The Hill Op-Ed: Trump Administration's Clean Power Plan Repeal Proposal Is Illegal
This op-ed originally ran in The Hill.
The Trump administration's efforts to sidestep finalized regulations through stays or delays have so far met with judicial rejection in three straight decisions.
As these courts have concluded, such a deregulatory strategy violates settled law that administrative agencies are bound by their own finalized regulations until they undo them through a new full rulemaking process.
Environmental Protection Agency Administrator Scott Pruitt last week published a proposal to repeal the Obama administration's Clean Power Plan that similarly is headed for rocky shoals.
The plan, although stayed pending resolution of legal challenges, is a fully finalized regulation, setting in place a federal-state process to reduce greenhouse gas emissions contributing to climate change from existing power plants.
Pruitt's proposed repeal has been criticized for its skewed cost-benefit analysis reversals and climate progress losses. But this repeal proposal suffers from two related illegalities, perhaps springing from Pruitt's political focus on pleasing favored constituencies regardless of what the law actually allows. An eventual legal loss might still be a political win.
Read the full op-ed in The Hill.
Too often, workplace injuries and deaths result from company policies and practices that encourage and reward unacceptably risky behavior under the false pretense that cutting corners is standard practice and no one will get hurt. As a result, an average of 13 Americans are killed on the job every day, and many more are seriously injured.
In many cases, these tragedies and the grave pain they impose on the victims' families, friends, and communities are preventable with basic safety measures. Nevertheless, employers and authorities commonly treat work-related deaths and injuries as "accidents" rather than investigating them as potential crimes. They simply pass these cases off to regulators at the federal Occupational Safety and Health Administration (OSHA) or a state counterpart, which conducts an investigation and assesses what amounts to an insignificant civil penalty – a fine that can be as small as a few thousand dollars. Then, everyone …
Today, I will testify before two subcommittees of the House Oversight Committee at a hearing that I hope will provide a critical examination of the Trump administration's so-called "Regulatory Reform Task Forces." Created by Trump's Executive Order 13777, these task forces are essentially designed to be "hit squads" embedded at each agency with the goal of carrying out the Trump administration's assault on public safeguards from within. In my testimony, I provide a comprehensive critique of the task forces, as well as Executive Orders 13771 and 13777, which they are charged with implementing. Ultimately, I conclude that the orders should be repealed and the task forces be disbanded.
In my testimony, I highlight four fatal flaws with the task forces and the work they do. These flaws include: (1) the public harms they will create; (2) their lack of a rational policy basis; (3 …
On August 27, as Hurricane Harvey blew through the Houston area, the U.S. Army Corps of Engineers found itself between the proverbial rock and hard place. Since the 1940s, it had operated a flood control project to control the risk of flood damage to downtown Houston and the Houston Ship Channel. It had accomplished this by carefully controlling the release of flood waters from the project's dams. Now, however, the Corps confronted Hurricane Harvey, a megastorm generating massive, unprecedented volumes of flood water.
The Corps faced the choice of either limiting water releases from the project to protect downstream properties at the cost of flooding upstream properties, or increasing project releases to protect upstream properties at the cost of flooding downstream properties. Not surprisingly, the Corps' decision on August 27 and on the following days, to release up to 13,000 cubic feet per second …
Individuals across the United States encounter hundreds of chemical substances every day and often simultaneously – in common household and hygiene products, in our food and drinking water, and in our air. Some of these chemicals present serious risks to our health and the environment and a heightened risk of harm for children, pregnant women, the elderly, and individuals with compromised immune systems. To this day, we are largely unprotected from all manner of chemical exposures, including chemicals widely known to be lethal and for which there is no safe level.
In 2016, Congress passed and President Barack Obama signed into law the Frank R. Lautenberg Chemical Safety for the 21st Century Act to address this problem head on by revising the weak Toxic Substances Control Act (TSCA) and directing EPA to establish a comprehensive framework for evaluating chemicals and regulating those that pose unreasonable health and environmental …
Professor Hari Osofsky of Pennsylvania State University co-authored this article with Center for Progressive Reform Member Scholar and Florida State University College of Law Professor Hannah Wiseman. It originally appeared in The Conversation on October 13, 2017.
On Oct. 10, EPA Administrator Scott Pruitt formally announced a repeal of the Clean Power Plan, regulation intended to curb greenhouse gas emissions from existing coal- and natural gas-fired power plants.
This follows a directive only a week earlier by Energy Secretary Rick Perry for the the Federal Energy Regulatory Commission to start a process to essentially subsidize coal and nuclear power plants.
At first blush, these developments give the impression that the U.S. power sector is about to take a dramatic turn, and these decisions do indeed represent a significant shift in U.S. policy. But major changes on the ground are unlikely to happen overnight, or perhaps …
CPR's Member Scholars and staff have continued to appear in the nation's op-ed pages to expose the ongoing assault on our safeguards by President Trump and Congress. Among recent examples:
Dan Farber's July 5 article in The Hill highlighted the many flaws in legislation introduced by Sens. Rob Portman (R-OH) and Heidi Heitkamp (D-ND) designed to encumber the development of regulatory safeguards. In "Tangling life-saving regulations in red tape," Farber writes, "The bill would impose needlessly complex procedures that will hamper agency e?orts to protect the public interest far more than it will improve agency decision making. And, of course, for many of the bill's supporters, that's exactly the point. Nothing about this proposal is intended to foster safer workplaces, food and consumer, and nothing about it would improve public health or the environment. The purpose is to delay or defeat rules that …
An earlier version of this post appeared on Legal Planet.
Few things were more foreseeable than the Trump administration's repeal of the Clean Power Plan (CPP). The administration was never going to leave in place a regulation that disfavored coal and promoted the use of renewable energy in electricity generation. The only real questions were when and how.
Today, the administration is taking the first step with the release of a proposed rule repealing the CPP. EPA is relying wholly on the argument that it can interpret the statute in question (section 111(d) of the Clean Air Act) to cover only regulations within the fenceline of a power plant, not regulations that require the owner to obtain power from cleaner sources elsewhere.
The action is notable in part for what the agency did not do, some good and some bad. Here are some things that …
What happens in Washington gets a lot of attention. You probably also follow what's going on in your own state. But it's very hard to know what's happening in states across the country.
In an effort to get a better sense of that, I've explored state activity on climate change and energy in a series of posts. This wasn't a fifty-state survey, or even a statistically valid random sample. But it does indicate what's happening in a range of states, some Republican and some Democratic, some on the coasts and others in the heartland.
Overall, I was struck by two main points. First, there's a lot going on in Blue States and states with mixed party control. It's certainly not just California that's taken action, even though it gets a lot of the publicity. But places like Hawaii …
On September 28, I joined senators and Senate staff for a Capitol Hill briefing hosted by Sen. Tammy Duckworth. Our discussion focused on the report I co-authored with my colleagues at the Center for Land, Environment, and Natural Resources, entitled Conservation Limited: Assessing State Laws and Resources for Endangered Species Protection, which investigates states' capacity to protect and recover endangered species by looking at how these laws compare to the federal Endangered Species Act (ESA). It also looks at state and federal funding for implementing the ESA.
As we discussed during the briefing, the report found:
- Few state endangered species laws protect all in-state federally listed endangered species.
- Many state endangered species laws do not require decisions to be based on sound science.
- Few state endangered species laws require consultation with expert state agencies.
- Most state endangered species laws provide less citizen involvement than the federal ESA …
