Rethinking Presidential Administration
This post was originally published on Legal Planet. Reprinted with permission.
Conservatives love to complain about faceless bureaucrats, but blaming bureaucrats for regulations is hopelessly out of date. When Elena Kagan was a professor, she wrote an article called “Presidential Administration.” The article applauded her former boss Bill Clinton for seizing greater control of the regulatory process, away from agencies. That trend has accelerated to the point where the White House controls even the fine details of regulation.
Two things can get sidelined in presidential administration. One is agency expertise. No one in the White House has as much knowledge as agency experts about air pollution, or climate change, or endangered species.
The other thing that gets sidelined is active implementation of the law actually passed by Congress. The White House staff who review regulations care only about costs and benefits. The president and the higher-level staff care only about the president’s policy and political agendas. From their perspective, the law actually passed by Congress only matters to the extent it might let courts get in the way of those other agendas. Only the agency itself has an affirmative institutional commitment to the statute it administers.
Kagan admitted in …
This post was originally published on Legal Planet. Reprinted with permission.
Donald Trump's hostility domestic environmental regulation is notorious. He also stalled or backpedaled on the international front. Here are seven steps that President Biden could take to remedy the situation.
- Rejoin the Paris Agreement. The U.S. needs to immediately rejoin the Paris Agreement. It also needs to update its climate target because we can do a lot more than we thought possible even four years ago to reduce emissions. Technology has improved, renewable prices have fallen, and the car industry is prepared to embrace electric vehicles.
- Rejoin the WHO. Leaving the World Health Organization (WHO) in the middle of a pandemic was crazy for many reasons — among them, its effect on the environment. As I wrote in a post at the time, WHO does important work in many countries on controlling dangerous levels of air …
This post was originally published on Legal Planet. Reprinted with permission.
Donald Trump prided himself on his contempt for established norms of presidential action. Whole books have been written about how to restore those norms. Something similar also happened deeper down in the government, out in the agencies like the U.S. Environmental Protection Agency (EPA) that do the actual work of governance. Trump appointees have corrupted agencies and trashed the norms that support agency integrity. It will take hard work to undo the harm. White House leadership is important, but success will require dedicated effort by the agency heads appointed by Biden.
Scientific integrity. The role of science is the most obvious example of norm busting under Trump. Whether it is EPA, the National Oceanic and Atmospheric Administration (NOAA), the Food and Drug Administration (FDA), or the Centers for Disease Control and Prevention (CDC), the Trump …
This post was originally published on Legal Planet. Reprinted with permission.
A recent Ninth Circuit ruling overturned approval of offshore drilling in the Arctic. The ruling may directly impact the Trump administration's plans for oil leasing in the Arctic National Wildlife Refuge (ANWR). By requiring agencies to consider emissions when fossil fuels are ultimately burned, the Court of Appeals' decision may also change the way agencies consider other fossil fuel projects, such as gas pipelines.
In Center for Biological Diversity v. Bernhardt, environmental groups challenged the Interior Department's approval of an offshore drilling and production facility on the north coast of Alaska. In its environmental impact statement, the agency refused to consider the effects of the project on carbon emissions outside the United States.
On its face, as the court was quick to point out, the agency's position makes no sense. It's like assuming that if you …
This post was originally published on Legal Planet. Reprinted with permission.
Without a Democratic majority in the Senate, President Biden will have to rely on administrative action to do the heavy lifting. It's clear that EPA has a central role to play in climate policy, but EPA does not stand alone. Other agencies also have important roles to play. Fortunately, the Biden transition team seems to have come to this realization.
A multi-agency approach is especially important because bold actions by EPA will face a skeptical audience in the 6-3 conservative Supreme Court. Thus, a diverse portfolio with many different actions from many agencies is prudent. Moreover, EPA is much more in the political spotlight, so any bold action on its part is sure to be met with a political firestorm. Other agencies may fly more under the radar.
The final reason for multi-agency action is that …
This post was originally published on Legal Planet. Reprinted with permission.
With Sen. Mitt Romney’s announcement this morning that he would support consideration of a nominee before the election, it now seems virtually certain that President Trump will be able to appoint a sixth conservative justice. How will that affect future climate policy? Here is a preliminary threat assessment.
The answer varies, depending on what policies we’re talking about. Overall, the implications of a 6-3 Court are bad. But they’re probably not as dire for environmental law as for other issues like racial equality or reproductive rights.
As a quick preliminary take on this, I’ll sort heightened legal risks of climate actions into high, medium, low, and wildcard. The wildcard risks actually worry me the most.
High Risk
Innovative regulations like Obama’s Clean Power Plan. Regulations by EPA that use existing statutory …
This post was originally published on Legal Planet. Reprinted with permission.
The response to the COVID-19 pandemic has driven home some lessons about governance. Those lessons have broader application — for instance, to climate governance. We can't afford for the federal government to flunk Crisis Management 101 again.
Here are five key lessons:
- Effective leadership from the top is indispensable. Major problems require action by multiple federal agencies. These agencies need help coordinating; they may also need to be pushed into changing priorities and revamping procedures to deal with a major new issue. This is going to be very much true of climate policy. The trick is to provide leadership without hampering front-line agencies.
- Agency expertise is also indispensable. We've seen how decision-making in the White House has too often ignored the expertise of public health experts. The result is bad policy. Trump is extreme in this …
Originally published on Legal Planet. Reprinted with permission.
On June 16, the D.C. Circuit Court of Appeals decided two cases that add to the legal difficulties the Trump EPA will face in court. The difficulties relate to two proposed EPA rules that attempt to hamstring future efforts to impose tighter restrictions on pollution. Both EPA rules rely on vague, general grants of rulemaking authority from Congress. That just became more tenuous.
One of the EPA proposals is the so-called "science transparency rule," which is perversely designed to limit EPA's future ability to utilize well-regarded scientific studies. The other proposal will reduce the agency's flexibility in conducting cost-benefit analysis of future regulations.
In attempting to find legal authority for these rules, EPA has looked to general grants of rulemaking authority. One such law is the Federal Housekeeping Act. That law (which may not actually apply to …
Originally published on Legal Planet. Reprinted with permission.
Sen. Mitch McConnell is demanding that any future coronavirus relief law provide a litigation shield for businesses, and other conservative and business interests have made similar proposals. So far, the supporters of these proposals have engaged in some dramatic handwaving but haven't begun to make a reasoned argument in support of a litigation shield.
In this post, I'm going to limit myself to negligence suits against businesses. Basically, these lawsuits claim the plaintiff got the virus due to the failure of a business to take reasonable safety precautions.
Even without a business shield, these are not going to be easy cases to win. Plaintiffs will have to show that they were exposed to the virus due to the defendant's business operation, that better precautions would have prevented the exposure, and that they weren't exposed elsewhere.
Tort lawyers may be …
Originally published on Legal Planet. Reprinted with permission.
If we get a vaccine against a national epidemic, could Congress pass a law requiring everyone to get vaccinated? That very question was asked during the Supreme Court argument in the 2012 constitutional challenge to Obamacare’s individual mandate. The lawyer challenging Obamacare said, “No, Congress couldn’t do that.”
What’s shocking is that this may have been the correct answer. Conservatives on the Supreme Court have curtailed Congress’s ability to legislate about anything other than economic transactions, and an epidemic is not an economic transaction.
The 2012 oral argument in the Supreme Court
JUSTICE BREYER: I’m just picking on something. I’d like to just — if it turned out there was some terrible epidemic sweeping the United States, and we couldn’t say that more than 40 or 50 percent . . . — you’d say the Federal …
