Trump Administration
The Tariff Decision and the Major Questions Doctrine
The scope of the doctrine is even more confused now than before.
The tariff decision is good news in terms of checking arbitrary presidential actions, but the opinions fell short in one important area. An important argument against the tariffs was based on the Major Questions Doctrine (or MQD). That doctrine applies whan a government action has “vast political and economic significance.” If the government claims that Congress gave it the power to take such an action, it must point to clear statutory language. The doctrine is controversial in part because no one is quite clear on its basis or when it applies. The tariff decision only made that worse. The Justices took many different positions on the doctrine, deepening the confusion.
CONTINUE READINGThe Most NIMBY Man In The World
As ICE moves to warehouse tens of thousands of immigrants, can locals fight back?
Good piece in the Grey Lady on Wednesday about Trump voters suddenly deciding that some of his policies aren’t so great after all. ICE is trying to build huge detention facilities in order to drag legal immigrants off the streets — specifically, those who are waiting for asylum decisions and those waiting to receive their …
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CONTINUE READINGThe Overlooked Precedent Supporting EPA Regulation of Greenhouse Gases
Even Roberts and Scalia agreed that Mass. v. EPA is the law
An important precedent has been overlooked in the coverage of the Trump EPA’s repeal of the 2009 Endangerment Finding. The 2009 finding relied was based on , in which the Court had held that the Clean Air Act covers air pollution and directed EPA to determine whether greenhouse gases are harmful. One reason to worry about the litigation is that the conservatives Justices all dissented from Massachusetts v. EPA over the repeal. But there’s another equally important precedent: American Electric Power v. Connecticut (AEP). That ruling was joined by Chief Justice Roberts and Justice Scalia, so it may carry more weight.
CONTINUE READINGCan the Endangerment Finding be Repealed? Not While MASS. v. EPA Still Lives.
On any fair reading of Justice Stevens’s opinion, the Endangerment Finding is valid.
EPA claims that its justifications for repealing the Endangerment Finding are consistent with the ruling in Mass. v. EPA. That’s just not true.
CONTINUE READINGHow to Create Permit Certainty?
What might be a good path forward for the FREEDOM Act?
This is the third post in a series looking at the most recent proposed legislation for permit certainty, the FREEDOM Act. Part one, discussing why Congress is considering permit certainty and its importance, is here. Part two, analyzing the strengths and weaknesses of the bill, is here. The good parts of the bill – making …
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CONTINUE READINGAnalyzing the FREEDOM Act
Permit certainty bill has beneficial judicial review provisions, but problematic provisions for damages and compensation.
This is the second post in a series on the FREEDOM Act, a bill in the House of Representatives to address the issue of permit certainty. Part one, explaining why permit certainty is now a hot topic in Congress, is here. All of the reforms in the FREEDOM Act turn on the creation of a …
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CONTINUE READINGThe FREEDOM Act and Permit Certainty
Permit certainty bill has potential, but also some problems that could make it unworkable
As one advocate for permitting reform aptly noted, “permit certainty” is now a prerequisite for any action on permitting reform in this Congress. That’s because the Trump Administration’s war on renewable energy means that Democrats have no desire to do a deal that would not, in practice, make a difference for investment in new clean …
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CONTINUE READINGHot Take on the Endangerment Repeal
It’s a tweaked version of arguments that the Supreme Court rejected in 2007.
EPA’s argument for repealing the Endangerment Finding is basically a rehash of legal arguments that were rejected by the Supreme Court in 2007. These arguments haven’t improved with age. Notably, EPA doesn’t dare contest the science.
CONTINUE READINGThe Accelerating Decline of U.S. Public Health Policy
Just when we get over our shock over one development, another comes along.
It’s hard to believe how quickly a science-driven approach to protecting health has been replaced by ideology and quackery. Lack of expertise is now seen as a plus in making decisions, and the Administration is actively seeking to suppress information about problems that it would rather not address. I posted a month ago about the current evidence-free approach to health policy, Things have only gotten since then. It’s been one bad thing after another. All of this in only a month. There are 34 months left in Trump’s presidency, so you can only imagine how dangerous the situation will be by the time he leaves office.
CONTINUE READINGTrump Will Kill Climate Regulations, But How Exactly?
The Drain is a weekly roundup of environmental and climate news from Legal Planet.
The Environmental Protection Agency will officially revoke what’s known as the endangerment finding tomorrow and in so doing try to erase the basis for virtually all that agency’s regulations cutting greenhouse gases. It’s not really a surprise — we’ve been waiting for this announcement for a year. But seeing the agency’s precise justification will help …
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