Member Scholar Buzbee Leads Congressional Amicus in Crucial Supreme Court Clean Water Act Case
Any high school student can tell you that water follows the path of least resistance. A similar rule might be said to apply to corporate polluters and small government ideologues who now see the federal judiciary — especially a U.S. Supreme Court stocked with Trump-era judicial activists — as the path of least resistance in pursuing their agenda of the "deconstruction of the administrative state." The first case they have teed up for the October session of oral arguments is Sackett v. EPA, which the Court could use to gut the Clean Water Act.
Center for Progressive Reform Member Scholar William Buzbee is helping lead the defense of this bedrock environmental law. Working with the Georgetown Law Center's Environmental Law and Justice Clinic, Buzbee authored an amicus brief for members of Congress who support a strong Clean Water Act. In all, 167 members of Congress signed on to the brief that Buzbee led and wrote with his co-authors, Sara Colangelo and Jack Whiteley.
The basic question at issue in the case is how far the Clean Water Act's protections should reach. This is a question that has been the subject of considerable controversy for decades. The difference now is that …
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 on Legal Planet. Reprinted with permission.
Soon after Trump took office, Republicans used the Congressional Review Act (CRA) to overturn sixteen Obama-era regulations. If they win control of the government in 2024, they'll undoubtedly do the same thing to Biden regulations. It behooves us, then, to understand the effect of these legislative interventions. A Ninth Circuit ruling last week in a case involving bear baiting, Safari Club v. Haaland sheds new light on this murky subject.
The CRA provides a fast-track process for Congress to repeal administrative regulations. Such a repeal also impacts the agency's power to issue new regulations. In the absence of further legislation, an agency may not reissue the rule in "substantially the same form" or issue a "new rule that is substantially the same" as the overturned rule. As a thorough report by the Congressional Research Service explains …
This post was originally published on Legal Planet. Reprinted with permission.
Last week, the White House undid an effort by the Trump administration to undermine the use of environmental impact statements. The prior rules had been in effect since 1978. Restoring the 1978 version was the right thing to do. The Trump rules arbitrarily limited the scope of the environmental effects that the U.S. Environmental Protection Agency (EPA) can consider under the National Environmental Policy Act (NEPA). Their goal was clearly to prevent consideration of climate change.
More specifically, the Trump revision cut references to indirect or cumulative environmental impacts and discouraged consideration of effects that are remote in time, geographically remote, or the product of a lengthy causal chain. These restrictions flew in the face of everything we know about harm to the environment. We know that harm is often long-term rather than immediately obvious …
Environmentalists have complained for years about presidential control of the administrative agencies charged with protecting the environment, seeing it as a way of thwarting proper administration of environmentally protective laws. But the U.S. Supreme Court in two recent decisions — Seila Law v. CFPB and Collins v. Yellen — made presidential control over administrative agencies a constitutional requirement (with limited and unstable exceptions) by embracing the unitary executive theory, which views administrative agencies as presidential lackeys. My new book, The Specter of Dictatorship: Judicial Enabling of Presidential Power, shows that the unitary executive theory is not only bad for environmental policy, but a threat to democracy’s survival, upon which environmental policy and all other sensible policy depends.
In The Specter of Dictatorship, I trace the modern movement toward a unitary executive back to former President Ronald Reagan’s executive order establishing centralized review of agency decisions by …
This post was originally published on Legal Planet. Reprinted with permission.
"The social cost of carbon" isn't exactly a household phrase. It's an estimate of the harm caused by emitting a ton of carbon dioxide over the many decades it remains in the atmosphere. That's an important factor in calculating the costs and benefits of climate regulations. For an arcane concept, it has certainly caused a lot of controversy. The Obama administration came up with a set of estimates, which Trump then slashed by 90 percent.
In an early executive order, Biden created a task force to revisit the issue. Last week, the task force issued its first report. It's an impressive effort given that Biden is barely a month into his presidency. The document provides a clear overview of the ways in which climate science and climate economics have advanced since the Obama estimates and makes …
This op-ed was originally published in The Hill.
Since taking office, President Biden has pursued an active agenda to address many urgent matters that require his prompt attention. We hope one important initiative does not get lost in transition: restoring the norms of good governance.
During his term in office, President Trump sought to exert absolute control over the apparatus of government by undercutting normal operating practices and systematically dismantling protections for officials whose duty to the public might override their personal loyalty to him. It is no secret that Trump demanded personal loyalty from executive branch officials and fired those, like Attorney General Jeff Sessions, who prioritized complying with the law over following his orders. He has taken many actions to strip, override and undermine essential protections for our nation’s public servants.
Biden has already taken some steps to address these concerns. On Jan. 22 …
This post originally ran in The Conversation and on Legal Planet and is reprinted here under Creative Commons license CC BY-ND 4.0.
The Trump administration dedicated itself to deregulation with unprecedented fervor. It rolled back scores of regulations across government agencies, including more than 80 environmental rules.
The Biden administration can reverse some of those actions quickly – for instance, as president, Joe Biden can undo Donald Trump’s executive orders with a stroke of the pen. On his first day in office, Biden used that power to start bringing the U.S. back into the Paris climate agreement and the World Health Organization, and to rescind a permit for the Keystone XL oil pipeline and orders restricting travel from several predominantly Muslim and African countries. He also ordered a temporary moratorium on oil and natural gas leases in the Arctic National Wildlife Refuge.
Undoing most regulatory …
The pro-Trump insurrection that took place at the United States Capitol on January 6 was the most serious threat to the rule of law in our country in well over a century. Unless we fully grapple with the conditions and causes that gave rise to it, this threat will linger, waiting for the next spark to reignite it.
The Capitol insurrection is the predictable culmination of decades of self-serving attacks on "government." Especially since the Reagan administration, conservative lawmakers have increasingly amassed political fortunes by stoking the anger and resentment of millions of Americans who have been left behind by an ever more lopsided economy.
Their formula rests on a self-fulfilling prophesy: Attack government effectiveness to justify deep cuts to government functions, which in turn fuels new attacks on government and new calls for even deeper cuts.
Ordinarily, our free press would be responsible for halting …
One of the most vexing environmental law issues of the last three decades is the scope of the term "waters of the United States" (WOTUS) in the Clean Water Act — and what marshes, lakes, and streams fall under its purview. A connected legal question stretching back even further is how much deference to give agencies in policymaking and legal interpretations.
These issues are present in both the Trump administration's final "Waters of the United States" rule, which narrowly defines waters subject to the act, and the Biden administration's likely attempt to expand that definition. The Trump administration's narrow approach dramatically reduces the number of waterways under federal protection. A broader definition would restore and possibly expand protections to better safeguard public and environmental health.
A new study on the economic analyses in the Trump rule (which I co-authored) concludes that its supporting economic analyses rely on questionable …
