Op-Ed: Manchin and the Supreme Court Told Biden to Modernize Regulatory Review — Will He Listen?
This op-ed was originally published in The Hill, and the full version is available on the paper's website. It was published before Sens. Joe Manchin and Chuck Schumer announced their deal on the Inflation Reduction Act.
The Biden administration’s path forward on climate change — as the widely deployed metaphor goes — has become more difficult with the U.S. Supreme Court’s recent decision in West Virginia vs. Environmental Protection Agency (EPA) and Sen. Joe Manchin’s (D-W.Va.) apparent veto of a reconciliation package that contains climate measures. If the Biden administration is to successfully navigate that path — and it must if we are to avert the worst consequences of the climate crisis — the president will need to abandon the “compass” that his predecessors have relied on for decades to guide their policy agenda: Executive Order 12866: Regulatory Planning and Review.
First issued in 1994, the executive order empowers a small White House bureau called the Office of Information and Regulatory Affairs (OIRA) to review and approve agencies’ biggest or most controversial rules. The order further requires OIRA to evaluate those rules using a methodology called “cost-benefit analysis,” which is highly biased against protective safeguards and provides convenient cover …
This is the second part of a post that was originally published on Legal Planet. The first part ran on July 19. Reprinted with permission.
What Legal Authority Would an Emergency Climate Declaration Give the President?
What government powers would be unlocked by declaring a climate change emergency? One immediate possibility would be to use the same power that former President Trump used to divert military construction funds to other uses — in this case, perhaps building wind or solar farms or new transmission lines. But what else could President Biden do?
The Brennan Center has compiled a helpful list of almost 150 statutes giving the president special powers during emergencies. The list doesn’t map the outer perimeter of presidential powers — there are other laws that give presidents powers to take action on the basis of national security, and the president also has some ill-defined, though not …
This is the first part of a post that was originally published on Legal Planet. Click to read Part II. Reprinted with permission.
Based on press reports, it now seems likely that President Joe Biden will soon declare climate change to be a national emergency. Would this be legal? Would it unlock important powers that could be used to fight climate change? My answers are: It would probably be legal, and it would unlock some significant powers. But an emergency declaration is not a magic wand that gives presidents a blank check. It would allow some constructive steps to be taken, but within limits.
I wrote several blog posts about the idea of a climate emergency in 2019. Back then, interest in presidential emergency powers had been sparked by former President Trump’s use of emergency power to help build his border wall. I’ve adapted the …
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 …
This post was originally published on Legal Planet. Reprinted with permission.
The Trump administration left a trail of regulatory destruction behind it. Cleaning up the mess and issuing new regulations is Priority #1 for the Biden administration. Under U.S. Environmental Protection Agency (EPA) head Michael Regan, the effort is beginning to pick up steam.
EPA has begun the year with several major new regulatory efforts. No one of them is transformative standing alone, but their cumulative impact will be substantially cleaner air and lower carbon emissions.
February 28. EPA proposed an unexpectedly strong expansion of the existing rules governing interstate air pollution. The proposal would strengthen existing limits for coal and gas-fired power plants, but it would also add other categories of industry such as cement. In addition, it adds western states like California to the rule's coverage. EPA estimates that the benefits of the rule …
This op-ed was originally published in The Hill.
In its first year in office, the Biden administration has, to its credit, reversed a number of anti-environmental policies initiated by former President Donald Trump.
Gone is the previous administration's infamous "two-for-one" policy, under which federal agencies had to eliminate two regulatory requirements for every new regulation they proposed. Numerous Trump-era initiatives that cut back needed air and water quality protections have also been rescinded. And, thankfully, the U.S. Environmental Protection Agency (EPA) and other federal agencies are once again focused on responding to the mounting dangers posed by the climate crisis.
Given these steps forward, it is perplexing that the current administration has not yet restored a critical environmental tool that has proven workable and highly beneficial in past years: EPA's Supplemental Environmental Projects (SEPs).
Top photo by the Natural …
During the Trump administration, the U.S. Department of the Interior undermined its statutory obligations to protect lands and natural resources managed by the federal government. It also accelerated the extraction of fossil fuels from federal lands and constructed barriers to a shift to renewable energy, hindering efforts to abate climate disruption.
On March 15, 2021, the Senate confirmed Deb Haaland as new secretary of the department, which houses the National Park Service, the Fish and Wildlife Service, and the Bureau of Land Management (BLM) — three agencies that together are responsible for managing millions of acres of some of the nation's most precious terrain.
Before Haaland's confirmation, the Center for Progressive Reform identified five priorities for the department. Here is an update on progress so far.
- Restore curbs on methane waste. In his first week in office, President Biden issued an executive order that enunciated a policy …
This post was originally published on Verfassungsblog. It is reprinted under Creative Commons License Attribution-ShareAlike 4.0 International.
On the same day, the U.S. Supreme Court issued decisions governing requests for emergency stays of two rules protecting Americans from COVID-19. Both rules relied on very similar statutory language, which clearly authorized protection from threats to health. Both of them presented strikingly bad cases for emergency stays. Yet, the Court granted an emergency stay in one of these cases and denied it in the other. These decisions suggest that the Court applies judicial discretion unguided by law or traditional equitable considerations governing treatment of politically controversial regulatory cases.
Similar cases decided differently
In NFIB v. OSHA, the Court stayed a rule insisting that large employers require either vaccination or testing and masking of their employees, but it denied a stay of a rule demanding vaccination of employees …
This post was originally published by the American College of Environmental Lawyers. Reprinted with permission.
A global movement is underway to protect 30 percent of the Earth's lands and waters by 2030. More than seventy countries support this goal to combat climate change and slow the pace of species extinction, both of which are accelerating at an unprecedented rate. The two threats are closely intertwined. The greatest drivers of species extinction are climate change and habitat loss; by the same token, the loss of intact, functioning habitat and biodiversity diminishes the capacity for climate resilience.
In the United States, one of President Biden's earliest executive orders, issued in his first week in office, established a goal to conserve at least 30 percent of U.S. lands and water and 30 percent of U.S. ocean areas by 2030. The order proclaims an "all of government" approach to …
This blog post is the second in a series outlining the Center for Progressive Reform’s new strategic direction. We published "A Turning Point on Climate" in October.
Watch a 2-minute video from James Goodwin as he explains the regulatory system in an approachable and lighthearted way.
Over the last four decades, small government ideologues have waged a coordinated attack against government. The strategy has paid off: Public approval ratings of all three branches of government are at all-time lows.
Nevertheless, the federal government still manages to get things done on a day-to-day basis, and that is primarily due to the so-called 4th branch of government — the administrative and regulatory state that employs 2 million workers, invests trillions of dollars each year on things like air pollution monitoring and cutting-edge clean energy research, and makes rules that protect us all.
This is not to say …
