Late last month, the U.S. Department of Justice (DOJ) quietly took a major step to undercut the enforcement of our federal pollution control laws. In a publicly released but little publicized memorandum, DOJ’s Associate Attorney General for Environment and Natural Resources, Jeffrey Bossert Clark, announced that the agency will no longer approve enforcement case settlements with local governments that include Supplemental Environmental Projects (SEPs) – a long-standing feature of negotiated resolutions of environmental enforcement cases.

SEPs allow a non-complying company, state, or local government to develop an environmentally beneficial project, not otherwise required by law, in lieu of paying part of its fine. To implement its SEP program, EPA carefully crafted a Policy on Supplemental Environmental Projects with the intention of ensuring that SEPs are limited to projects that improve public health or the environment while not directly benefitting a violator or third parties. Under EPA …

Originally published on Legal Planet.

Prompting rage by President Trump, California and several carmakers entered into a voluntary agreement on carbon emissions from new cars that blew past the administration's efforts to repeal existing federal requirements. Last week, the Trump administration slapped back at California. Although there's been a lot of editorializing about that response, I've seen very little about the legal dimensions of the administration's actions. I'd like to shed a little bit of light on those.

The administration took two separate actions. First, the Department of Transportation and EPA sent a letter arguing that California's action appeared to violate the federal statutes governing CAFE (fuel efficiency) and emissions standards for new vehicles. Second, the Justice Department opened an antitrust probe of the car companies themselves. How strong are the government's legal positions?

Let's start with the DOT/EPA letter. The Clean Air Act and the …

Originally published on Legal Planet.

The first phase of Trump's regulatory rollbacks has been directed against Obama's climate change regulations. Those deregulatory actions will be finalized soon. What happens next will be in the hands of the courts. But the Trump EPA is now beginning a new phase in its attack on environmental regulation. Having tried to eliminate climate regulation, its next move will be an attack on basic protections against air pollution.

The Clean Air Act, the federal air pollution statute, is largely structured in terms of achieving national ambient air quality standards (NAAQS). In March 2020, EPA will propose revisions in the standards for ozone and particulates, the two most important pollutants. It has already started work on the revisions. Guess what? EPA won't be planning to tighten the standards. If anything, they are likely to loosen them, weakening a crucial safeguard.

Trump's EPA has …

Originally published by The Regulatory Review. Reprinted with permission.

As the United States slogs through year three of a deregulatory implosion, one truth has become clear: As practiced by the Trump administration, cost-benefit analysis has become a perversion of a neutral approach to policymaking.

To be forthright, I was never a fan of the number crunching. I thought it created the false impression that numerical estimates were precise, drastically understated benefits, buried controversial value judgments behind barricades of formulas, and depended on unreliable indicators of how much real people valued risk. But I understood it was here to stay when Cass Sunstein persuaded President Barack Obama to embrace it. The task for people like me became understanding how the methodology was practiced by economists so that we could make arguments critiquing its harsh applications.

The first sign of a crumbling structure was the shift among congressional conservatives …

Originally published by The Regulatory Review. Reprinted with permission.

When it comes to the need for federal regulation, the American political system is currently deeply divided along ideological and partisan lines. This division has a number of causes, but a good part of the division can unquestionably be attributed to what Professor Thomas McGarity has referred to as the anti-regulatory "idea infrastructure" and the "influence infrastructure" constructed by conservatives in the early 1970s and continued thereafter—ideas intended to block and roll back public protections along with tactics for implementing those anti-regulatory ideas.

That conservative effort has succeeded for many years, but the country has paid a steep price in terms of increased risks from the unbridled pursuit of profit. The 2018 congressional election may portend a looming backlash against the political right, with its own intransigent opposition to common sense public protections leading to its demise …

Last night, CPR Member Scholar Amy Sinden and I published an op-ed in The Hill explaining the dangers of a new rulemaking recently launched by Environmental Protection Agency (EPA) Administrator Andrew Wheeler and former air office Assistant Administrator Bill Wehrum. Through this rulemaking, Wheeler and Wehrum – both former industry lobbyists – will kick off the EPA's agency-wide effort to overhaul how it conducts cost-benefit analysis for its pending rules to ensure that this methodology remains heavily biased in favor polluters at the expense of people and our environment.

As the op-ed explains, cost-benefit analysis was always meant to provide industry with a powerful trump card in the rulemaking process. Industry expected its methodologies – while masquerading as objective and rational – would systematically favor weaker or no regulations. By and large, that held true for the nearly 40 years that cost-benefit analysis has ruled regulatory decision-making. But in the environmental …

Originally published on Legal Planet.

When a facility installs and operates the required pollution control equipment, we normally think of the pollution problem as solved. But there still may be bursts of pollution associated with start-up, shut-down, accidents, or external events. A recent study of pollution in Texas shows that these events have substantial health impacts, involving significant deaths and overall costs of about a quarter billion dollars a year in that state. Ironically, the study comes out at the same time as Trump's EPA has proposed to approve Texas's lax treatment of these "exceptional events." Texas purports to bar federal courts from even considering civil penalties for permit violations due to those events.

These events may be exceptional, but that does not make them harmless. The study by researchers at the University of Indiana proved that excess emissions from exceptional events impact public health. According …

Originally published on Legal Planet.

The Trump administration's hostile attitude toward science has continued unabated. The administration has used a triad of strategies: efforts to defund research, suppression of scientific findings, and embrace of fringe science.

1. Budget. The administration continues to favor deep cuts in research support. Its initial 2020 budget proposal calls for a 13 percent cut to the National Science Foundation, a 12 percent cut at the National Institutes of Health, and elimination of the Energy Department's research support for advanced energy technologies (ARPA-E) and EPA's climate change research office. The proposal would also eliminate funding for the Sea Grant program, which funds environmental research on the coasts. The budget proposal is unlikely to become law, given that similar proposals were rejected even when the Republicans controlled both houses of Congress. But they are indicative of the administration's values.  
2. Toxic chemical risks. A report by …

The annual Duke Law Journal Administrative Law Symposium has long served as one of the most prestigious fora for cutting-edge administrative law scholarship. This year's event, which featured the leadership and contributions of six CPR Member Scholars, was no exception. Each symposium is built around a theme, and this year's topic was "Deregulatory Games," which examined how the Trump administration's aggressive and often bizarre assault on our system of regulatory safeguards has tested the long-standing doctrines, norms, and institutions of U.S. administrative law. Last week, the Duke Law Journal published a compilation of articles derived from the presentations at this year's symposium.

It's safe to say no aspect of the Trump administration has been normal, and that especially rings true with regulation. While undermining the regulatory system has long been a goal of conservative policymakers and their corporate interest allies, the manner in which …