Major Questions About the Major Questions Doctrine
This post was originally published on Legal Planet. Reprinted with permission.
Unless you're deeply immersed in administrative law, you may not have heard of the major questions doctrine. It's a legal theory that conservative judges have used with increasing rigor to block important regulatory initiatives. The doctrine places special obstacles on agency regulation of issues of "major economic and political significance."
In its initial outing, the U.S. Supreme Court's conservative majority said that the Food and Drug Administration (FDA) couldn't regulate tobacco without a clear congressional mandate. Most recently, it has applied the doctrine in striking down the Centers for Disease Control and Prevention (CDC) moratorium on evictions during the pandemic. It now seems poised to do so in a case involving EPA's power to regulate carbon emissions from coal-fired power plants.
Unfortunately, there are a host of major questions about the doctrine's legal scope that the conservative Court has never resolved. Here are just a few of them:
What's the effect of holding something to be a major question? Sometimes, the Court has said that if a statute is ambiguous about a major question, the Court will decide the question for itself rather than deferring to the …
This post was originally published on Legal Planet. Reprinted with permission.
Cost-benefit analysis is required for all major regulations. It's also highly controversial, as well as being a mysterious procedure unless you're an economist. These FAQs will tell you what you need to know about how cost-benefit analysis (CBA) fits into the regulatory process, how it works, and why it's controversial.
Q: Let's start with a basic question. Exactly what is cost-benefit analysis?
A: The term cost-benefit analysis is sometimes used to mean any comparison of pros and cons, which is something we all do every day in ordinary life. For present purposes, though, it means a very rigorous way of balancing pros and cons, using economic analysis to quantify the costs and benefits of an action. Basically, everything gets converted into dollar equivalents in this process.
Q: Why do agencies conduct cost-benefit analyses?
A: A few …
This post was originally published on Legal Planet. Reprinted with permission.
The Biden administration is looking to make big regulatory changes, not least regarding climate change. Yet the White House office overseeing regulations is vacant. The obscurely named Office of Regulatory Affairs and Information (OIRA) has to sign off on all significant regulations. Even the dilatory Donald Trump had nominated a permanent administrator by July of his first year. Biden's delay in filling this important office is hard to defend.
The main reason for the delay is probably that Biden doesn't have the OIRA administrator's boss in place, either. Biden's nominee to head the Office of Management and Budget (OMB) had to be withdrawn when her Senate support evaporated. That was on March 2, however, and there's still no new OMB nomination six months later. Maybe the reason is an inability to find a candidate who can …
This post was originally published on Legal Planet. Reprinted with permission.
On Wednesday, Oregon Governor Kate Brown signed a package of four clean energy bills. These bills move the state to the forefront of climate action. They ban new fossil fuel plants and set aggressive targets for the state's two major utilities, requiring emission cuts of 80 percent by 2030, 90 percent by 2035 and 100 percent by 2040. This is not only a major step forward for the state; it should also clear the path to closer collaboration among Washington State, Oregon, and California on climate issues.
In signing the bills, Brown observed, "As we have all been experiencing, climate change is no longer a distant threat. It is here. In Oregon, and across the West, we are feeling its impacts every day."
The bill setting the state's aggressive targets passed the Oregon Senate on …
This post was originally published on Legal Planet. Reprinted with permission.
For the last century, the Supreme Court has tried to operationalize the idea that a government regulation can be so burdensome that it amounts to a seizure of property. In the process, it has created a house of mirrors, a maze in which nothing is as it seems. Rules that appear crisp and clear turn out to be mushy and murky. Judicial rulings that seem to expand the rights of property owners turn out to undermine those rights. The Court's decision last week in Cedar Point Nursery v. Hassid illustrates both points.
Cedar Point Nursery involved a California law giving labor organizers the right to go into a farm to talk with farmworkers, thereby interfering with the owner's ability to exploit its workers. (No, that's not quite the language the Court used.) The Supreme Court held …
This post was originally published on Legal Planet. Reprinted with permission.
Even most lawyers, let alone the rest of the population, are a bit fuzzy on how the regulatory system works. As the Biden administration is gearing up to start a slew of regulatory proceedings, here's what you need to know about the process.
Issuing Regulations
Q: Where do agencies like EPA get the power to create regulations?
A: EPA and other agencies are created by Congress. They also get the power to issue regulations from laws passed by Congress. For instance, the Clean Water Act tells EPA to issue regulations based on the "best available technology" for controlling the discharge of toxic water pollutants.
Q: Who decides whether an agency should start the process to issue a new regulation?
A: Some statutes set deadlines and require agencies to act. In those situations, a court can intervene …
This post was originally published on Legal Planet. Reprinted with permission.
Hurricanes Harvey and Maria. California wildfires. Superstorm Sandy. The great Texas blackout. The list goes on.
These mega-events dramatize the need to improve our disaster response system. The trends are striking: escalating disaster impacts, more disaster clustering, more disaster cascades, and less predictability. We need to up our game. Lisa Grow Sun and I discuss the implications in a new paper, but here are a few of the key takeaways.
Escalating impacts. From 1980 to 2020, there were an average of seven billion-dollar events per year. (Interestingly, nearly half of them were in Texas.) But from 2015-2020, the average was 16 per year. 2020 had a record-breaking 22 billion-dollar events. Why? It's partly higher GDP and population, so more people and wealth are at risk. More people and infrastructure are located in high-risk areas, especially coasts …
This post was originally published on Legal Planet. Reprinted with permission.
Some events last week sent a strong signal that the tide is turning against fossil fuels. Each of the events standing alone would have been noteworthy. The clustering of these events dramatizes an important shift.
To paraphrase Churchill, this may not be beginning of the end for fossil fuels, but at least it is the end of the beginning of the campaign against them.
Two of the events involved striking decisions in lawsuits in other countries involving fossil fuels. A federal court in Australia ruled that the government had a "duty of care" toward its young people to protect them from climate change. Accordingly, it could be found guilty of negligence if it failed to take their interests into account when considering a request to expand a coal mine. The court said that "it is difficult …
This post was originally published on Legal Planet. Reprinted with permission.
Lead can cause neurological damage to young children and developing fetuses. The only really safe level is zero. Because poor children are the most likely to be exposed to this hazard, this is also a major environmental justice issue.
The Trump EPA took the position that it could set a hazard level higher than zero because of the cost of reaching a lower threshold. In a split decision, the Ninth Circuit reversed. The statutory issues are complicated, and a dissent raised some reasonable arguments. Ultimately, though, it's hard to believe Congress wanted EPA to misrepresent that a certain level of lead is safe for children when it really isn't.
The case involved several types of regulations, but the most important dealt with levels of lead dust. The main way children are exposed to lead is by …
This post was originally published on Legal Planet. Republished with permission.
In its closing days, the Trump administration issued a rule designed to tilt EPA's cost-benefit analysis of air pollution regulations in favor of industry. Recently, the agency rescinded the rule. The rescission was no surprise, given that the criticisms of the Trump rule by economists as well as environmentalists. EPA's explanation for the rescission was illuminating, however. It sheds some important light on how the agency views the role of cost-benefit analysis in its decisions.
The Trump rule contained an industry wish list of provisions, all of them designed to make regulation more difficult. At the time, the provision that got the most attention related to co-benefits. Co-benefits are the beneficial side effects of a regulation. For example, a regulation designed to reduce mercury emissions from power plants also cut emissions of fine particulates, thereby saving …
