The Threat to Individual Liberty in Judge Kavanaugh's CFPB Opinion
This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court.
"This is a case about executive power and individual liberty." That is how Judge Brett Kavanaugh started the opinion he wrote for a three-judge panel of the D.C. Circuit Court of Appeals holding that the structure of the Consumer Financial Protection Bureau (CFPB) was unconstitutional. That opinion is one among many that reflects Supreme Court nominee Kavanaugh's belief that administrative agencies are in a constitutionally precarious position that demands strong judicial supervision.
Many believe that, as a result, a Justice Kavanaugh would be a reliable vote in favor of industry and against administrative agencies and the environmental, health, safety, and consumer protections they enforce. Others claim he would be "evenhanded" in cases challenging agency action and simply do his job as a judge by insisting that agencies stay within the bounds of their constitutional authority. That debate is an important one that will undoubtedly be among the main topics that members of the Senate Judiciary Committee focus on during his confirmation hearings. But there's another important question that Kavanaugh's CFPB opinion raises about his ability to serve Americans well as …
This op-ed originally ran in The Hill.
Last month, two Inspectors General issued scathing reports about their departments' behavior. The Justice Department's IG got all the attention, while largely overlooked was a disturbing report from the Interior Department IG, who concluded that the agency had no reasonable rationale for halting a major study of the health risks of mountaintop removal mining. The study was already under way, and nearly half of its $1 million price tag had already been spent, but Secretary Ryan Zinke and his lieutenants pulled the plug, presumably because they didn't want to have to face its likely findings. They told investigators it was "because they did not believe it would produce any new information and felt costs would exceed the benefits."
The Trump administration's insistence on suppressing scientific evidence of health risks inconvenient to extractive industries is at once shocking and unsurprising …
This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court.
Presidents control crucial government agencies with authority over the environment, food and drug safety, and workplace conditions. Through various environmental, health, safety, and other laws, Congress has given these agencies broad authority to issue rules and regulations that affect the lives of every American. But current law provides safeguards against arbitrary decisions – safeguards that Judge Brett Kavanaugh would weaken or eliminate if confirmed to the U.S. Supreme Court.
These safeguards are designed to promote public input and force agencies to disclose their evidence and reasoning to public scrutiny. Agencies must disclose proposed rules, obtain public comment, and then provide explanations of their decisions. As interpreted by the courts, this means an agency has to provide enough information to allow substantive comments, and it has to give a reasoned …
This op-ed originally ran in the Duluth News Tribune.
Any Minnesotan who has ever dipped a canoe paddle, pitched a tent, or laced up a hiking boot while visiting the Boundary Waters Canoe Area Wilderness can tell you why it is the nation's most-visited wilderness area and considered a crown jewel of Minnesota. Unfortunately, Twin Metals, a subsidiary of the Chilean mining giant Antofagasta PLC, has its eye on the area in hopes of operating a sulfide-ore copper-nickel mine, bringing one of the world's most toxic industries to the edge of the Boundary Waters. Despite the devastating impact expected on the local economy and environment, President Donald Trump's Interior Department is bending over backwards to support the push to pollute.
If allowed, Twin Metals is expected to locate its processing plant on the banks of Birch Lake, a popular fishing and recreation lake that flows into the …
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 …
In addition to deciding the fate of a Supreme Court nominee, the Senate must soon consider whether to approve Brian Benczkowski as head of criminal enforcement for the Department of Justice and a nominee to replace Scott Pruitt as EPA administrator. In early 2017, I urged senators to fulfill their constitutional responsibilities by only approving nominees who would faithfully execute the laws of the United States. But the Senate approved Pruitt anyway, with disastrous results. The chamber now needs to play its constitutional role of protecting the rule of law from Trump’s relentless assault on our safeguards and our democracy.
The Constitution requires Senate confirmation, not to rubber stamp presidential appointments, but to ensure nominees are dedicated to carrying out the law. Alexander Hamilton explained in The Federalist Papers that the Constitution authorizes the Senate to disapprove of presidential nominees to discourage the president from nominating …
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 …
June 22 marks the two-year anniversary of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (colloquially referred to as TSCA reform or new TSCA). The 2016 law provided some hope that the U.S. Environmental Protection Agency (EPA) would finally address the potential risks from tens of thousands of untested and unregulated chemicals common in our households and hygiene products, our food and drinking water, our air, and our workplaces. Unfortunately, under President Trump and Scott Pruitt's leadership, EPA has undermined the law.
Under Pruitt, EPA finalized controversial and legally indefensible framework rules for prioritizing chemicals for risk evaluation and for conducting those evaluations. Environmental and public health advocates have sued the agency over the framework rules because they allow numerous unreasonable health and environmental risks to continue unabated, in violation of the statute. As EPA continues with TSCA implementation under its flawed framework …
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 …
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 …
