Catching Up on CPR's Recent Op-Edery
Unless you regularly read newspapers from markets ranging from Baltimore to Houston to the San Francisco Bay area, chances are that you missed some of the op-eds that CPR’s scholars and staff published in the nation’s newspapers in February. We post links on our website, of course; you can find them on the various issue pages, as well as on our op-eds page. But we thought CPRBlog readers might appreciate a quick rundown from last month, so here goes:
- In a February 2 piece in the Houston Chronicle, CPR’s Tom McGarity warned about the dangers of the Regulatory Accountability Act, which had recently zipped through the House of Representatives. He wrote, “The proponents of the bill insist that it will improve federal regulation, but the real purpose and effect of the bill is to stall the overall process making it harder for federal agencies to adopt rules that prevent companies from harming their workers, their customers and their neighbors.”
- Two days later, McGarity was in the Waco Tribune, writing about the House GOP’s pending use of the Congressional Review Act (CRA) to undo a regulation adopted in the wake of the West, Texas, chemical explosion that …
The first rule of reading anti-regulatory bills, executive orders, and other policy prescriptions is: Sweat the hyper-technical, anodyne-sounding stuff. And President Donald Trump's February 24 executive order on "Enforcing the Regulatory Reform Agenda" demonstrates why this rule exists.
One of the order's provisions – which no doubt caused glaze to form over many an eye – read: "Each Regulatory Reform Task Force shall attempt to identify regulations that . . . are inconsistent with the requirements of section 515 of the Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note)." I know my eyes glazed over the first time I read it. But it's worth a careful look at what that obscure legal citation refers to and what its inclusion could mean for existing regulatory safeguards.
First things first, though. Trump's February 24 order – in a depressingly hilarious twist of irony – sets out to …
Originally published on Environmental Law Prof Blog by CPR Member Scholar Lesley McAllister.
Did you know that as of July 2016, we have a new federal law mandating that genetically engineered food be labeled? It is true – see 7 U.S.C. § 1639(b)(2)(D) (Jul. 29, 2016). So when, you might ask, will you be able to know which of all those foods we buy at the grocery store are produced with GMOs?
It could be a very long wait. For one thing, the law – the National Bioengineered Food Disclosure Standard – didn't actually mandate a label that directly states that the food is a GE food. Rather, Congress left open the possibility that USDA allow scannable QR codes instead of on-package labeling as the means of disclosure. Congress charged the USDA with completing a study within one year (i.e. by July 2017) regarding …
In his first speech upon assuming his duties as EPA Administrator, Scott Pruitt informed the agency's employees that "regulators exist to give certainty to those that they regulate." No, Mr. Pruitt, they do not. Regulators and the regulations they are responsible for adopting and enforcing exist to protect the public interest. In particular, they exist to correct market failures, such as the refusal of polluting industries to internalize the costs of the harm they do to public health and the environment.
Of course, well-constructed regulations will also create certainty, and regulated entities typically prefer such certainty so they are able to understand their responsibilities and plan for compliance. Sometimes, they are even willing to support tougher regulations (especially if there is only one set to worry about) instead of having to accommodate multiple sets of rules.
Regulations can even benefit the regulated community in many ways …
Imagine you come across a colleague sitting at his desk amid piles of yellowed papers. When you ask what he is working on, he says it's his annual family budget. "What's with all the old papers?" you might ask. "Oh," he replies, "I always work my new budget off my receipts and bills from 1983, the year we married. Some of them are getting pretty hard to read." "Don't you keep updated records?" you might ask. "And haven't your family finances changed significantly over the last 34 years? I know one of your kids is going to college this fall. You've bought a new house, and you and your wife have switched jobs since then." "Well, yes," your colleague says, "but 1983 is the baseline for us."
No reasonable person would plan a budget this way. Yet it is exactly the approach …
This op-ed originally ran in the Baltimore Sun.
Last summer, when floodwaters nearly wiped out Old Ellicott City, many people looked at the damage as bad luck caused by a 500-year storm. The truth is that such storms are no longer rare events. The Northeast United States has experienced a staggering 70 percent increase in intense rainstorms thanks to climate change. Unfortunately, efforts in the Chesapeake Bay region to adapt policies to address these threats are lagging far behind, and without broad and meaningful action, more property damage, injuries and loss of life are likely. Heavier and more frequent rains, among other impacts of climate change, also pose a threat to the massive effort to clean up the bay.
On Wednesday, Maryland's secretaries of the departments of agriculture, natural resources and environment will have a chance to turn the tide. They will be meeting with federal …
The ascension of Scott Pruitt as Administrator of the Environmental Protection Agency (EPA) ushers in a new chapter in the long story of cooperative federalism in the administration of U.S. environmental laws. Pruitt's words and actions as the Attorney General of Oklahoma suggest that, as much as any other issue, idea, or policy, federalism will be a recurring theme.
But are the cries about federalism really about finding the proper balance of state and federal roles in implementation of our environmental laws? Or is federalism merely a tool in the conservative toolbox used to achieve their real aim: dismantling environmental regulation?
To be sure, a focus on federalism has long been one of the core values of conservatives as they argue for devolution of power to state and local governments. Indeed, the U.S. Supreme Court has recognized federalism as one of the oldest and most …
At a national meeting of state utility regulators, the head of the group recently said that the Clean Power Plan was basically dead, but this might not matter because "arguably, you're seeing market-based decarbonization" due to technological changes. Case in point: Texas.
Market trends are pushing Republican stronghold Texas toward a cleaner grid. ERCOT, which operates nearly all of the state's grid, recently projected that in the next fifteen years, Texas will add almost 20 gigawatts of solar, equivalent to 15-20 new nuclear reactors. In fact, under virtually every scenario ERCOT considered, the only new capacity is solar, with no new fossil fuel plants expected. ERCOT also expects to retire about a third that amount in coal generation along with some older, inefficient natural gas plants. Regulatory changes could nudge these numbers upward or downward. Both the use of renewables and the fossil fuel retirements …
The so-called Regulations from the Executive In Need of Scrutiny Act (REINS Act) has already passed the House this year, as it did in previous sessions. The current version, which amends the Congressional Review Act (CRA), differs somewhat from previous versions but still suffers from a fatal flaw – it is unconstitutional.
The current REINS Act has three parts. One part essentially reflects the recent Executive Order on Reducing Regulation and Controlling Regulatory Costs, except that the REINS Act only requires repeal of one regulation for each regulation adopted, rather than the E.O.'s two-for-one requirement. Another part of the REINS Act continues the CRA, but only for non-major rules. The final part, the part that is unconstitutional, provides that no "major rule" – defined as a "significant regulatory action" requiring a cost/benefit analysis under Executive Order 12866 – shall take effect until Congress "approves" it by joint …
To carry out their duty under the Constitution, senators must ask themselves the following question when considering a president's cabinet nominee: Will this person faithfully execute the laws, even if the president wishes to ignore them and carry out a contrary policy? Unless the answer to that question is a clear "Yes," they must reject the nominee.
Alexander Hamilton explained in The Federalist Papers that the Constitution authorizes the Senate to disapprove of presidential nominees to discourage the president from nominating candidates "personally allied to him" lest we have office holders with the "pliancy to render them obsequious instruments of his pleasure." The founders required Senate approval of "officers of the United States" to make sure that the executive branch faithfully executes the law, rather than formulates policy on its own. To that end, the Constitution requires all federal officeholders to swear an oath, not to …
