The Regulatory System Is an Important Part of Our Democracy. The 'Trump' Supreme Court Could Change That.
This is the first part of a two-post set. The second post is available here.
Last week, Matthew Yglesias published an important piece at Vox explaining the many ways conservatives have succeeded in exploiting fundamentally undemocratic features of our constitutional structure of government to advance their policy agenda. This strategy will have reached its grotesque culmination if they manage to seat Judge Amy Coney Barrett on the U.S. Supreme Court.
He’s rightfully angry about the situation – as should we all be – but the story he tells, thorough and infuriating as it is, misses an important point: It could actually get much worse. That’s because it's likely that Barrett will be a reliable vote in support of advancing the conservatives’ dream of stripping the U.S. regulatory system of its essential democratic features, transforming it into yet another vacuum cleaner with which the nation’s political and economic elites can suck up ever more wealth and power for themselves and away from the rest of us.
As Yglesias observes, the constitutionally prescribed methods for electing members of both chambers of Congress and the president allow for minority control. Indeed, this so-called “counter-majoritarian” design was intended as a feature …
As many of our allies and supporters know, CPR is now in the midst of a nationwide search for our next executive director. Earlier this month, with the start of the school year, Matt Shudtz left us to be a full-time parent of young home-bound children whose schools and daycare are restricted to virtual learning.
So, it's time for us to find new staff leadership. We're looking for a dynamic leader prepared to guide our nearly 20-year-old organization into its next stage of growth and impact. Since the days in the early aughts when you could squeeze all our Member Scholars and staff around a medium-sized conference table, we've grown to have more than 60 Member Scholars across the nation and a permanent staff of eight, all working virtually even before the pandemic. And, importantly, we've had and continue to have real impact on a number of …
Grappling with a contentious dispute over cross-state air pollution, Justice Ruth Bader Ginsburg, writing for the majority in Environmental Protection Agency v. EME Homer City Generation, first consulted the King James Bible. “‘The wind bloweth where it listeth, and thou hearest the sound thereof, but canst not tell whence it cometh, and whither it goeth,’ she wrote, “In crafting a solution to the problem of interstate air pollution, regulators must account for the vagaries of the wind.”
It was 2014, and at stake was a complicated, science-driven plan crafted by the EPA to limit air pollution that wafts from one state to endanger communities in another. The plan, which budgeted air emissions in certain states, promised to save thousands of lives and bring cleaner air to poor and minority neighborhoods. But in so doing, it would force several aging coal plants to close. Industry cried foul, saying …
An extraordinary Atlantic hurricane season is still underway, one that has seen the National Hurricane Center exhaust its supply of names and resort to Greek alphabet for remaining storms. This month was the worst September on record in terms of the number of named storms, and 2020 overall is second only to 2005’s devastating succession of hurricanes (which included Katrina) in the number of named storms over the entire season.
There's no mystery as to why: Climate change is driving an increase in the frequency and strength of Atlantic hurricanes. And it's doing it at a time when affected communities – especially Black, Brown, and low-income communities – are all the more vulnerable to natural disaster due to the Trump administration’s rollbacks of environmental safeguards and its reckless response to the COVID-19 pandemic. While Trump is pouring fuel on the fire, 2020’s portent of a future …
An underappreciated side effect of the modern conservative movement now epitomized by Trumpism is its dogged pursuit of any legal argument to support “the cause,” no matter how ridiculous or specious. Long-settled questions like nondelegation and the constitutionality of independent regulatory agencies are suddenly, if bizarrely, up for grabs again. Add to this list a new line of argument – now germinating like a mushroom spore in horse manure – that posits that citizen suit provisions, such as those included in the Clean Air Act and Clean Water Act, are unconstitutional infringements upon the so-called unitary executive.
Earlier this month CPR Member Scholar Joel Mintz demolished this argument in a pair of posts published here. In this post, I want to move the ball forward and argue that citizen suits offer an essential opportunity for public engagement in regulatory implementation and thus should be extended universally across the entire …
This post was originally published on Legal Planet. Reprinted with permission.
With Sen. Mitt Romney’s announcement this morning that he would support consideration of a nominee before the election, it now seems virtually certain that President Trump will be able to appoint a sixth conservative justice. How will that affect future climate policy? Here is a preliminary threat assessment.
The answer varies, depending on what policies we’re talking about. Overall, the implications of a 6-3 Court are bad. But they’re probably not as dire for environmental law as for other issues like racial equality or reproductive rights.
As a quick preliminary take on this, I’ll sort heightened legal risks of climate actions into high, medium, low, and wildcard. The wildcard risks actually worry me the most.
High Risk
Innovative regulations like Obama’s Clean Power Plan. Regulations by EPA that use existing statutory …
Recently, U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler spoke to commemorate the 50th anniversary of the EPA's founding. He used the opportunity to reiterate the agency's commitment to its “straightforward” mission to “protect human health and the environment.” He also emphasized that the agency’s mission meant “ensuring that all Americans – regardless of their zip code – have clean air to breathe, clean water to drink, and clean land to live, work, and play upon.”
Why did Wheeler refer to zip code? Because decades of research have documented that pollution, and its adverse health effects, are not spread equally across the country. Instead, polluting industry tends to be concentrated in certain zip codes that, due to a history of racist redlining and housing discrimination, are predominantly the home of Black and Brown Americans.
The groundbreaking 1987 study Toxic Waste and Race in the United States first …
This op-ed was originally published by The Revelator. Reprinted under a Creative Commons license (CC BY-NC-ND 3.0).
The COVID-19 pandemic has ushered in a wave of worrisome and needless regulatory relaxations that have increased pollution across the United States. Recent reporting by the Associated Press and other outlets has documented more than 3,000 pandemic-based requests from polluters to state agencies and the U.S. Environmental Protection Agency for waivers of environmental requirements. Numerous state governments, with the tacit encouragement of the EPA, went along with many of those requests. All too often, those waivers — requested, ostensibly, to protect American workers from exposure to the coronavirus — were granted with little or no review, notwithstanding the risks the resulting emissions posed to public health and the environment.
EPA invited this wave of waivers back in March, announcing it would relax its enforcement upon request, under cover of …
This op-ed was originally published in The Regulatory Review. Reprinted with permission.
"I'm not convinced it's real. I think it's nothing more than the flu. If I die from the virus, it was just meant to be," Thomas Seale, an attendee at the Sturgis Motorcycle rally, reportedly said of COVID-19.
An estimated 460,000 people who love motorcycle culture and the company of like-minded people attended the huge rally in Sturgis, South Dakota, population 7,000, for 10 days in August 2020. They rode around, had races, attended bike shows and concerts, and drank beer. Face masks were rare.
People told New York Times reporter Mark Walker about the core importance of the event: they met their spouses at earlier rallies, referred to their fellow participants as family, or had attended the rally for decades. When asked about the pandemic, the attendees explained they were not …
This is the second post of a two-part set. Click to read Part I.
As I noted in a previous post, the pending case of United States v. DTE Energy, Inc. tacitly raises issues concerning the constitutionality of both Supplemental Environmental Projects (SEPs) and the citizen suit provisions of environmental laws. This second post considers another constitutional issue that may emerge in the DTE Energy litigation: whether SEP agreements – and citizen suits more generally – interfere with a “core executive function” of the president and executive branch and longstanding constitutional notions of separation of powers. To resolve that question soundly, one must look to the text of the Constitution itself, the Federalist Papers, and the relevant body of law that the lower federal courts have already developed.
Notably, neither the Constitution nor the Federalist Papers provide a clear indication of what constitutes a “core executive function” or the …
