If Confirmed, Kavanaugh Would Tilt Supreme Court against Public Protections
This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court.
Last night, President Donald Trump set the stage for a contentious debate about American social and economic welfare in the decades to come, nominating a Washington insider with a narrow worldview to the Supreme Court. Brett Kavanaugh's opinions on issues related to reproductive and civil rights are at the forefront of many voters' minds, but there's another danger that deserves just as much attention: What Kavanaugh would do on issues involving protections for consumers, workers, and the environment if confirmed by the Senate.
Trump and the current congressional majority are busy with their attempts at "deconstructing the administrative state." Kavanaugh might tip the balance in that direction on the Supreme Court, as well, particularly given his record of animosity against sensible safeguards during his time on the U.S. Court of Appeals for the D.C. Circuit. Without the judicial branch to act as a check on the more overtly political branches of our government, Kavanaugh may help usher in an era in which corporate profits are prioritized ahead of the stable climate, clean water, clean air, uncontaminated food, and …
When it comes to regulatory protections for health, safety, and the environment, the Small Business Administration (SBA) and its Office of Advocacy don't always put the public interest first. Falling in line with industry and small-government conservatives, it often opposes public protections, particularly where small businesses are concerned. So I was delighted to see a faint ray of sensibility peek through the SBA's usual anti-safeguard cloud last week when it issued a press release announcing its collaboration with a professional organization of accountants to help promote regulatory compliance assistance for small businesses.
The SBA is a government agency that helps support the formation and growth of small businesses in the United States, relying on various programs such as subsidized loans and government contracting preferences. The Office of Advocacy is a semi-autonomous bureau located within SBA that is charged with advocating for the interests of small businesses in …
Cross-posted from LegalPlanet.
In June, the Supreme Court decided two cases that could have significant implications for environmental law. The two cases may shed some light on the Court's current thinking about the Chevron doctrine. The opinions suggest that the Court may be heading in the direction of more rigorous review of interpretations of statutes by agencies like EPA and the SEC. That could be important as Trump's deregulatory actions start hitting the judicial docket. Thus, in the short-run, limiting Chevron could help check an out-of-control presidency. In the long run, however, it could also hinder progressive regulatory efforts.
As my wife reminds me from time to time, not everyone in the world spends their time on administrative law. So, before I get to that, I'll start with a quick review of the Chevron doctrine, partly drawn from earlier posts. If you don't need that, just skip …
UPDATE (July 2, 2018): EPA has granted a one-month extension to its original comment period. Public comments on the advance notice of proposed rulemaking are now due on August 13.
Soon after his confirmation, EPA Administrator Scott Pruitt quickly set out to take a "whack-a-mole" approach to advancing his anti-safeguard agenda, attacking particular rules designed to protect Americans and the environment from specific hazards – climate change, various air and water pollutants, and so on – one by one. But with his latest set of proposals, he's looking to recreate EPA in his own pro-polluter image by instituting extreme and systemic changes in how the agency does its work. The result would be a radically different EPA – one that puts corporate profits ahead of the public's well-being – with changes aimed at making it easier for the agency to undo a host of safeguards already in place while making it …
This morning, CPR Member Scholar and Vermont Law School Professor Laurie Ristino will testify at a hearing before the Subcommittee on Agriculture, Energy, and Trade of the House Small Business Committee. The majority's not-so-subtle objective for the hearing is to apply familiar conservative talking points against federal regulations to the specific context of small farms.
In contrast to the subcommittee majority's three witnesses, all of whom represent industry trade associations that have strongly criticized environmental and other regulations in the past, Ristino's testimony offers a fuller account of the relationship between regulatory safeguards and the economic health of small and mid-sized farms. Indeed, in her testimony, Ristino effectively makes the case that a robust system of environmental, food safety, and worker protections help to provide fertile ground in which small and mid-sized farms can thrive.
We can expect the majority and its three witnesses to spend much …
Originally published on The Regulatory Review. Reprinted with permission.
The U.S. Environmental Protection Agency (EPA) Administrator Scott Pruitt recently opened another front in his battle to redirect the agency away from its mission to protect human health and the environment. This time, he cobbled together a proposed rule that would drastically change how science is considered during the regulatory process.
Opposition soon mobilized. In addition to the traditional forces of public interest groups and other private-sector watchdogs, the editors of the most prominent scientific journals in the country raised the alarm and nearly 1,000 scientists signed a letter opposing the proposal.
This essay offers a contextual explanation of the reasons why scientists, who are typically loathe to enter the regulatory fray, are so alarmed.
In normal times, when agencies must evaluate the scientific evidence that informs a significant policy decision about health or environmental hazards …
Cross-posted from LegalPlanet.
The Trump administration is doing its best to wipe out Obama's regulatory legacy. How will the courts respond to such a radical policy change?
The philosophical clash between these last two presidents is especially stark, but this is far from being the first time that agencies have taken U-turns. This is the fifth time in the past 40 years that control of the White House has switched parties, with accompanying changes in regulatory approaches. Yet the underlying statutory framework in environment and energy law has not really changed that much, especially in the past 20 years. Thus, courts have repeatedly had to decide how much credence to give to an administrative position that reverses earlier policy.
This may seem a somewhat esoteric legal issue, but it is going to be crucial to how much Trump succeeds or fails in gutting environmental regulation. Here's what …
Originally published on The Regulatory Review. Reprinted with permission.
Since the Reagan administration, it has become commonplace for new presidential administrations, in one of their first official acts after inauguration, to freeze at least some pending regulatory actions of the prior administration. These freezes have been of varying breadth and have taken varying forms.
The Trump administration’s regulatory freeze was notable for its sweeping scope and blunderbuss execution. In the early months of President Donald J. Trump’s presidency, agencies delayed many dozens of final rules issued in the Obama administration, often with little explanation other than that a new President had been elected and he wanted the agencies to revisit existing regulations.
Before the Trump administration, there was surprisingly little law on agencies’ power to delay the effectiveness of final rules. A small cohort of judicial decisions came out of the Reagan years, and a …
Tuesday afternoon, three CPR Member Scholars – William Buzbee, Lisa Heinzerling, and Rena Steinzor – will be among the experts featured at a major symposium on the threats facing our system of regulatory safeguards. The symposium, The War on Regulation: Good for Corporations, Bad for the Public, was organized by the Coalition of Sensible Safeguards (CSS), which CPR co-leads as an executive committee member, and will include a keynote address from Sen. Elizabeth Warren (D-MA) and closing remarks from Maryland Attorney General Brian Frosh.
The goal of the symposium is to shine a spotlight on the concerted attacks being launched against our regulatory system during the Trump era, both from the Trump administration and conservatives in Congress. In addition to Senator Warren’s and Attorney General Frosh’s remarks, the War on Regulation symposium will include two panel-led discussions. The first will feature Professor Heinzerling and will examine the …
While most of the press EPA Administrator Scott Pruitt is getting these days has to do with his various over-spending scandals, his more lasting impact is likely to be his scorched-earth approach to environmental protections. In an op-ed in The Hill earlier this month, CPR’s Sid Shapiro highlighted one way Pruitt hopes to make an across-the-board, anti-environment impact: By limiting the scope of scientific studies that his agency may consider when developing safeguards.
Under the guise of greater transparency, Pruitt is proposing to restrict the use of studies for which the underlying data is not completely available to the public. That may sound reasonable on its face, but the reality is that plenty of important research and knowledge derives from studies for which some measure of confidentiality is a must. Medical studies typically protect the confidential information of participating patients, for example.
As Shapiro notes …
