The Regulatory System Is an Important Part of Our Democracy. The 'Trump' Supreme Court Could Change That.
This is the first part of a two-post set. The second post is available here.
Last week, Matthew Yglesias published an important piece at Vox explaining the many ways conservatives have succeeded in exploiting fundamentally undemocratic features of our constitutional structure of government to advance their policy agenda. This strategy will have reached its grotesque culmination if they manage to seat Judge Amy Coney Barrett on the U.S. Supreme Court.
He’s rightfully angry about the situation – as should we all be – but the story he tells, thorough and infuriating as it is, misses an important point: It could actually get much worse. That’s because it's likely that Barrett will be a reliable vote in support of advancing the conservatives’ dream of stripping the U.S. regulatory system of its essential democratic features, transforming it into yet another vacuum cleaner with which the nation’s political and economic elites can suck up ever more wealth and power for themselves and away from the rest of us.
As Yglesias observes, the constitutionally prescribed methods for electing members of both chambers of Congress and the president allow for minority control. Indeed, this so-called “counter-majoritarian” design was intended as a feature …
Grappling with a contentious dispute over cross-state air pollution, Justice Ruth Bader Ginsburg, writing for the majority in Environmental Protection Agency v. EME Homer City Generation, first consulted the King James Bible. “‘The wind bloweth where it listeth, and thou hearest the sound thereof, but canst not tell whence it cometh, and whither it goeth,’ she wrote, “In crafting a solution to the problem of interstate air pollution, regulators must account for the vagaries of the wind.”
It was 2014, and at stake was a complicated, science-driven plan crafted by the EPA to limit air pollution that wafts from one state to endanger communities in another. The plan, which budgeted air emissions in certain states, promised to save thousands of lives and bring cleaner air to poor and minority neighborhoods. But in so doing, it would force several aging coal plants to close. Industry cried foul, saying …
An underappreciated side effect of the modern conservative movement now epitomized by Trumpism is its dogged pursuit of any legal argument to support “the cause,” no matter how ridiculous or specious. Long-settled questions like nondelegation and the constitutionality of independent regulatory agencies are suddenly, if bizarrely, up for grabs again. Add to this list a new line of argument – now germinating like a mushroom spore in horse manure – that posits that citizen suit provisions, such as those included in the Clean Air Act and Clean Water Act, are unconstitutional infringements upon the so-called unitary executive.
Earlier this month CPR Member Scholar Joel Mintz demolished this argument in a pair of posts published here. In this post, I want to move the ball forward and argue that citizen suits offer an essential opportunity for public engagement in regulatory implementation and thus should be extended universally across the entire …
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 op-ed was originally published by The Revelator. Reprinted under a Creative Commons license (CC BY-NC-ND 3.0).
The COVID-19 pandemic has ushered in a wave of worrisome and needless regulatory relaxations that have increased pollution across the United States. Recent reporting by the Associated Press and other outlets has documented more than 3,000 pandemic-based requests from polluters to state agencies and the U.S. Environmental Protection Agency for waivers of environmental requirements. Numerous state governments, with the tacit encouragement of the EPA, went along with many of those requests. All too often, those waivers — requested, ostensibly, to protect American workers from exposure to the coronavirus — were granted with little or no review, notwithstanding the risks the resulting emissions posed to public health and the environment.
EPA invited this wave of waivers back in March, announcing it would relax its enforcement upon request, under cover of …
This op-ed was originally published in The Regulatory Review. Reprinted with permission.
"I'm not convinced it's real. I think it's nothing more than the flu. If I die from the virus, it was just meant to be," Thomas Seale, an attendee at the Sturgis Motorcycle rally, reportedly said of COVID-19.
An estimated 460,000 people who love motorcycle culture and the company of like-minded people attended the huge rally in Sturgis, South Dakota, population 7,000, for 10 days in August 2020. They rode around, had races, attended bike shows and concerts, and drank beer. Face masks were rare.
People told New York Times reporter Mark Walker about the core importance of the event: they met their spouses at earlier rallies, referred to their fellow participants as family, or had attended the rally for decades. When asked about the pandemic, the attendees explained they were not …
This commentary is included in the September/October 2020 edition of "The Debate," a section of The Environmental Forum. It was originally published by the Environmental Law Institute and is reprinted here with permission.
As the country prays for relief from the global pandemic, what have we learned that could help us protect the environment better? Most alarming, I would argue, are COVID-19's revelations about the power of conspiracy theories and the antipathy they generate toward scientific experts.
Take "America's Doctor" and the dark rumors percolating on right-wing websites. Anthony Fauci is a "Deep-State Hillary Clinton-loving stooge." He was paid off to the tune of $100 million by Bill Gates, who has invested heavily in the development of vaccines for COVID-19 and corruptly opposes chloroquine, a life-saving cure. The genesis of the pandemic was a Chinese virology lab, where scientists deliberately created …
Writing in The Hill this week, CPR's Bill Buzbee and Mažeika Patricio Sullivan expand on a point they and their co-authors on an important article in Science magazine last month made ably: The Trump administration is running roughshod over science and law in its efforts to deregulate.
Their Science article focused on the administration's gutting of Obama era protections for the nation's waterways, and in particular, the ways EPA had ignored compelling scientific evidence of the harm their rule rewriting would do. In their new op-ed in The Hill, Buzbee and Sullivan lay out their case on waterways, and go on to observe that the administration took a similar science-blind, law-ignored approach in other recent rulemakings. They write:
This month’s methane rollback for the oil and gas sector similarly used questionable data and science, also raising new legal hurdles for future regulation. The Trump administration recently …
This commentary was originally published on The Regulatory Review. Reprinted with permission.
Throughout his time in office, President Donald J. Trump has boasted about cutting regulations.
His antagonism to environmental regulation has been particularly virulent and incessant. By one count, Trump Administration agencies have initiated or completed 100 environmental rollbacks. By thwarting often bipartisan legislative environmental protection goals adopted over the course of 50 years, President Trump's actions create serious threats to public health and environmental integrity. The Administration's suppression of public participation in regulatory decision-making has also undercut the ability of people and communities harmed by the Administration's deregulatory frenzy to protect themselves.
These anti-environmental and anti-democratic practices converged in the Administration's recent revisions to the Council on Environmental Quality's (CEQ) regulations implementing the National Environmental Policy Act (NEPA). Often referred to as the Magna Carta of U.S. environmental law, NEPA has two main goals …
This week, CPR is launching its Beyond 12866 initiative, an online platform focused on promoting a progressive vision for rebuilding the U.S. regulatory system. Such a regulatory system will be essential not only to achieving the progressive vision of a more just and equitable society; it will also do the heavy practical lifting needed for implementing key elements of a progressive policy agenda, such as the Green New Deal, Medicare for All, and Black Lives Matter movement.
This initiative begins from the recognition that in the near term, such progressive regulatory reform will need to be accomplished administratively, as opposed to legislatively, given the divisive politics of the issue and ongoing congressional dysfunction more generally. Using such administrative tools as executive orders and memoranda, the president in particular has considerable influence over how the regulatory system operates, and appropriately so given his (gendered language intended, unfortunately …
