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 …

This post was originally published by Legal Planet. Reprinted with permission.

In West Virginia v. EPA, the U.S. Supreme Court is reviewing former President Obama’s Clean Power Plan. The Clean Power Plan (CPP) itself no longer has any practical relevance, but there’s every reason to predict the Court will strike it down. The big question is what the Biden administration should do next. That depends on the breadth of the Court’s opinion.

The Clean Power Plan was the centerpiece of the Obama administration’s climate policy. It had three pillars: (1) reductions in emissions from coal-fired power plants; (2) shifts by the owners of coal plants to gas and renewables, and of gas-fired plants to renewables; (3) shifts by states toward the same kinds of shifts for their overall power mixes.

The Clean Power Plan has no practical significance today: the deadlines in …

This blog post is the third in a series outlining the Center for Progressive Reform's strategic direction. We previously published "Strengthening the 4th Branch of Government" and "A Turning Point on Climate."

I'm hopeful the recent disco revival won't last but that other resurging movements of the 1960s and '70s will. That era saw the birth and explosive growth of the modern environmental movement alongside other sweeping actions for peace and equality.

Public pressure led to critical environmental laws that continue to protect our natural resources and our health and safety. In 1970, Congress created the U.S. Environmental Protection Agency and enacted the Clean Air Act, which authorizes the federal government to limit air pollution, and the Occupational Safety and Health Act, which established the first nationwide program to protect workers from on-the-job harm. Two years later came passage of the Clean …

In addition to cleaning up our environment, the U.S. Environmental Protection Agency (EPA) must also clean up the mess the Trump administration left behind.

The Biden EPA recently took an important step in this direction by finalizing its plan to rescind a Trump-era rule that would drastically overhaul how it analyzes the rules it develops to implement the Clean Air Act. If implemented, Trump's "benefits-busting" rule would have sabotaged the effective and timely implementation of this popular and essential law, which protects the public from dangerous pollution that worsens asthma and causes other diseases. The rescission is slated to take effect next week.

On June 9, the EPA held a public hearing to gather feedback on rescinding the rule, which CPR has been tracking for several years. CPR Member Scholars Rebecca Bratspies and Amy Sinden joined me in testifying in support.

A New and Better Approach …

This post was originally published on Legal Planet. Reprinted with permission.

Last Friday, the Second Circuit Court of Appeals issued an important decision in a lawsuit against the oil industry. New York City had sued oil companies for harms relating to climate change. The appeals court ordered the case dismissed, on the ground that any harm relating to fossil fuels is exclusively regulated by the Clean Air Act. The ruling is a setback for the plaintiffs in similar cases, though how much of a setback remains to be seen.

The court's analysis is complicated and involves some fairly esoteric legal arguments. I'll try to avoid the fine points. In the end, the court's argument comes down to two points. The first point relates to fuels used in the United States. The court argues that by authorizing EPA to regulate carbon emissions, the Clean Air Act indirectly eliminates …

This post was originally published on Legal Planet. Reprinted with permission.

Coal- and gas-fired power plants are a major source of U.S. carbon emissions. The Obama administration devised a perfectly sensible, moderate policy to cut those emissions. The Trump administration replaced it with a ridiculous token policy. The D.C. Circuit appeals court tossed that out. Now what?

It wouldn't be hard to redo the Obama policy based on all the changes in the power industry since he left office, which would result in much more rigorous emissions controls. The problem is that the ultra-conservative majority on the U.S. Supreme Court is likely to be very skeptical of the legal basis of any plan that, like Obama's, requires states to expand use of renewable energy.

Opponents of Obama's plan made two legal arguments, which both came up again in the litigation over the Trump rule …

This post was originally published by the Yale Journal on Regulation's Notice & Comment blog. Reprinted with permission.

T’was the season of gift-giving and on December 9, outgoing EPA Administrator Andrew Wheeler delivered a parting gift for his successor in the form of a new regulation: Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process.

The new Rule is offered as a simple housekeeping measure designed “to ensure consistent, high-quality analyses [and to] codif[y] best practices for benefit-cost analysis in rulemaking.” Some observers find it relatively harmless; but others are not so sanguine. We view it as a sort of Trojan Horse—seemingly innocuous on its face, but harboring content that will hamper, and may undermine, EPA’s efforts to confront the climate crisis and protect the safety of the air we breathe. Here are a few …

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 is the second post of a two-part set. Click to read Part I.

As I noted in a previous post, the pending case of United States v. DTE Energy, Inc. tacitly raises issues concerning the constitutionality of both Supplemental Environmental Projects (SEPs) and the citizen suit provisions of environmental laws. This second post considers another constitutional issue that may emerge in the DTE Energy litigation: whether SEP agreements – and citizen suits more generally – interfere with a “core executive function” of the president and executive branch and longstanding constitutional notions of separation of powers. To resolve that question soundly, one must look to the text of the Constitution itself, the Federalist Papers, and the relevant body of law that the lower federal courts have already developed.

Notably, neither the Constitution nor the Federalist Papers provide a clear indication of what constitutes a “core executive function” or the …