Why Is Trump Getting the Cold Shoulder from the Car Companies?
Originally published on Legal Planet.
Usually, you'd expect a regulated industry to applaud an effort to lighten its regulatory burdens. So you would think that the car industry would support Trump's effort to roll back fuel efficiency standards for new vehicles and take away California's authority to set its own vehicle standards. But that effort is being met by silence in some cases and vocal opposition in others. According to E&E News, "senior officials from EPA and the National Highway Traffic Safety Administration . . . told automakers to support the rollback or risk angering President Trump by siding with California's more stringent tailpipe emissions rules. But since the call, not one automaker has issued a statement of support." Some, like Ford, remain openly opposed to the rollback, which attempts to freeze federal fuel efficiency standards and oust California from setting its own standards.
One reason for the industry's lack of enthusiasm is probably doubt that the rollback will actually succeed. In fact, the odds are good that the rule will not survive litigation. California has some good arguments that the waiver it received during the Obama administration, which empowered the state to set its own standards, is irrevocable. In addition, the …
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 …
Originally published on Legal Planet.
Trump finally pulled the trigger and declared a national emergency so he can build his wall. But if illegal border crossings are a national emergency, then there's a strong case for viewing climate change in similar terms. That point has been made by observers ranging from Marco Rubio to Legal Planet's own Jonathan Zasloff in a post last week. I agree, but I want to dig deeper because it's such an important point.
In order to uphold Trump's emergency declaration, the Supreme Court will have to either rule that the definition of emergency is exceedingly broad or that courts have little or no power to scrutinize a presidential declaration. There is a genuine legal basis for calling climate change a national emergency, as opposed to Trump's ridiculous border-security declaration.
One reason why it would be hard for the Supreme Court to …
Originally published on Legal Planet.
Climate change is not just a long-range problem; it's one that will get much worse in the future unless major emissions cuts are made. For instance, sea levels will continue to rise for centuries. But the people who will be harmed by these changes can't go to court: they haven't been born yet. How can their interests be represented in court? And even people now alive who might still be around in, say, 2100, will have trouble proving any injury is "imminent," as the Supreme Court requires for standing.
Current Supreme Court precedents recognize three possible ways to get future injuries into court. The first is to find a present-day, real-world effect due to a possible future disaster. In the Duke Power case, a citizens' group was challenging a federal law that limits the liability of nuclear reactors for major accidents …
Originally published on Legal Planet.
Conservatives, with full support from Donald Trump, have come up with a menu of ways to weaken the regulatory state. In honor of National Backward Day – that's an actual thing, in case you're wondering, and it's today – let's think about reversing those ideas. In other words, let's try to come up with similar mechanisms to strengthen protections for public health and the environment instead of weakening protections. It's an interesting experiment, if nothing else.
Here's what the Backward Day effort might look like:
The 2-for-1 Executive Order. One of Trump's first actions was to issue an executive order calling for repealing two regulations for every new regulation. Let's reverse that: if the government is going to repeal a regulation that protects public health or the environment, it needs to adopt two new protective regulations to take its place. After all, protecting the …
Originally published on Legal Planet.
The Trump administration has many energy and environmental initiatives, none of them good. But in terms of shoddy analysis and tenuous evidence, the worst is the administration's attempt to freeze fuel efficiency standards. For sheer lack of professionalism, the administration's cost-benefit analysis is hard to match. And you can't even say that the administration is captive to industry, because this isn't something industry asked for. It's a case of untethered ideology trumping evidence and economics.
By way of background, §202 of the Clean Air Act requires EPA to impose standards for emissions from new motor vehicles once it has found that a pollutant endangers human health or welfare. During the Obama administration, EPA issued such standards for greenhouse gases, in tandem with the National Highway Traffic Safety Administration (NHTSA, pronounced 'nitsa'), which regulates fuel efficiency standards for vehicles. The car industry was …
Originally published on Legal Planet.
Juliana v. United States, often called the "children's case," is an imaginative effort to make the federal government responsible for its role in promoting the production and use of fossil fuels and its failure to control carbon emissions. The plaintiffs ask the court to "declare that the United States' current environmental policy infringes their fundamental rights, direct the agencies to conduct a consumption-based inventory of United States CO2 emissions," and use that inventory to "prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2 so as to stabilize the climate system and protect the vital resources on which Plaintiffs now and in the future will depend."
More specifically, they ask the court to "order Defendants to cease their permitting, authorizing, and subsidizing of fossil fuels and, instead, move to …
Originally published on Legal Planet.
In theory, cost-benefit analysis should be just as relevant when the government is deregulating as when it is imposing new regulations. But things don't seem to work that way. This is the second of two blog posts analyzing how costs and benefits figured in decisions during the past two years of unified GOP control of the federal government (read the first post here). Today, I focus on Congress.
For the first time in history, Congress made aggressive use of the Congressional Review Act (CRA) to roll back federal regulations. It had only been used once before, but in 2017, Congress overturned fifteen government regulations in short order. Liberals decried these regulatory rollbacks as a mass attack on the environment and the public interest more generally. Conservatives applauded Congress for cutting the heavy cost of government regulation and boosting the economy. It appears …
Originally published on Legal Planet.
Republicans are apparently worried that if Trump could use emergency powers by declaring border security a national emergency, the next president could do the same thing for climate change. There's no doubt that this would be far more legitimate than Trump's wall effort. Border crossings are much lower than they were ten years ago; he has said in the recent past that his prior efforts have vastly improved border security. In contrast, the Pentagon has classified climate change as a threat to national security, and Congress under Republican control has even endorsed this view. Furthermore, scientists have made it clear that we have a limited time to head off a disastrous outcome.
With that in mind, I did some quick research to see what powers a president might have to take emergency action against climate change. This doesn't mean I think it's …
This op-ed was orignally published in the Washington Monthly.
In December of 2017, Donald Trump gathered the press for a variation on a familiar activity from his real estate mogul days. Stretched between a tower of paper taller than himself, representing all current federal regulations, and a small stack labeled "1960," was a thick piece of red ribbon – red tape, if you will. The president promised that "we're going to get back below that 1960s level." With his daughter Ivanka and other advisors by his side, Trump used comically large scissors to cut the ribbon.
Cutting regulations has been a priority for nearly every Republican politician since at least the 1980s. But the Trump-era GOP, unsatisfied with the existing deregulatory toolkit, has found a bigger pair of scissors. Call it cost-cost analysis: to justify getting rid of regulations they dislike, Republicans have decided to systematically …
