Do Not Blame Us
This op-ed was originally published by The Regulatory Review. Reprinted with permission.
Law professors dream of the day when the U.S. Supreme Court will rely on one of their publications for a proposition that is crucial to the outcome of an important case. What better validation of all the blood, sweat, and tears that were poured into the publication? What a surge of power to discover that their work has had an impact, if only in the context of a single lawsuit. What an existential high to know that they have finally arrived at the pinnacle.
We experienced none of those emotions when reading Chief Justice John Roberts' opinion in West Virginia v. EPA. The citations to our work were both minor and innocuous, so that fact helps allay any sense of accomplishment. But equally significant, the Court's analysis bears little relationship to our own understanding of Section 111(a) of the Clean Air Act.
In West Virginia v. EPA, the Court held that the U.S. Environmental Protection Agency (EPA) was powerless to bring about a reduction in greenhouse gas emissions from coal-fired power plants by inducing them to shift electrical generating capacity from dirty coal-fired plants to …
The U.S. Supreme Court's upcoming ruling on the U.S. Environmental Protection Agency's power to regulate greenhouse gases from coal-fired power plants offers an unwelcome opportunity for its conservative majority to advance the former Trump administration's goal of "deconstructing the administrative state."
The vehicle for advancing the Trump agenda is the obscure "major questions" doctrine, under which the Court insists that congressional delegations of power to regulatory agencies must be made with pinpoint precision on questions of "vast economic and political significance."
The Court invented the major questions doctrine about 20 years ago in a case involving the U.S. Food and Drug Administration's authority to regulate cigarettes, but it had used it only very rarely to overturn agency actions until Democratic presidents began to write regulations that aggressively protected public health, worker safety, and the environment.
The doctrine is at the heart of …
Governments and industries are "reopening" the economy while COVID-19 continues to rage across the United States. At the same time, the lack of effective, enforceable workplace health and safety standards puts workers and the general public at heightened risk of contracting the deadly virus. In a new report from the Center for Progressive Reform, Sidney Shapiro, Michael Duff, and I examine the threats, highlight industries at greatest risk, and offer recommendations to federal and state governments to better protect workers and the public.
In many essential industries, the coronavirus risk is particularly acute because of the nature of the work and of the workplaces in which it is conducted. The lack of enforceable, pandemic-specific protections for workers and the hodgepodge of industry responses heighten this danger to workers. Industries affected range from health care to meatpacking, transportation to warehousing.
Heaping injustice on top of danger, coronavirus-related hazards …
Staff and Board members of the Center for Progressive Reform (CPR) denounce the murder of George Floyd by Minneapolis police officer Derek Chauvin on Memorial Day. We stand with the peaceful protestors calling for radical, systemic reforms to root out racism from our society and all levels of our governing institutions and the policies they administer.
CPR Member Scholars and staff are dedicated to listening to and working alongside Black communities and non-Black people of color to call out racism and injustice and demand immediate and long-lasting change. Racism and bigotry cannot continue in the United States if our nation is to live up to its creed of life, liberty, and the pursuit of happiness for all.
CPR's vision is thriving communities and a resilient planet. That ideal animates all of our work, but systemic sources of inequality and injustice stand as massive barriers to the realization …
Over the last month, the scripts of the daily White House COVID-19 briefings have followed a familiar pattern: President Trump leads off with assurances that the crisis remains “totally under control” and that miracle cures are just around the corner. Then agency experts come to the microphone and tell a very different story.
For example, on March 19, the president reported that the Food and Drug Administration (FDA) “very, very quickly” approved a malaria drug, hydroxychloroquine, for treating COVID-19 that it had previously approved for lupus, malaria, and rheumatoid arthritis. Later in the briefing, Dr. Anthony Fauci, the long-time head of the National Institute for Allergy and Infectious Diseases, cautioned listeners that controlled testing would have to be completed before we know whether the drug works on the novel coronavirus. And FDA later warned that it had definitely not approved hydroxychloroquine for fighting the virus.
The warnings …
In response to this month's mass shootings in El Paso, Texas, and Dayton, Ohio, President Donald Trump urged legislators to enact "red flag" laws to prevent future tragedies. Red flag laws allow police or family members to seek court orders (sometimes called "extreme risk protection orders") that temporarily remove firearms from individuals who present a danger to themselves or others. But do these laws and regulations distract from the larger point about gun violence and mass shootings in the United States?
Trump urged lawmakers to "make sure that those judged to pose a grave risk to public safety do not have access to firearms and that if they do those firearms can be taken through rapid due process." On first hearing, this sounds like a call for the government to protect the public from potentially dangerous individuals. But don't be deceived. The president doesn't really want …
Although Workers' Memorial Day was officially April 28, the time has not passed for remembering the thousands of friends, family members, and neighbors whose lives were tragically cut short due to fatal on-the-job incidents this past year. We carry on their memories as we renew the fight for healthy and safe working conditions.
On average, 5,320 workers die on the job every year. In 2017, the latest year for which data is available, the death toll was 5,147. These figures do not account for the estimated 50,000 workers who succumbed to occupational diseases caused by chronic exposures to toxic chemicals and other harmful substances they encountered in their workplaces.
Every day across the nation, salon workers are exposed to toxic chemicals like toluene and formaldehyde in nail polish and hair dyes, construction workers inhale asbestos during home renovations and silica during sandblasting, and janitorial …
This commentary was originally published by The American Prospect.
Most of us take for granted the federal regulations that make our air cleaner, our drinking water purer, our food, highways, and workplaces safer, and our economic transactions less vulnerable to fraud and abuse. And few of us realize the extent to which those protections are subject to reversal by federal courts applying legal principles prescribed by the Supreme Court. If confirmed to the Supreme Court, Judge Brett Kavanaugh would be a fervent vote against even well-established forms of regulation.
A telling example of Kavanaugh’s ideological aversion to even minimal government regulation is his dissent in a case in which the Occupational Safety and Health Administration (OSHA) fined SeaWorld of Florida following a tragic incident at its Orlando facility in which a killer whale named Tilikum pulled a trainer off a platform and held her underwater until …
Earlier this week, the Consumer Financial Protection Bureau (CFPB) took decisive action to protect hardworking people who are cheated by banks or other financial institutions. Specifically, the federal agency issued a rule limiting what are known as "forced arbitration" agreements in the contracts we must all sign when we open a bank account or purchase certain kinds of financial products and services. Last year, scholars and staff at the Center for Progressive Reform authored a report that supported CFPB's efforts and asked the agency to adopt an even stronger set of protections for consumers. Although the agency did not adopt the stronger provisions, the final rule nevertheless offers crucial protections for American consumers. We are therefore concerned about the rule's ultimate fate in the courts and in Congress.
Unbeknownst to most Americans, nearly all financial contracts include a clause that requires them to enter into …
We are about to experience a fifth major assault on the health, safety, environmental, and consumer protections that Congress put in place during the 1960s and 1970s, protections that most of us take for granted. And all indications are that this assault will be more intense and more comprehensive than any of the prior assaults on the governmental protections that shield our families and communities from the ravages of an unfettered free market.
In my 2013 book, Freedom to Harm, I documented the first four assaults on federal regulatory protections by a dedicated group of trade associations, corporate lobbyists, think tanks, conservative foundations, and activist groups who were determined to return the American political economy to the laissez-faire benchmark of the late 19th century Gilded Age.
The First Assault began during the last two years of the Carter administration and lasted well into the Reagan administration. Because …
