The Coming Decline of Anti-Regulatory Conservatism
Originally published by The Regulatory Review. Reprinted with permission.
When it comes to the need for federal regulation, the American political system is currently deeply divided along ideological and partisan lines. This division has a number of causes, but a good part of the division can unquestionably be attributed to what Professor Thomas McGarity has referred to as the anti-regulatory "idea infrastructure" and the "influence infrastructure" constructed by conservatives in the early 1970s and continued thereafter—ideas intended to block and roll back public protections along with tactics for implementing those anti-regulatory ideas.
That conservative effort has succeeded for many years, but the country has paid a steep price in terms of increased risks from the unbridled pursuit of profit. The 2018 congressional election may portend a looming backlash against the political right, with its own intransigent opposition to common sense public protections leading to its demise.
A particularly influential intellectual component of the conservative idea infrastructure was an August 1971 memorandum that sprang from a surprising source: soon-to-be Supreme Court Justice Lewis Powell, Jr. At the time, Powell was a prominent corporate lawyer and a member of many corporate boards. His memo to his friend, Eugene Sydnor, Jr., Chairman …
Originally published on Legal Planet
There's already been a lot written in the aftermath of Justice Stevens's death, including Ann Carlson's excellent Legal Planet post earlier this week. I'd like to add something about an aspect of his jurisprudence that had great relevance to environmental law: his belief in the rule of law, and specifically, in the duty of both the judiciary and the executive branch to respect and implement congressional mandates.
This stance was evident in Justice Stevens's decision in Massachusetts v. EPA, probably the most important environmental case that Supreme Court has ever decided. The Bush administration refused to regulate greenhouse gases under the Clean Air Act. But the statute was very clear. It defined air pollutants as any substance emitted into the air, and it required regulation of such pollutants whenever they endanger human health or welfare. The Bush administration also argued that international …
This op-ed was originally published in The Hill.
In a recent speech, President Trump touted what he described as "America's environmental leadership" during his presidency. He claimed that over the past two-and-a-half years, his administration has been "a good steward of public land," reduced emissions of greenhouse gases, and successfully promoted clean air and water.
His claims are Orwellian in scope and mendacity. Even the most cursory examination of the Trump administration's environmental record reveals an appalling litany of irresponsible, anti-environmental actions.
On the existential issue of global climate change, Trump's actions have made the United States anything but an environmental leader. His decision to abandon the Paris Agreement — a promising beginning to international action to curb greenhouse gas emissions — made the United States the only nation on the planet not currently committed to achieving the accord's goals.
What progress we've made as a nation reducing …
Originally published on Legal Planet
Mississippi recently passed a law that has the effect of banning terms like "veggie burger." It's easy to imagine other states passing similar laws. From an environmental view, that's problematic, because beef in particular is connected with much higher greenhouse gas emissions than plant products. It's not just the methane from cow-burps, it's also all the carbon emissions connected with growing corn to feed the cattle. But in addition to its environmental drawbacks, the Mississippi law is subject to severe constitutional problems.
I had to do a little digging to find the law itself. It's an amendment to a law requiring truthful labeling of meat products. It reads as follows: "A food product that contains cultured animal tissue produced from animal cell cultures outside of the organism from which it is derived shall not be labeled as meat or a meat …
High hopes that putting a price on carbon emissions would provide the most effective and politically expedient climate change policy keep getting dashed. In June, Oregon's Republican senators fled the state and hid rather than enact a carbon cap-and-trade program. Washington State citizen initiatives to pass a carbon tax have failed – twice. Even in progressive California, efforts to include a cap-and-trade program in the state's initial climate legislation failed; cap-and-trade came later, administratively rather than legislatively, and as part of a larger plan.
