory Review. Reprinted with permission.
Since the Reagan administration, it has become commonplace for new presidential administrations, in one of their first official acts after inauguration, to freeze at least some pending regulatory actions of the prior administration. These freezes have been of varying breadth and have taken varying forms.
The Trump administration’s regulatory freeze was notable for its sweeping scope and blunderbuss execution. In the early months of President Donald J. Trump’s presidency, agencies delayed many dozens of final rules issued in the Obama administration, often with little explanation other than that a new President had been elected and he wanted the agencies to revisit existing regulations.
Before the Trump administration, there was surprisingly little law on agencies’ power to delay the effectiveness of final rules. A small cohort of judicial decisions came out of the Reagan years, and a …
It is widely recognized that President Trump has pushed an aggressive anti-regulatory agenda on the environmental front, but this agenda often hides a second, anti-free-market battle waged in the energy context.
For decades, Congress and the Federal Energy Regulatory Commission (FERC) have worked to move the country toward competitive markets in the sale of wholesale energy – energy that generators sell to utilities, or which utilities sell to each other, and then to retail customers. Congress and FERC believed that introducing more competition into wholesale markets would reduce the cost of electricity for retail consumers because increased generation and access to generation would open up a previously limited supply. In staking out this approach, policymakers and administrators also recognized that competitive markets could encourage the construction of cleaner domestic energy resources.
In large part, this move has been successful. Deregulation of retail electricity markets has in some cases …
This op-ed originally ran in the Baltimore Sun.
On June 5, a 19-year-old construction worker named Kyle Hancock was smothered to death when a deep trench where he was working collapsed. R.F. Warder Inc., the construction company that hired Hancock to help fix a leaking sewage pipe, and the bosses it employed are responsible for his death, plain and simple. Their failure to shore the trench to prevent a collapse was grossly negligent, readily foreseeable, eminently preventable and, therefore, criminal.
The scene of the incident was gruesome. To recover Hancock's body, emergency responders from the Baltimore Fire Department first shored the trench to protect themselves and then worked painstakingly until 1:30 a.m., digging with hand shovels 20 feet down. Before they began the rescue effort, they had to order two other workers out of the hole. We can assume from this fact that Hancock …
This op-ed originally ran in the Bay Journal. Reprinted with permission.
Science is hard, environmental policy is complicated and regulatory science can seem endlessly confounding.
It does not have to be. Earlier this year, the Chesapeake Bay partners stepped into a time-worn trap, heeding calls from overly cautious states to wait for more refined scientific modeling of climate change impacts before taking action to eliminate pollution in the Chesapeake Bay and its tributaries. Having punted action until 2021 at the earliest, the Bay Partnership needs policies to prevent further delay. An innovative policy tool called "stopping rules" could be the answer.
Chesapeake Bay Program scientists have determined that Bay states need to eliminate an additional 9 million pounds of nitrogen pollution and 500,000 pounds of phosphorus to offset the impacts of climate change and ensure that dissolved oxygen standards can be met in the Bay by …
Tuesday afternoon, three CPR Member Scholars – William Buzbee, Lisa Heinzerling, and Rena Steinzor – will be among the experts featured at a major symposium on the threats facing our system of regulatory safeguards. The symposium, The War on Regulation: Good for Corporations, Bad for the Public, was organized by the Coalition of Sensible Safeguards (CSS), which CPR co-leads as an executive committee member, and will include a keynote address from Sen. Elizabeth Warren (D-MA) and closing remarks from Maryland Attorney General Brian Frosh.
The goal of the symposium is to shine a spotlight on the concerted attacks being launched against our regulatory system during the Trump era, both from the Trump administration and conservatives in Congress. In addition to Senator Warren’s and Attorney General Frosh’s remarks, the War on Regulation symposium will include two panel-led discussions. The first will feature Professor Heinzerling and will examine the …
This post is part of a series about climate change and the increasing risk of floods releasing toxic chemicals from industrial facilities.
As one of America’s first colonies, Virginia has a long history of industrialization and its consequent pollution along its waterways. It also has a long history of floods. This combination provides a potential for toxic flooding, putting Virginia's population and livelihoods at risk.
The James River, named “America’s founding river” and spanning most of the state, is prone to floods, both flowing down the river and coming in from coast. Many of Virginia’s industrial areas lie on the banks of the river, contributing to significant toxic discharges and placing the river ninth nationally for chemical releases harmful to fetuses and newborns. In just one example from the late 20th century, Allied Chemical Company’s illegal dumping of kepone (a carcinogenic insecticide …
Cross-posted from LegalPlanet.
The federal government is responsible for responding to major floods and runs the federal flood insurance program. It also has millions of dollars of its own infrastructure at risk from floods. Yet the government is failing to deal effectively with flood risks before the fact.
Let’s begin with the levees that are the main defense against flooding. There are over 100,000 miles of levees across the United States, including about a fifth of all U.S. counties, many of which owned or operated by states, localities, or private entities. Safety regulation is spotty.
By way of background, there are actually two kinds Earthen levees are constructed from compacted soil that is typically covered with grass, gravel, stone, asphalt, or concrete, to help prevent erosion. Floodwalls, which are generally found in urban areas, are made of concrete. Levees require active maintenance such as …
While most of the press EPA Administrator Scott Pruitt is getting these days has to do with his various over-spending scandals, his more lasting impact is likely to be his scorched-earth approach to environmental protections. In an op-ed in The Hill earlier this month, CPR’s Sid Shapiro highlighted one way Pruitt hopes to make an across-the-board, anti-environment impact: By limiting the scope of scientific studies that his agency may consider when developing safeguards.
Under the guise of greater transparency, Pruitt is proposing to restrict the use of studies for which the underlying data is not completely available to the public. That may sound reasonable on its face, but the reality is that plenty of important research and knowledge derives from studies for which some measure of confidentiality is a must. Medical studies typically protect the confidential information of participating patients, for example.
As Shapiro notes …
Back in 2007, the Intergovernmental Panel on Climate Change (IPCC) noted the likelihood of an increase in what is now often referred to as "climate change" or "climate justice" litigation. The reason for the increase, according to the IPCC, is that "countries and citizens will become dissatisfied with the pace of international and national decision-making on climate change." Just over a decade later, that observation now looks quite prescient, with several cities and counties taking the oil industry to court over climate-related damages.
In addition to suits against national governments based on international and national environmental laws in various countries, the IPCC pointed to the first climate change tort case brought in the United States: American Electric Power Co. v. Connecticut (AEP). In that case, states sued major oil and gas companies for climate change harms caused by their greenhouse gas emissions based on the common …
