Cross-posted from Legal Planet.

In terms of regulatory policy, the second half of Trump's term is shaping up to look a lot like Obama's final two years in office. Congress won't be doing much to advance Trump's environment and energy agenda, as was the case with Obama. So, like Obama, Trump's focus will be on administrative action, particularly regulatory initiatives (or deregulatory ones, in Trump's case). The big question is how these efforts will fare in court. I want to discuss three aspects of that question: timing, judicial review of statutory issues, and judicial review of policy analysis.

Timing. The Trump people are keenly aware that some of Obama's most important rules were still in the litigation process when he left office, which has kept those rules hanging in the wind for the two years since Trump took office. They seem desperate to avoid the same fate …

Cross-posted from Legal Planet.

This is the second of three posts assessing the first two years of the Trump administration. You can read the first post here.

We all seem to be subscribed to the "All Trump News, All the Time" newsfeed. It may be helpful to step back a bit and compare Trump with his last Republican predecessor, George W. Bush.

How do the two stack up? Bush and Trump were very different in character and style, but their regulatory aims were similar. Bush and Trump were both trying to steer the country in the same directions in terms of regulatory policy: increased use of fossil fuels, less environmental regulation. But the Republican Party has been radicalized since Bush's day, and in environmental affairs, the Trump administration reflects that radicalization.

For instance, whereas Bush actually created important ocean national monuments (though it was a bit out …

Cross-posted from Legal Planet.

In September 2017 – that seems so long ago! – Eric Biber and I released a report assessing the state of play in environmental issues 200 days into the Trump administration, based on an earlier series of blog posts. As we end Trump's second year, it's time to bring that assessment up to date. This is the first of three posts examining what Trump has done (and hasn't done) in terms of environment and energy.

For this first post, I'll follow the same outline as the 9/17 report but omit a lot of the detail.

Legislation. Eric and I considered substantive legislative changes very unlikely although potentially very damaging. Almost no substantive changes have made it through Congress. The one exception was the provision in the Senate tax bill for opening up ANWR for drilling, which was able to use reconciliation procedures since it …

For two years, President Trump has attempted to steer federal policy in ways that undercut core American values. His vision of government – to the extent one can divine a coherent vision – lacks compassion, fairness, a commitment to equal voice and opportunity, and concern for the long-term threats that families and communities cannot address on their own. Instead, the president has embarked on a campaign to remake the core institutions of our democracy in a new, authoritarian mold. And along the way, he has set an expectation for his administration that its agenda and his personal political and financial aspirations carry more weight than the rule of law.

Tuesday's midterms showed that Americans are tired of Congress rubber-stamping the president's actions and letting his mean-spirited rhetoric become normalized. The newly minted Democratic majority in the House of Representatives will be sworn in in early January with a mandate …

This post was originally published on ACSblog, the blog of the American Constitution Society. Reprinted with permission.

On October 26, 2018, the comment period ended for a new rule that guts U.S. fuel efficiency standards for vehicles. If the final rule resembles the proposed rule, the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks (SAFE Vehicles Rule) will lock in old fuel efficiency standards, reversing Obama administration regulations mandating increased efficiency. Specifically, the "preferred alternative" expressed by the Trump administration's EPA is to keep 2020 standards for both passenger vehicles and light trucks through 2026, replacing current regulations that required enhanced efficiency during the six-year period. Further, the rule proposes to remove California's existing authorization to regulate carbon emissions from cars, preempting both California's regulation and other states that have adopted standards identical to California's.

This blunt about-face in …

This op-ed originally ran in the Fresno Bee.

Cities in the San Joaquin Valley continue to land among the American Lung Association's top 10 most polluted communities in the country. Meanwhile, on Tuesday, the comment period closed on the Trump administration's plans to ratchet back federal emissions standards and eliminate California's authority to run its crucial car emissions programs. Although the administration has its eyes on greenhouse gas controls, what's at stake is California's ability to transition to low- and zero-emission vehicles, a transition essential to reducing the pollutants that threaten public health in California and elsewhere in the nation.

The federal government has the primary authority to set automobile pollution standards under the Clean Air Act. But Congress — recognizing California's serious air pollution challenges — stipulated that California is entitled to a "waiver" that lets the state set stricter standards, and which gives other states the option …

The Trump administration has few plans to protect workers from emerging workplace health and safety hazards, according to the regulatory agenda released by the White House on October 16. This is nothing new for this administration, which has consistently neglected to take up worker protections, instead focusing the Occupational Safety and Health Administration's (OSHA's) resources on delaying and rolling back existing safeguards. 

Among the rules in OSHA's crosshairs, the agency plans to revoke a requirement for employers with 250 or more employees to electronically submit detailed logs of injuries and illnesses that occur at their establishments. The electronic reporting requirement for large firms is one piece of a 2016 rule finalized just before President Obama's term ended. The 2016 rule only sought to require establishments to submit injury and illness records that employers are already required to keep on site. But Trump's OSHA is basing its rollback …

The Trump administration's Fall 2018 regulatory agenda dropped late last night, and as with previous iterations of this preview of what's to come on the regulatory front, it is chock full of numbers – at least the kinds of numbers partisan ideologues and regulated industries care about. But what these numbers don't reveal are the kinds of things a decent society cares about. Basic things like how well we are protecting the health and welfare of children, for example.

Already, we have heard President Trump and various White House officials congratulate themselves for their large number of deregulatory actions, the relatively small number of "regulatory" actions, and net cost savings to industry. These numbers are worse than misleading; they're a diversion. They're a bogus benchmark that tells us nothing about the quality of the regulations themselves or how well the Trump administration is doing in terms of fulfilling …