Marginalized Groups and the Multiple Languages of Regulatory Decision-Making
This op-ed was originally published in The Regulatory Review. Reprinted with permission.
When it comes to historically marginalized groups, an “out of sight and out of mind” approach has too often infected agency policymaking. Agencies have responded with outreach to marginalized communities, but regulatory policymaking is hardly inclusive.
Last January, President Biden required the government to increase engagement “with community-based organizations and civil rights organizations,” and the Administrative Conference of the United States responded with a multiday forum on underserved communities and the regulatory process.
Addressing the lack of participation by marginalized communities in regulatory decision-making is crucial, but there is another fundamental issue. The input of marginalized communities will not matter if agencies ignore or devalue it because these insights are not expressed using the standard narratives of policymaking.
Bruce Williams and Albert R. Matheny identify three “languages” used in public policy debates: managerial, pluralist, and communitarian. The managerial perspective looks to an agency’s technocratic expertise to develop effective policies, while the pluralist perspective seeks to accommodate a balance of competing interests when determining policies. A communitarian perspective looks to the participation of citizens to express the values associated with the social, cultural, and historical contexts of a …
When the first person of color on the nation’s highest court retired three decades ago, the nation’s first female justice paid tribute to the invaluable experience he brought to what had been an exclusively white male institution.
“Although all of us come to the court with our own personal histories and experiences, Justice [Thurgood] Marshall brought a special perspective,” Justice Sandra Day O’Connor wrote in 1992 in the Stanford Law Review.
“At oral arguments and conference meetings, in opinions and dissents, Justice Marshall imparted not only his legal acumen but also his life experiences, constantly pushing and prodding us to respond not only to the persuasiveness of legal argument but also to the power of moral truth.”
Angela Onwuachi-Willig, the dean of Boston University’s law school, lifts up O’Connor’s insight in a recent letter in support of another legal pioneer: Judge …
Arguments and judicial reasoning in administrative law cases usually focus on the case at hand. Indeed, the Administrative Procedure Act (APA) commands that narrow focus. The APA does not give the courts any role in shaping the laws governing administrative agencies, for that is what Congress does. Instead, it gives the courts a modest, albeit difficult responsibility: They may determine whether a particular agency action is arbitrary and capricious or contrary to law. Therefore, parties challenging an agency rule they disapprove of generally argue that the agency has violated some restraint stated in the statute or exercised its discretion in an arbitrary way.
But in the U.S. Supreme Court case heard last week about the scope of EPA's authority to regulate greenhouse gas emissions (West Virginia v. EPA), coal companies relied heavily on a "parade of horribles" argument — a listing of bad things that …
This op-ed was originally published by Slate.
Last fall, on the same day that the parties to the Paris Agreement gathered in Glasgow for their first day of their annual international climate meeting, the U.S. Supreme Court announced it would review an appellate court decision about the U.S. Environmental Protection Agency's authority to regulate greenhouse gases from fossil fuel power plants under the Clean Air Act.
Fast forward half a year: On February 28, the day that the U.N. Intergovernmental Panel Climate Change issued its sobering report on climate adaptation and harms to human and planetary well-being, the court heard oral arguments in the case—West Virginia v. EPA.
Once again, it was a split-screen reality.
In reaction to the report, U.N. Secretary-General António Guterres stated, "Today's IPCC report is an atlas of human suffering and a damning indictment of failed climate leadership …
The National Labor Relations Act (NLRA) leaves no doubt about its purpose. Enacted in 1935, it was set against a backdrop of decades of intense and often violent labor strife. Recall the massacre of striking coal miners at Ludlow, Colorado (1914); the bloody Battle of Blair Mountain in West Virginia (1921), which pit miners against the militia; and the West Coast Longshoremen’s Strike (1934) over union representation, which revealed organized workers’ enormous power over the nation’s economy.
