Due to NEPA, Trump's 'One-In, Two-Out' Order Does Not Apply to Environmentally Protective Regulations
This post is adapted from a recent law review article published in the University of Missouri—Kansas City Law Review.
In myriad ways – from speeches, favoritism toward polluting industries, and ill-advised regulatory rollbacks – the Trump administration has consistently exhibited unrestrained antagonism toward regulatory safeguards for health, safety, and the environment. One of the earliest manifestations of that antagonism – and arguably one of the most pernicious – was an executive order signed by the president only ten days after his term began.
Executive Order 13771, hereafter referred to as the "one-in, two-out" order, contained three directives to all federal departments and agencies. First, it provided that "unless prohibited by law, whenever an executive department or agency…publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed." Second, for fiscal year 2017, the president's order directed agency heads to ensure that the total incremental cost to regulated parties of all new final regulations be zero or less. And third, Executive Order 13771 decreed that any new incremental costs to the regulated community associated with new regulations be offset by eliminating existing costs associated with at least two prior regulations …
To this point, much of the focus in the discussion over the Green New Deal has been on the substance of the vision it lays out for a better society – and why shouldn't it be? There's some really exciting stuff included in the Green New Deal's toplines, which are by now well-rehearsed: a full-scale mobilization plan put in place over the next 10 years to get the United States to net zero carbon emissions; major government investments in clean energy infrastructure, energy efficiency upgrades for all buildings, and public transportation systems; ensuring a just transition for communities and workers reliant on the fossil fuel-based economy; guaranteed jobs with family-supporting wages; universal health care; and universal higher education.
Receiving scant, if any, attention, though, are the kinds of processes and institutions that will be necessary for implementing the Green New Deal's substantive vision. While these kinds of first-order …
2018 was one of the wettest years on record in Virginia, causing catastrophic floods and landslides, as well as unexpectedly high levels of pollution in the Commonwealth’s waterways and the Chesapeake Bay. While the last waterlogged year is only a recent memory for Virginians, seemingly unremarkable snow and rainfall at the end of February caused the James River to crest last week at its highest level in Richmond in almost ten years. Climate change has clearly transformed our experience with weather and our relationship with water. In a new report published today, the Center for Progressive Reform explores how this drives environmental injustice in Virginia through toxic flooding and the increasing risk of chemical exposures.
Over the last two years, plant explosions in Texas and flooded coal ash impoundments in North Carolina have reminded us about an unmet need to adapt our approach to chemical safety. And …
Originally published on Legal Planet.
I have a confession: When I started thinking about the possibility of a climate emergency declaration, it was mostly as a counterpoint to Trump's possible (now certain) declaration of an immigration emergency. As I've thought about it, however, it seems to me that there are enough potential benefits to make the idea worth serious consideration. A relatively restrained use of emergency powers could still have some real payoff.
In general, I'm not in favor of expanding the use of presidential power into new territory. As Trump illustrates on a nearly daily basis, presidential powers are dangerous in the wrong hands. But if the Supreme Court upholds Trump, that objection becomes pretty much moot.
Still, an emergency declaration isn't a magic wand that would allow a president to enact the Green New Deal. As I wrote in a previous post, it mostly gives …
