Is Antitrust Unconstitutional?
It violates the "Major Questions Doctrine" -- which reveals the doctrine's bankruptcy
Last week, I argued that the Unitary Executive Theory does not really exist: it is simply a way for the Supremes to impose their policy preferences, to be discarded if inconvenient. In this week’s episode, we can look at the “Major Questions Doctrine,” which purportedly holds that agencies must point to "clear congressional authorization" for the power asserted in "extraordinary cases". It was first explicitly enunciated in West Virginia v EPA, where the Court d...
CONTINUE READINGTrump Tried to Kill Renewables. He Failed.
Despite assaults by Trump and his Congress, renewables are still growing.
Trump has done everything within his power to bless the US with more air pollution and carbon emissions from fossil fuels. Congress did its part, rolling back billions in spending and set accelerated phaseouts for tax credits. Yet renewable energy hasn’t died. It hasn’t even slowed down all that much. Here are the numbers. Solar alone accounted for almost three-fourths of new generation capacity in Trump’s first ten months, and wind added another 13%, for 87% to...
CONTINUE READINGA Lot Fewer Climate Reporters at the Washington Post
The Drain is a weekly roundup of environmental and climate news from Legal Planet.
I cancelled my subscription to the Washington Post earlier this week. Not to protest billionaire owner Jeff Bezos or anything. Just because I felt like I wasn’t getting all that much for my $3 a week, and it was time to downsize my media subscriptions. I had signed up for the WaPo a couple years ago precisely because they’d invested heavily in their climate reporting. Lately, it’d felt sparse. So, I performed the sad but mundane ritual of unsubscribing. I would...
CONTINUE READINGChaos on the Public Lands?
Congress has begun applying the Congressional Review Act to federal public lands management plans. The impacts might be significant.
The Congressional Review Act (CRA) creates a streamlined process by which Congress can disapprove rules issued by federal agencies – it is one of the few legislative actions that are exempt from the filibuster in Congress, along with reconciliation legislation. This Congress has been aggressive in using the CRA, perhaps because polarization in Congress has made any high-profile legislation impossible as the minority party regularly resorts to the filibuster in the Se...
CONTINUE READINGPesticides, Cancer, and Failure-to-Warn at the Supreme Court
The pro-business Roberts Court considers whether to preempt state law failure-to-warn claims. Will corporate and agency malfeasance on glyphosate matter?
Two weeks ago, the Supreme Court granted cert in an important case involving a preemption question under the Federal Insecticide, Fungicide, and Rodenticide Act (aka FIFRA). The question presented: “Whether the Federal Insecticide, Fungicide, and Rodenticide Act preempts a label-based failure-to-warn claim where EPA has not required the warning?” The case involves glyphosate, which is the active ingredient in Roundup, the most popular weedkiller in the world...
CONTINUE READINGNew Trump Nuclear Reactor Policy: “Trust Us”
The Administration is eliminating safeguards and courting greater skepticism about nuclear safety
The Trump Administration is quietly dismantling safeguards for nuclear power and seeking to limit transparency and public input. Trump’s Department of Energy wants us to blindly trust them to protect the public. But blind trust in federal agencies is in scarce supply these days. Trying to sneak through regulatory changes may speed things up in the short run but is likely to cause delays later and magnify distrust of the industry. The Administration's lack of tr...
CONTINUE READINGKeeping Coal on Life Support
Trump is doing everything he can to boost coal. And still, the industry is on life support.
There’s good news and bad news for coal companies. The good news: Trump has nearly doubled the price of coal stocks since he took office. He’s been doing everything he possibly can (including some actions of dubious legality): cutting the price of coal leases on federal land, reducing environmental reviews, mandating that unprofitable coal plants stay open, and exempting them from some environmental requirements. His Interior Department has even come up with a n...
CONTINUE READINGDoes the Unitary Executive Theory Exist? Not really.
It's just another ideological confection to impose right-wing policies: the Supreme Court's argument last week shows it
At Legal Planet, we often bemoan and gnash our teeth at the Unitary Executive Theory, which supposedly holds that because “the Executive Power shall be vested in the President of the United States,” Congress can not circumscribe the President’s removal authority or even his ability to manage federal agencies in any way. But last week, the Court demonstrated that we have all gotten this wrong: when it comes to the Unitary Executive Theory, we have made a catego...
CONTINUE READINGThe Decline and Fall of the “Regulatory Czar”
Now, the office doesn’t even have a home page, and its boss is lawyer who faces possible disbarment.
OIRA, the White House Office of Information and Regulatory Affairs, was known as “the most powerful agency you’ve never heard of." That was only three years ago. Under Trump 2, however, OIRA seems to have become a minor outpost of the Office of Management and Budget run by Russell Vought. The main purpose of the office was to oversee the use of cost-benefit analysis by regulatory agencies. The Trump Administration has all but abandoned this analytical tool by r...
CONTINUE READINGAnother White House Assault on Federalism
Trump’s Executive Order about rebuilding in LA is a huge federal power grab.
Yesterday, Trump issued an executive order that attempts to eliminate the need for building permits in the LA burn area. The argument is that the permitting process slows down the rebuilding that FEMA grants are supposed to assist. (Never mind that Trump wants to get rid of those federal grants anyway.) The idea seems to be that whenever Congress chooses to subsidize an activity, it authorizes agencies to eliminate all state regulations that might be barriers. This ide...
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