Carbon pricing has an important role to play and should be a part of any comprehensive climate strategy. However, as I argue in a new CPR Issue Brief, Carbon Pricing: Essential But Insufficient, carbon pricing will not solve the climate crisis. Pricing alone is unlikely to be fully effective, would sacrifice core democratic values, and, as we've seen, may be less politically viable than …
Asunción Valdivia, a 53-year old father and farmworker at a Giumarra vineyard in California, died after laboring to pick grapes for ten straight hours in 105-degree heat. When he collapsed, his employer told Valdivia’s son, Luis, who was also working in the field, to drive him to the hospital, but Valdivia died before they arrived.
In Valdivia’s memory, on July 10, Reps. Judy Chu and Raúl Grijalva paved the way to protecting outdoor and indoor workers across the nation from extreme heat by introducing the Asunción Valdivia Heat Illness and Fatality Prevention Act (H.R. 3668).
Valdivia is among 815 workers who died on the job because of extreme heat between 1992 and 2017, based on cases documented by the Bureau of Labor Statistics. Tens of thousands more workers have suffered illnesses and injuries from exposure to excessive heat. Extreme heat poses the greatest risk …
Originally published by The George Washington Law Review. Reprinted with permission.
Imagine a world in which administrative agencies whose actions are challenged in court are afforded little respect and even less deference from reviewing courts. Imagine further that congressional efforts to vest authority in these agencies to act as guardians of public health and safety, environmental integrity, consumer interests, and economic security are viewed as alarming threats to liberty and to the very foundations of the separation of governmental authority enshrined in the Constitution. Finally, imagine a jurisprudence in which judges are committed to fashioning (or refashioning) administrative law doctrine to shackle the authority of agencies to which Congress has delegated regulatory authority at every opportunity. That is the world to which some members of the Supreme Court appear to aspire.1
In the waning days of the Supreme Court’s 2018–2019 term, a four-Justice plurality …
Originally published on Legal Planet.
The Supreme Court’s recent opinion in Kisor v. Wilkie was eagerly awaited by administrative law experts. It is one skirmish in the ongoing war over deference to agencies. In this case, the issue was whether to overrule the Auer doctrine, which requires courts to defer to an agency’s reasonable interpretation of its own regulations. This doctrine, like its big brother, the Chevron doctrine, has become a target for conservative scholars and judges. The Auer doctrine has obvious relevance to environmental law, where agencies like EPA frequently have to interpret their own regulations in making decisions about permits or enforcement.
Kisor v. Wilkie seems like an unpromising vehicle for a major Supreme Court opinion. The case involves a mundane dispute over the start date for a combat veteran’s claim for compensation for his PTSD. The facts are explained in detail …
Last night, CPR Member Scholar Amy Sinden and I published an op-ed in The Hill explaining the dangers of a new rulemaking recently launched by Environmental Protection Agency (EPA) Administrator Andrew Wheeler and former air office Assistant Administrator Bill Wehrum. Through this rulemaking, Wheeler and Wehrum – both former industry lobbyists – will kick off the EPA's agency-wide effort to overhaul how it conducts cost-benefit analysis for its pending rules to ensure that this methodology remains heavily biased in favor polluters at the expense of people and our environment.
As the op-ed explains, cost-benefit analysis was always meant to provide industry with a powerful trump card in the rulemaking process. Industry expected its methodologies – while masquerading as objective and rational – would systematically favor weaker or no regulations. By and large, that held true for the nearly 40 years that cost-benefit analysis has ruled regulatory decision-making. But in the environmental …
Originally published on Legal Planet.
In a recent decision, four of the conservative Supreme Court Justices indicated a desire to limit the amount of discretion that Congress can give administrative agencies. If taken literally, some of the language they used would hobble the government by restricting agencies like EPA to "filling in the details" or making purely factual determinations. Some observers have feared that the conservatives were on the verge of dismantling modern administrative law. As I indicated in a blog post on Thursday, I think this is something of an overreaction.
As it happens, later that same day, the Supreme Court gave another signal that it is happy to allow a great deal of administrative discretion. The issue in the census case (Dept. of Commerce v. New York) was whether it was legal for the Commerce Secretary to add a question about citizenship to the census …
