The Hill Op-Ed: Brett Kavanaugh's Opportunistic Corner Cutting
This op-ed originally ran in The Hill.
Tens of thousands of thoughtful — and not so thoughtful — words have been written about Supreme Court nominee Brett Kavanaugh’s substantive positions on issues the court will face. At least one question has not been addressed, however: Is Judge Brett Kavanaugh so ideological about certain topics that he veers toward sloppiness?
As a law professor, I spend a lot of time around first-year law students, introducing them to the professional standards that define a good lawyer. My advice includes three things they must never do: ignore inconvenient language in a law to distort its meaning; rocket off on tangents that have little to do with the subject at hand; and cite one law to support a conclusion in another area to which it does not apply.
Kavanaugh has done all three things in D.C. Circuit Court of Appeals opinions of significance and his colleagues have rightly called him out for this professionally dubious behavior. The three examples have to do with administrative law, his specialty, and an area where he will try to lead the Supreme Court if confirmed.
This story was originally published by The Revelator.
In his first 19 months in office, Donald Trump has repeatedly defied established presidential norms — so flagrantly that it almost obscures the many ways he's changed national policies for the worse. But despite all the scandals and mean-spirited tweets, it's likely that his most enduring impact will be his administration's systematic, reckless dismantling of ongoing efforts to curtail human-caused climate change.
The miseries of global climate disruption are already upon us. During the current decade, the world has experienced record heat waves, as well as intermittent periods of extraordinary cold, devastating floods, prolonged droughts, dangerous wildfires and large and powerful hurricanes. Despite these alarm bells and urgent warnings from scientists around the globe, the volume of carbon dioxide and other greenhouse gases emitted into the atmosphere by human activity has continued to rise each year.
One clear example of …
For disadvantaged communities, the so-called Affordable Clean Energy Rule (ACE) falls far short of the protections and opportunities included in the Clean Power Plan, the Obama administration rule that the Trump EPA is now attempting to repeal and replace.
One of the Clean Power Plan's (CPP) essential features was its recognition that the electricity sector operates as an interconnected system. Because of its system-wide approach, the CPP could achieve significant reductions of greenhouse gases and other pollutants by encouraging utilities to shift from pollution-intensive coal to less-polluting alternatives, including natural gas and renewables. In contrast, the ACE rule focuses narrowly on coal-fired power plants, considering only facility-specific "heat-rate improvements," thus sacrificing a host of other ways to both conserve energy and prevent pollution. The proposed rule also fails to prompt states to engage in the more comprehensive and longer-term planning that is necessary to achieve significant …
Cross-posted from LegalPlanet.
You've already heard a lot about Trump's pro-coal ACE rule. You're likely to keep hearing about it, off and on, throughout the next couple of years, and maybe longer. I've set out a rough timetable below, and at the end I discuss some implications.
Step 1: The Rulemaking
Aug. 2018 Notice of proposed rule issued (clock for comments starts with publication in the Federal Register)
Oct.-Nov. 2018 Comment period closes (60 days after clock starts, unless there are extensions)
Feb.-March 2019 EPA issues final rule (based on time between the advance notice of proposed rule and the actual proposal; could be longer)
Step 2: Judicial Review
Aug.-Sept. 2019 Oral argument in D.C. Cir. (based on scheduling in Clean Power Plan case for three-judge panel argument) The big issue in the case will be whether EPA is limited, as the Trump …
This post is part of a series about climate change and the increasing risk of floods releasing toxic chemicals from industrial facilities. It is based on a forthcoming article that will be published in the Sustainable Development Law & Policy Brief.
As climate change makes extreme weather events increasingly frequent, the risk of flooding on our rivers and shores increases. As I noted in a previous post in this series, this puts us at risk for toxic flooding – the combination of floodwaters and industrial toxic spills unleashed during flooding events. Although the storms themselves are not preventable, we can at least avoid placing toxic chemicals in the path of floodwaters. So what role can the American people play in developing stronger, more proactive policies designed to prevent, rather than merely respond to, toxic flooding?