The NLRA was designed to minimize strife by requiring employers to recognize employees’ efforts to engage in “mutual aid and protection”; adjudicating conflict so as to avoid direct action; and, to quote from the act itself, by “encouraging practices fundamental to the friendly adjustment of industrial disputes … and by restoring equality of bargaining power between employers and employees.”
Employers, naturally, prefer to deal with their workers one on …
Imagine you're in the market for a new furnace. You decide to buy a more fuel-efficient system — even though the price tag is higher — because it will lower your monthly heating bills. Another selling point: The fuel-efficient furnace emits less carbon into the atmosphere — a benefit you can't quite quantify but that you value nonetheless for its small salubrious effect on the planet.
Policymakers go through a similar — though much more complex — process when implementing laws. But an obscure federal mandate known as cost-benefit analysis renders them unable to fully account for costs and benefits that are difficult to measure in dollars and cents, like the large-scale value to society of federal rules that protect public and environmental health.
Despite its name, a true analysis of a rule's full benefits is impossible.
I mean, really: How can public officials put a price on a stable climate or …
This post was originally published on Legal Planet. Reprinted with permission.
The environmental justice movement began with a focus on neighborhood struggles against toxic waste facilities and other local pollution sources. That focus now includes other measures to ensure that vulnerable communities get the benefit of climate regulations. The most powerful tool for assisting those communities, however, may be the National Ambient Air Quality Standards (NAAQS). The NAAQS (pronounced "knacks") are supposed to be the maximum amount of air pollution consistent with protection of public health and welfare.
Air pollution is the biggest threat to low-income communities and communities of color. As the American Lung Association has said:
- "The burden of air pollution is not evenly shared. Poorer people and some racial and ethnic groups are among those who often face higher exposure to pollutants and who may experience greater responses to such pollution. Many studies have …
This op-ed was originally published in The American Prospect.
After the Supreme Court’s decision last month rejecting the Biden vaccine mandate for large employers, it wasn’t just the public health community that was asking “where do we go from here?” Environmental activists and attorneys immediately recognized that the Court’s reasoning in the vaccine case, National Federation of Independent Business v. Department of Labor, will likely lead to a win for the fossil fuel industry in the biggest environmental case of this term, West Virginia v. EPA.
On the surface, the vaccine case and West Virginia appear to involve totally different issues. NFIB was a challenge to an emergency regulation from the Occupational Safety and Health Administration (OSHA) that required large employers to either verify COVID-19 vaccinations or compel their employees to wear masks and get tested. In a 6-3 decision, with the three liberals …
This op-ed was originally published in The Hill.
In its first year in office, the Biden administration has, to its credit, reversed a number of anti-environmental policies initiated by former President Donald Trump.
Gone is the previous administration's infamous "two-for-one" policy, under which federal agencies had to eliminate two regulatory requirements for every new regulation they proposed. Numerous Trump-era initiatives that cut back needed air and water quality protections have also been rescinded. And, thankfully, the U.S. Environmental Protection Agency (EPA) and other federal agencies are once again focused on responding to the mounting dangers posed by the climate crisis.
Given these steps forward, it is perplexing that the current administration has not yet restored a critical environmental tool that has proven workable and highly beneficial in past years: EPA's Supplemental Environmental Projects (SEPs).
Top photo by the Natural …
A native of southeast Los Angeles, Laura Cortez was exposed to a heavy dose of toxic pollution as a child. She grew up near an oil refinery, industry warehouses, and railroad tracks, with trains barreling through at all hours of the night. Her elementary school was located near a major highway — a passthrough for tens of thousands of trucks every day — and her high school was also sited next to train tracks.
Now co-executive director of East Yard Communities for Environmental Justice, a grassroots advocacy group, Cortez is working to protect residents of her community and others in the region from the harmful effects of pollution on health and well-being. She shared her story last week with members of Congress to call attention to environmental racism and build support for landmark legislation that would begin to address it.
“My reality is not an exception,” she told members …
