Progressive Regulatory Reform
This post was originally published as part of a symposium on ACSblog, the blog of the American Constitution Society. Reprinted with permission.
Until recently, you could be a very well-informed American – a lawyer, even – without ever having heard of the Chevron doctrine. That has changed enough that last month, The New Yorker had a "Talk of the Town" essay discussing Kavanaugh's views of the Chevron doctrine. The reason for the attention to Chevron is ultimately congressional deadlock, which means that the only viable path for big changes in policy is through the administrative process. That's how Obama created DACA and the Clean Power Plan; it's how Trump is trying to roll back Obama's achievements.
The Chevron doctrine is a key part of the way courts review these administrative actions because it gives agencies leeway in interpreting the statutes that authorize administrative action. This doctrine is largely a recognition that Congress gave administrators, not courts, the primary responsibility for implementing regulatory statutes. This doctrine has become a target for conservatives because it allows agencies to innovate in response to new problems.
Lisa Heinzerling, Peter Shane, and I have written an Issue Brief for the American Constitution Society that develops a …
Cross-posted from LegalPlanet.
The Trump administration is moving toward the view, long popular in industry, that when it regulates a pollutant, EPA can consider only the health impacts of that particular pollutant – even when the regulation will also reduce other harmful pollutants. This idea is especially important in climate change regulation because cutting carbon emissions almost always results in reductions of other pollutants like particulates that are dangerous to health. This may seem like a minor technical issue. But by ignoring the "co-benefits" of cutting carbon, the administration wants to justify drastic weakening of existing regulations. The administration's laser-like focus on the regulated pollutant is not consistent with the Clean Air Act, the legal basis for regulating carbon, or with general principles of law.
The courts have interpreted the Clean Air Act and other environmental statutes to require broad consideration of environmental impacts almost from the beginning …
Originally published in The Regulatory Review as part of a series on social justice and the green economy. Reprinted with permission.
Despite noisy political claims to the contrary, the weight of the evidence suggests that regulation has a small impact on the total number of jobs. Still, regulation is bound to have some effect on who has jobs, what kinds of jobs they have, and where those jobs can be found. How much should we care about that?
In a new article, Sidney A. Shapiro and Robert R. M. Verchick argue that environmentalists should devote far more attention to job loss. Their concern about job loss is well taken. Before responding to the issue, however, we need a better understanding of the extent of job loss due to regulation and a clearer map of the resulting types of harms.
To begin, we need to consider three kinds …
This post is part of CPR's From Surviving to Thriving: Equity in Disaster Planning and Recovery report. Click here to read previously posted chapters.
“No power, no water, no transport, roads were closed, many streets broken, houses destroyed and people crying.”
Those were the words of Maria Meléndez, the mayor of Ponce, the largest city in southern Puerto Rico, after Hurricane Maria devastated Puerto Rico and the Virgin Islands. She had good reason to complain. As pointed out in the Economist, “even the most attentive government would have struggled with Maria.” But the federal government’s response fell far short of attentive: “Instead of strong leadership, to cut through the difficulties, Donald Trump provided little help.”
The United States needs to do better than that. In this chapter, I explain the many roles of the Federal Emergency Management Agency (FEMA), the lead agency in disaster response …
This post is part of CPR's From Surviving to Thriving: Equity in Disaster Planning and Recovery report. Click here to read previously posted chapters.
On August 15, 2017, President Trump issued an executive order to expedite federal infrastructure-related decisions by allowing only 90 days for permit decisions and cutting back on flood safety requirements. Enthusiastic Republicans hailed the step. For instance, Rep. Ralph Abraham (R-LA) said he was “thrilled by Mr. Trump’s decision.” He dismissed catastrophic flooding in Louisiana the previous year as an “isolated event,” saying that the “bigger threat . . . is from costly regulations.” Ten days later, Hurricane Harvey hit Texas and western Louisiana.
