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 op-ed was originally published by The Regulatory Review. Reprinted with permission.
Law professors dream of the day when the U.S. Supreme Court will rely on one of their publications for a proposition that is crucial to the outcome of an important case. What better validation of all the blood, sweat, and tears that were poured into the publication? What a surge of power to discover that their work has had an impact, if only in the context of a single lawsuit. What an existential high to know that they have finally arrived at the pinnacle.
We experienced none of those emotions when reading Chief Justice John Roberts' opinion in West Virginia v. EPA. The citations to our work were both minor and innocuous, so that fact helps allay any sense of accomplishment. But equally significant, the Court's analysis bears little relationship to our own understanding …
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 …
Carbon capture use and storage is at the center of the national climate policy debate, promoted by the oil and gas industry, the private sector, and even some environmental organizations as a solution to the climate crisis.
The federal infrastructure package that President Biden recently signed into law appropriates more than $10.3 billion for the nationwide buildout of carbon capture infrastructure. Preliminary deals on the Build Back Better Act also contain expansions of the primary federal tax credit incentivizing carbon capture (45Q Tax Credit). The fossil fuel industry is targeting Louisiana as an emerging hub for carbon capture, mainly because of the large concentration of industrial facilities that emit carbon dioxide in the stretch of land between New Orleans and Baton Rouge.
While Louisiana must move quickly and aggressively in pursuit of climate change solutions, deploying carbon capture to reach net-zero emissions is not the answer …
During a historic hearing before the U.S. House Committee on Oversight and Reform on October 28, the executives of ExxonMobil, Chevron, Shell, BP, and the American Petroleum Institute (API), refused to admit to their decades-long climate disinformation campaign that is now well-documented in publicly available documents uncovered by journalists and researchers.
If that weren’t enough, the executives continued to deny climate science under oath, albeit with a slight twist from their previous disinformation campaign. Instead of denying the science establishing that fossil fuels are driving the climate crisis, they’re now denying the science establishing the urgent need for a rapid transition away from fossil fuels.
In other words, they’re still lying — a strategy that was on full display in this blockbuster hearing.
The ultimate questions at hand were whether the chiefs of the oil and gas industry would:
- Admit to their companies’ decades-long …
This post was originally published on Legal Planet. Reprinted with permission.
The decision at the Glasgow climate conference to phase down fossil fuels is an important step forward — and not just because of climate change. We think of fossil fuels as a source of climate change, but that's only a one part of the problem. From their extraction to their combustion, everything about them is destructive to the environment and human health.
Our system of environmental regulation divides up regulation of a single substance based on each of its environmental impacts. Thus, the regulatory system sees the "trees," not the "forest." That muddies the waters when we are talking about regulatory priorities, strategies, and long-term goals. It can also lead to framing issues in ways that may weaken environmentalist arguments, since the various harms of a substance or activity get fragmented into different silos.
Fossil …
This op-ed was originally published in The Hill.
Addresses by national leaders to the United Nations General Assembly are often broad expressions of lofty ideals, and President Joe Biden's speech Tuesday fell squarely into that category. It covered an extraordinary panoply of global challenges and policy concerns, including controlling the COVID-19 pandemic, rebuilding and strengthening global alliances and regional initiatives, curbing terrorism, protecting human rights (including the rights of women and workers) and lifting up democracy. Biden also committed the United States to advancing human dignity, combating corruption and seeking peace in areas of conflict around the world.
Of particular importance were Biden's remarks regarding the global climate change crisis. Observing that "we stand at an inflection point in history," Biden outlined a stark choice between "meeting the threat of climate change" or suffering "the merciless march of ever-worsening droughts and floods, more intense fires …
On August 29, Hurricane Ida pummeled Louisiana’s coastline with winds as high as 150 miles per hour and a storm surge of up to nine feet, flooding communities and destroying homes. The Category 4 storm displaced thousands of people and left 1 million without power — all as the coronavirus surge overwhelms hospitals across the state.
Amid this chaos, Louisianans faced yet another hazard — the risk of exposure to toxic pollutants from explosions, flares, and accidental releases at disabled, damaged, or flooded industrial facilities.
A week after the storm made landfall, the U.S. Environmental Protection Agency’s (EPA) National Response Center (NRC), which collects reports on oil, chemical, radiological, biological, and etiological discharges into the environment, had received more than 170 incident reports related to Ida. Many of these were in Louisiana, and 17 were air releases. Yet little is known about the effects as 13 …
This op-ed was originally published in The Hill.
Scientific concerns about the impacts and risks of global climate change are scarcely new. In 1988, those concerns became sufficiently widespread in the scientific community that the United Nations established the Intergovernmental Panel on Climate Change (IPCC), a committee that included hundreds of the world’s most distinguished climate scientists, to study the emerging climate problem and its implications. Since its creation, this panel has issued five full extensive reports. These assessments were soundly criticized by some independent climate scientists as understating the significance and dangers of climate change. However, earlier this month, the IPCC seems to have rectified that purported problem.
In the first segment of its Sixth Assessment, issued earlier this month, the IPCC report states that it "provides a full and comprehensive assessment of the physical science basis of climate change that builds upon the previous …
