This op-ed was originally published in The Hill, and the full version is available on the paper's website. It was published before Sens. Joe Manchin and Chuck Schumer announced their deal on the Inflation Reduction Act.
The Biden administration’s path forward on climate change — as the widely deployed metaphor goes — has become more difficult with the U.S. Supreme Court’s recent decision in West Virginia vs. Environmental Protection Agency (EPA) and Sen. Joe Manchin’s (D-W.Va.) apparent veto of a reconciliation package that contains climate measures. If the Biden administration is to successfully navigate that path — and it must if we are to avert the worst consequences of the climate crisis — the president will need to abandon the “compass” that his predecessors have relied on for decades to guide their policy agenda: Executive Order 12866: Regulatory Planning and Review.
First issued in 1994, the executive order empowers a small White House bureau called the Office of Information and Regulatory Affairs (OIRA) to review and approve agencies’ biggest or most controversial rules. The order further requires OIRA to evaluate those rules using a methodology called “cost-benefit analysis,” which is highly biased against protective safeguards and provides convenient cover …
This op-ed was originally published by The Regulatory Review. Reprinted with permission.
Law professors dream of the day when the U.S. Supreme Court will rely on one of their publications for a proposition that is crucial to the outcome of an important case. What better validation of all the blood, sweat, and tears that were poured into the publication? What a surge of power to discover that their work has had an impact, if only in the context of a single lawsuit. What an existential high to know that they have finally arrived at the pinnacle.
We experienced none of those emotions when reading Chief Justice John Roberts' opinion in West Virginia v. EPA. The citations to our work were both minor and innocuous, so that fact helps allay any sense of accomplishment. But equally significant, the Court's analysis bears little relationship to our own understanding …
This is the second of two posts on wage theft and how it hurts workers, families, and communities. You can read the first post here.
Corporations’ widespread use — and abuse — of forced arbitration in employment contracts allow them to steal billions of dollars from workers every year with impunity. Employers have unilaterally imposed mandatory arbitration agreements onto 60 million American workers, and the practice is only becoming more widespread. By 2024, 80 percent of nonunion workers will be subject to forced arbitration.
Those same employers cheat their workers out of billions by paying lower than the minimum wage, denying workers overtime wage rates, coercing employees to work “off the clock” before or after shifts, denying workers legally mandated breaks, confiscating tips, and more. Corporations rob workers of an estimated $15 billion per year through minimum wage violations alone, but the real extent of wage theft is likely …
This is the second part of a post that was originally published on Legal Planet. The first part ran on July 19. Reprinted with permission.
What Legal Authority Would an Emergency Climate Declaration Give the President?
What government powers would be unlocked by declaring a climate change emergency? One immediate possibility would be to use the same power that former President Trump used to divert military construction funds to other uses — in this case, perhaps building wind or solar farms or new transmission lines. But what else could President Biden do?
The Brennan Center has compiled a helpful list of almost 150 statutes giving the president special powers during emergencies. The list doesn’t map the outer perimeter of presidential powers — there are other laws that give presidents powers to take action on the basis of national security, and the president also has some ill-defined, though not …
This is the first part of a post that was originally published on Legal Planet. Click to read Part II. Reprinted with permission.
Based on press reports, it now seems likely that President Joe Biden will soon declare climate change to be a national emergency. Would this be legal? Would it unlock important powers that could be used to fight climate change? My answers are: It would probably be legal, and it would unlock some significant powers. But an emergency declaration is not a magic wand that gives presidents a blank check. It would allow some constructive steps to be taken, but within limits.
I wrote several blog posts about the idea of a climate emergency in 2019. Back then, interest in presidential emergency powers had been sparked by former President Trump’s use of emergency power to help build his border wall. I’ve adapted the …
This is the first of two posts on wage theft and how it hurts workers, families, and communities. For the next post on wage theft and forced arbitration, check this space on Wednesday, July 20.
Wage theft is a massive crisis for workers, but federal, state, and local agencies have failed to address the problem. Wage theft occurs in many forms: Paying wages lower than the minimum wage, not paying overtime wages, coercing employees to work "off the clock" before or after shifts, prohibiting workers from taking legally mandated breaks, confiscating tips, and more.
A 2021 report from the Economic Policy Institute found that workers are deprived of an estimated $15 billion per year through minimum wage violations alone, but state and federal enforcement only recovered $1.7 billion in unlawfully withheld wages between 2017 and 2020 — only 2.8 percent of the estimated $60 billion stolen …
The apparent death of an urgently needed clean energy and climate justice bill is a staggering loss for the country and the climate.
Because no Senate Republicans were expected to support the legislation, passage fell to Democrats, who hold a razor-thin majority in the U.S. Senate — and efforts to make an intraparty deal failed to emerge despite months of effort.
Senate Majority Leader Chuck Schumer (D-N.Y.) and Sen. Joe Manchin (D-W.V.) had reportedly reached an agreement on a prescription drug plan — a major sticking point in negotiations over the legislation, originally known as the Build Back Better Act. But Manchin effectively killed the bill’s clean energy provisions on July 14.
Left on the Senate’s cutting room floor appear to be up to $300 billion in clean energy provisions, including:
This op-ed was originally published by the Chronicle of Philanthropy. It is reprinted here with permission.
The rally outside New York City Hall was a familiar scene of speakers and placards decrying the injustice of near-poverty-level wages. The hundreds of workers gathered that day in March demanded a minimum wage of $21 per hour and a 6 percent cost-of-living adjustment — not unreasonable given the cost of living there.
What made this rally different was that the workers were not protesting Amazon or other large corporations. They were nonprofit workers seeking better pay from the food pantries, domestic-violence shelters, and foster-care groups they serve.
In New York State, human-service workers earn only 70 percent of what their counterparts at government agencies are paid — not enough to survive in normal times, let alone during a period of escalating inflation. Given the demographics of the state’s human-service workers — 66 …
Duke Energy, a major corporation with near-monopoly control over North Carolina’s electric grid, has outsized influence over the state’s decarbonization plan, which is now under review. The state legislature ordered the utility commission to make a 70 percent reduction in carbon emissions by 2030 and to reach carbon neutrality by 2050. Duke Energy has submitted a plan to the commission to meet those goals, but the plan fails to take affordability and equity into full account. What’s worse: Low-wealth people aren’t required — or, in many cases, even able — to participate in the planning process. They’re shut out.
For too many low-wealth North Carolina residents, energy bills are already too high. These communities have contributed little to climate change, but they face steep increases in electricity rates as the planet heats up and storms become more frequent and severe. There is a better …
The Center for Progressive Reform has joined close to 1,000 organizations and individuals in providing comments on California's long-awaited plan for achieving carbon neutrality, the Draft 2022 Scoping Plan Update (Draft Plan). Gov. Gavin Newsom gave the California Air Resources Board (CARB), the state agency tasked with coordinating the plan, a daunting challenge: achieving carbon neutrality by 2045 at the latest.
Our comments conclude that the state should (1) be more ambitious, (2) more explicitly achieve multiple objectives, including environmental justice, and (3) develop a supplemental plan that more specifically outlines the policy tools the state will employ to achieve its objectives.
Reduce Reliance on Fossil Fuels More Quickly
The Draft Plan's 2045 timeline — spanning more than two decades — will perpetuate fossil fuel use and associated pollution. The plan proposes deadlines for ending the sale of fossil-fuel based goods, like trucks, cars, and appliances, but assumes …