The good news is that existing federal and state environmental laws provide vehicles …
Cross-posted from LegalPlanet.
Understandably, most of the attention at the beginning of the week was devoted to the rollout of the Trump administration's token effort to regulate greenhouse gases, the ACE rule. But something else happened, too. On Tuesday, a D.C. Circuit ruling ignored objections from the Trump administration and invalidated key parts of a rule dealing with coal ash disposal. That rule had originally come from the Obama administration, and the court agreed with environmentalists that it was too weak. Trump's efforts to weaken it further may have hit a fatal roadblock.
Coal ash is produced in huge quantities by coal-fired power plants. As the opinion describes, it's just chock-full of toxic substances. Traditionally, the industry just dumps it, in dry or wet form, in a pond or reservoir. If it escapes suddenly, it can cause a massive toxic flood; if slowly, it can contaminate …
Earlier this week, 19 Member Scholars with the Center for Progressive Reform (CPR) submitted comments to the Environmental Protection Agency (EPA) that provide a detailed legal and policy critique of the agency's "benefits-busting" rulemaking.
Since early July, EPA has been accepting feedback on an advance notice of proposed rulemaking (ANPRM) that could lead to a complete overhaul of how the agency performs cost-benefit analysis on its environmental and public health rules. Consistent with other anti-safeguard moves the Trump EPA has made, this overhaul would further rig an already rigged system for conducting these analyses. The plainly intended result would be to make it harder to justify needed public protections by putting an industry-friendly thumb on the scale.
As the CPR Member Scholars explain, the real danger is that EPA could try to use this rulemaking to institute a one-size-fits-all "supermandate" requiring all agency decision-making to be conducted …
The Trump administration has aggressively sought to undermine public safeguards since taking office, all under the guise of making America great (again?). Nowhere has this been more evident than the Environmental Protection Agency (EPA), where Trump appointees have sought to attack most every standard adopted during the Obama era, as well as long-standing analytical procedures (see here and here) designed to ensure any new standards are evidence-based and scientifically sound. These attacks do not stop at EPA, however. Trump has also undermined worker protections at every turn.
At the end of July, Trump's Occupational Safety and Health Administration (OSHA) proposed to roll back an Obama-era rule finalized in May 2016 to improve tracking of worker injuries and illnesses by requiring employers to electronically submit certain records to the agency. The final rule did not ask employers to document additional information than is already required under existing recordkeeping …
Cross-posted from LegalPlanet.
Last Thursday, the Ninth Circuit ruled that Scott Pruitt had no justification for allowing even the tiniest traces of a pesticide called chlorpyrifos (also called Lorsban and Dursban) on food. This is yet another judicial slap against lawlessness by the current administration.
Chlorpyrifos was originally invented as a nerve gas, but it turns out that it kills insects quite satisfactorily. (I remember ads for "Big Foot Lorsban" from back when I lived in downstate Illinois, many years ago. As I recall, the ad showed Lorsban stomping out insects in a farmer's field.) In the past, EPA had set a maximum level of pesticide residue on foods, which the statute allows only if there's no substantial doubt about safety at that level. But there's now a lot of evidence that even trace amounts chlorpyrifos can harm babies and children. Despite the evidence, EPA stalled for …
Originally published on Environmental Law Prof Blog.
Secretary of Commerce Wilbur Ross just released a statement directing NOAA to "facilitate" water use to respond to California's wildfires (the statement follows several tweets in which President Trump implied that the cause of California's wildfires was the state's ill-advised decision to let some of its rivers flow downhill to the ocean). Because I've already seen a few befuddled headlines about what this all means, I thought a short post explaining a few key points about what NOAA can and can't do here would be helpful.
- Importantly, NOAA does not itself manage reservoirs, forests, or firefighting equipment. It just regulates activities that might harm threatened or endangered salmon (and other oceanic or diadromous species). So headlines saying that Secretary Ross ordered NOAA to "use" water to fight fires are not accurate. Instead, he has ordered NOAA to look favorably upon …