An ounce of prevention is worth a pound of cure, or so goes the maxim. It could hardly be more apt than in the case of flood mitigation projects, since investments in resilience pay for themselves many times over when natural …
Cross-posted from LegalPlanet.
You've already heard a lot about Trump's pro-coal ACE rule. You're likely to keep hearing about it, off and on, throughout the next couple of years, and maybe longer. I've set out a rough timetable below, and at the end I discuss some implications.
Step 1: The Rulemaking
Aug. 2018 Notice of proposed rule issued (clock for comments starts with publication in the Federal Register)
Oct.-Nov. 2018 Comment period closes (60 days after clock starts, unless there are extensions)
Feb.-March 2019 EPA issues final rule (based on time between the advance notice of proposed rule and the actual proposal; could be longer)
Step 2: Judicial Review
Aug.-Sept. 2019 Oral argument in D.C. Cir. (based on scheduling in Clean Power Plan case for three-judge panel argument) The big issue in the case will be whether EPA is limited, as the Trump …
Cross-posted from LegalPlanet.
Understandably, most of the attention at the beginning of the week was devoted to the rollout of the Trump administration's token effort to regulate greenhouse gases, the ACE rule. But something else happened, too. On Tuesday, a D.C. Circuit ruling ignored objections from the Trump administration and invalidated key parts of a rule dealing with coal ash disposal. That rule had originally come from the Obama administration, and the court agreed with environmentalists that it was too weak. Trump's efforts to weaken it further may have hit a fatal roadblock.
Coal ash is produced in huge quantities by coal-fired power plants. As the opinion describes, it's just chock-full of toxic substances. Traditionally, the industry just dumps it, in dry or wet form, in a pond or reservoir. If it escapes suddenly, it can cause a massive toxic flood; if slowly, it can contaminate …
Cross-posted from LegalPlanet.
Last Thursday, the Ninth Circuit ruled that Scott Pruitt had no justification for allowing even the tiniest traces of a pesticide called chlorpyrifos (also called Lorsban and Dursban) on food. This is yet another judicial slap against lawlessness by the current administration.
Chlorpyrifos was originally invented as a nerve gas, but it turns out that it kills insects quite satisfactorily. (I remember ads for "Big Foot Lorsban" from back when I lived in downstate Illinois, many years ago. As I recall, the ad showed Lorsban stomping out insects in a farmer's field.) In the past, EPA had set a maximum level of pesticide residue on foods, which the statute allows only if there's no substantial doubt about safety at that level. But there's now a lot of evidence that even trace amounts chlorpyrifos can harm babies and children. Despite the evidence, EPA stalled for …
Cross-posted from LegalPlanet.
Trump is proposing to gut CO2 standards for cars, freezing 2020 CAFE fuel-efficiency standards in place for years to come. Without the freeze, the standards would automatically ramp up. He also wants to eliminate California's ability to set its own standards, which many other states have opted to adopt. Here are seven key questions about Trump's proposed rollback and some answers.
Do the car companies really want this?
A: Not so much. It's not that they love being regulated. But the big downside for the car companies is regulatory uncertainty. Putting out a new car model costs $1-6 billion and takes 2½ to 3 years. Trump's rollback is going to be tied up in court for at least a year, maybe two, even assuming it's ultimately upheld. In the meantime, manufacturers won't be able to plan for post-2020 models. The manufacturers don't need this …
This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court.
Presidents control crucial government agencies with authority over the environment, food and drug safety, and workplace conditions. Through various environmental, health, safety, and other laws, Congress has given these agencies broad authority to issue rules and regulations that affect the lives of every American. But current law provides safeguards against arbitrary decisions – safeguards that Judge Brett Kavanaugh would weaken or eliminate if confirmed to the U.S. Supreme Court.
These safeguards are designed to promote public input and force agencies to disclose their evidence and reasoning to public scrutiny. Agencies must disclose proposed rules, obtain public comment, and then provide explanations of their decisions. As interpreted by the courts, this means an agency has to provide enough information to allow substantive comments, and it has to give a reasoned …
