The Thin Gray Line
Originally published on Legal Planet.
"Bureaucrat" is just another name for public servant. It has been said that a thin blue line of police protects us from the worst elements of society. But it is a thin gray line of underpaid, overworked, anonymous bureaucrats who protect society against more insidious risks – risks ranging from nuclear contamination to climate change to unsafe food. Due to Trump's government shutdown, many of these people are currently not being paid. Yet without the professionals who spend their careers as public servants, the government would be unable to perform its essential task of protecting us all against major risks.
That is the theme of Michael Lewis's book, The Fifth Risk. He tells the stories of some of the people who work ceaselessly to protect us, applying expert knowledge to deal with invisible threats. And Lewis also shows how those efforts are being undermined by an administration staffed with ideologues who don't have that expertise and don't care to listen to those who do.
For instance, Lewis tells the story of Catherine Woteki, a scientist at the Agriculture Department. In the 1960s, the University of Virginia didn't admit women, so she went to the "women's auxiliary" …
A version of this post was originally published on Legal Planet.
What are the key things to watch for in 2019 in the environmental area?
Regulations.
- According to the Trump administration’s schedule, three big rules should be issued in March: repeal of the Waters of the United States rule (WOTUS), repeal and replacement of the Clean Power Plan, and the freeze on fuel efficiency standards. This seems very ambitious to me, especially for the last two where there are major technical issues to be resolved. EPA has already lost a couple of weeks due to the shutdown, and there’s every likelihood that will continue. But even with slippage, the rules are likely to come out sometime next year. There will also be movement on a bunch of other rules, such as the effort to loosen restrictions on methane emissions.
- In addition, just prior to shutting …
A version of this post was originally published on Legal Planet.
Yes, it was a grim year in many ways. But there actually were some bright spots. Here are just the high points.
- Scott Pruitt. Pruitt resigned under fire. While his successor may be more successful in some ways, the fact remains that Pruitt was a disgrace. We're better off without him. Trump was apparently unfazed by his incompetence and aversion to hard work. But the succession of scandals and investigations – about personal travel at government expense, extravagance, the top-secret phone booth in his office, and so on and so on – eventually got to be too much of a distraction that threatened to undermine Trump's own monopoly on the spotlight.
- Ryan Zinke. Yet another bad apple who was forced out. His acting replacement is equally wrong-headed and more competent but has multiple conflicts of interest that require …
Cross-posted from Legal Planet.
In terms of regulatory policy, the second half of Trump's term is shaping up to look a lot like Obama's final two years in office. Congress won't be doing much to advance Trump's environment and energy agenda, as was the case with Obama. So, like Obama, Trump's focus will be on administrative action, particularly regulatory initiatives (or deregulatory ones, in Trump's case). The big question is how these efforts will fare in court. I want to discuss three aspects of that question: timing, judicial review of statutory issues, and judicial review of policy analysis.
Timing. The Trump people are keenly aware that some of Obama's most important rules were still in the litigation process when he left office, which has kept those rules hanging in the wind for the two years since Trump took office. They seem desperate to avoid the same fate …
Cross-posted from Legal Planet.
This is the second of three posts assessing the first two years of the Trump administration. You can read the first post here.
We all seem to be subscribed to the "All Trump News, All the Time" newsfeed. It may be helpful to step back a bit and compare Trump with his last Republican predecessor, George W. Bush.
How do the two stack up? Bush and Trump were very different in character and style, but their regulatory aims were similar. Bush and Trump were both trying to steer the country in the same directions in terms of regulatory policy: increased use of fossil fuels, less environmental regulation. But the Republican Party has been radicalized since Bush's day, and in environmental affairs, the Trump administration reflects that radicalization.
For instance, whereas Bush actually created important ocean national monuments (though it was a bit out …
Cross-posted from Legal Planet.
In September 2017 – that seems so long ago! – Eric Biber and I released a report assessing the state of play in environmental issues 200 days into the Trump administration, based on an earlier series of blog posts. As we end Trump's second year, it's time to bring that assessment up to date. This is the first of three posts examining what Trump has done (and hasn't done) in terms of environment and energy.
For this first post, I'll follow the same outline as the 9/17 report but omit a lot of the detail.
Legislation. Eric and I considered substantive legislative changes very unlikely although potentially very damaging. Almost no substantive changes have made it through Congress. The one exception was the provision in the Senate tax bill for opening up ANWR for drilling, which was able to use reconciliation procedures since it …
Cross-posted from Legal Planet.
The Center for Law, Energy, and the Environment published a survey of state energy policies through 2017. The trend toward renewables has continued in 2018. Even after nearly two years of the Trump presidency, states haven't given up. Instead, they're moving forward aggressively. If anything, Trump seems to have stimulated these states to try even harder.
Here's a quick rundown of what's happened so far in 2018:
- California mandated that all new homes have solar energy and adopted bold new goals in a statute mandating 100 percent carbon-free electricity by 2045.
- Colorado adopted California's car standards, including greenhouse gas standards.
- Connecticut adopted new laws requiring utilities to get 40 percent of their power from renewable sources by 2030, mandating that the state cut greenhouse gases 45 percent below 2001 levels by 2030, requiring that government-funded coastal projects take into account a projected sea …
Cross-posted from Legal Planet.
In my last post, I talked about how Obama's Clean Power plan was the right response to a changing grid. The grid is in the process of changing even more. It was designed for some relatively straightforward tasks. The main power plants, mostly burning coal (but sometimes natural gas or nuclear energy), ran day and night. They were supplemented by other power plants when needed to meet load (customer demand). All the power flowed from these central power plants and was instantly used by consumers, who were billed based on their total consumption and sometimes on their peak demand. The fundamental rule was that increasing demand for power allowed for greater economies of scale, reducing costs. Thus the goal of electric utility companies was to increase demand for electricity, thereby lowering average production costs and increasing their profits.
Power systems today have begun …
Cross-posted from Legal Planet. Click here for the follow-up post.
If you've been reading this blog or otherwise keeping up with environmental law, you've probably heard this a hundred times: In rolling back Obama's signature climate regulation, the Clean Power Plan, the Trump administration is relying on the idea that EPA's jurisdiction stops at the fence line. That is, according to the Trump folks, EPA can impose measures on each plant, but not measures that go beyond the fence line like requiring more use of renewable energy of a coal or natural gas generator. I've blogged previously about why this argument might not even apply because reducing your operating hours is something you can accomplish without getting close to the fence, let alone crossing it.
But today I want to talk a little more generally about why EPA should have some flexibility in interpreting the law to …
Cross-posted from LegalPlanet.
In its desperate effort to save the failing American coal industry, the Trump administration promised to use emergency powers to keep coal-fired power plants in operation even though they're not economically viable. That would have been the kind of disruptive change that Trump promised to bring to Washington. But the effort seems to have gone aground, according to Politico. This outcome tells us something about the gap between Trump's promises of committing regulatory mayhem and the realities of modern governance.
The Trump plan, which originated with a coal industry magnate and major Trump donor, would have required an extraordinary stretch of the statutes in question. The plan was to use one or more of a trio of emergency provisions. The first is a section of the Federal Power Act that authorizes the Department of Energy to order generators to run during wars or other …
