This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US).

The Supreme Court heard oral argument yesterday morning in Virginia Uranium Inc. v. Warren, which concerns the largest uranium deposit in the United States, located in south-central Virginia. The petitioners are owners of the deposit who wish to mine uranium, and they are challenging a 1983 statute by which the Virginia General Assembly imposed a moratorium on uranium mining. Although all parties agree that uranium mining is a matter for state regulation, the owners contend that the moratorium was impermissibly intended to regulate radiation safety associated with uranium milling and tailings management — a field pre-empted by the Atomic Energy Act. The case therefore raises questions about the extent to which a state legislature's motives are relevant to deciding whether the state statute is pre-empted.

Arguing for …

The newest dangerous proposal filtering through Congress is H.R. 2887, the "No Regulation Without Representation Act of 2017." Packaged as a prohibition on states regulating outside of their borders, the bill is a Trojan horse that usurps the states' role in the federal system and threatens their ability to protect their own citizens from harm. The House Committee on the Judiciary's Subcommittee on Regulatory Reform, Commercial and Antitrust Law is taking up the bill in a hearing today, July 25, and Center for Progressive Reform Member Scholars have submitted a letter opposing the bill. 

Poor drafting obscures impact 

The bill itself is challenging to read. It is poorly drafted and hides its true impact behind generic terminology and rabbit-hole definitions. Here is a summary of the key language – after which a concrete example helps demonstrate its meaning. 

The bill contains a prohibition: states may not …

Donald Trump's anti-climate action executive order is, as CPR President Rob Verchick puts it, a classic act of bullying. As I describe in an annotated version of the order, it is also irrational, failing to achieve the very aims it purports to support while inflicting damage to our climate, environment, natural resources, wildlife, and yes – even our coal miners. 

In the annotation, I walk through each section of the order, providing an analysis and commentary on just what it does and doesn't do. At bottom, it steps us back to the dark ages of energy and environmental policy. As the agencies struggle to implement the new policies against a record of scientific consensus and ever-growing examples of the costs of climate change, the role of citizens and watchdog groups will become increasingly important. It's time to roll up our sleeves, dig into the administrative process, and do …

Last week, the D.C. Circuit heard oral argument on a highly unusual attempt to short-circuit EPA’s rulemaking process for greenhouse gas regulation of existing power plants.  Despite statutory and constitutional hurdles to premature litigation, the petitioners—the coal-fired industry and coal-producing states—argued that the importance of the proposed rule justifies court intervention.

The rule’s importance is precisely why it is critical that the agency complete the administrative process.

That industry groups will file lawsuits over EPA’s greenhouse gas initiatives is unremarkable.  After all, litigation is to be expected:  frequently, both the regulated community and public interest groups challenge major environmental rules.  Nor is it unusual that interested parties may attempt to hijack a regulatory policy before a rule is finalized.  Scholars have documented (for example, here, here, and here) the many contacts between agencies and regulated industries that occur at various stages …

The coal-fired power plant industry has always fought air-emissions standards enacted pursuant to the Clean Air Act (CAA).  But the industry has increasingly raised the specter of reliability problems, arguing that EPA’s recent “tsunami” of regulations will cause a “train wreck,” forcing companies to retire aging plants so rapidly that lost capacity will outpace the development of new sources.  The result, they maintain, will be such an unmanageable strain on the regional grids that they will have to impose brownouts and blackouts as a consequence.   

The overheated rhetoric of reliability threatens to overwhelm and run aground meaningful debate about environmental regulation, climate change, and the appropriate mix of fuels for generating electricity.  There is no doubt that reliability is a critical concern—but it is being misused to obscure the fact that many updates to our power supply are necessary, achievable, and taking place already as …

The proposed Independent Agency Regulatory Analysis Act, S. 3468, is a troubling idea. As Rena Steinzor explained here when the bill was introduced, it would authorize the President to bring independent agencies under the purview of OIRA.  This proposal is worrisome given the persistent flaws inherent in OIRA’s cost-benefit approach; extending the reach of a poorly functioning process is hard to justify.  But even more problematic is where S. 3468 treads:  the domain of independent agencies.  This development calls for thoughtful attention to the reasons for independence in the first place.

The fundamental difference between executive and independent agencies lies in the degree to which each is insulated from presidential control.  For example, executive agencies are typically headed by individuals who serve at the will of the President—but independent agencies are governed by multi-member commissions who are removable only for cause.  While executive heads are …