How I Learned to Stop Worrying and Love OIRA
OIRA may have had its problems. What we have right now is much worse.
If you’re like most environmentalists, you probably don’t have a high opinion of OIRA, the White House office that’s supposed to oversee regulations. (For those who are new to this, OIRA stands for the Office of Information and Regulatory Affairs.) The complaints are legion: that OIRA lacks transparency, that it acts as a back door for industry influence, that its role has never been authorized by Congress, and that its use of cost-benefit analysis tends to disfavo...
CONTINUE READINGThe Trump Administration’s Latest Efforts to Hobble the Clean Water Act
Administration's New Plan to Eviscerate States' CWA § 401 Certification Authority Is Flawed Procedurally & Substantively
By now, readers of Legal Planet are well aware of President Trump's ongoing efforts to rescind the Obama Administration's "Waters of the United States" rule and replace it with a new federal regulation that dramatically circumscribes federal regulatory authority under the Clean Water Act. My Legal Planet colleagues and I have previously blogged on this topic, and I won't retread that ground here. But the Trump Administration's efforts to eviscerate the federal Clean...
CONTINUE READINGResolving Interconnection Disputes to Speed Clean Technology Deployment
New California agency dispute resolution process in need of expert panelists
When a homeowner or business wants to install clean technology like renewable electricity generation or energy storage either for on-site usage or as a grid service, they occasionally run into problems obtaining approvals from the local electric utility to connect that resource to the electrical grid. The owner must enter into an interconnection agreement with the utility to set the terms of the grid connection and help the utility to track installations system-wide, but...
CONTINUE READINGWhere’s the Beef?
Mississippi's "Veggie Burgers" Ban is Almost Certainly Unconstitutional
Mississippi recently passed a law that has the effect of banning terms like “veggie burger.” It's easy to imagine other states passing similar laws. From an environmental view, that’s problematic, because beef in particular is connected with much higher greenhouse gas emissions than plant products. It’s not just the methane from cow-burps, it’s also all the carbon emissions connected with growing corn to feed the cattle. But in addition to its environment...
CONTINUE READINGJustice Stevens and the Rule of (Environmental) Law
A simple but powerful principle: courts and agencies should respect statutes.
Justice Stevens and the Rule of (Environmental) Law There’s already been a lot written in the aftermath of Justice Stevens’s death, including Ann Carlson’s excellent Legal Planet post last week. I’d like to add something about an aspect of his jurisprudence that had great relevance to environmental law: his belief in the rule of law, and specifically, in the duty of both the judiciary and the executive branch to respect and implement congressional mandates. ...
CONTINUE READINGWill Self-Driving Battery Electric Buses Replace Rail Transit?
A question for LA Metro CEO Phil Washington at "LA Infill" conference at UCLA Law on July 24th
Many urbanists, environmentalists, and transit enthusiasts love rail. Los Angeles voters in particular have repeatedly expressed the wish for more rail, approving county sales tax increases by overwhelming margins in 2008 and 2016, along with prior measures in 1980 and 1990, in part to fund a nation-leading, multi-billion dollar rail transit build out (a history I documented in the 2014 book Railtown). Many other cities around the country also either have mature rail sys...
CONTINUE READINGIs the Sun Finally Rising in the Southeast?
Slowly, and a bit grudgingly, the Old South is moving toward solar.
Southern states like to brag about their sunny weather. Florida even calls itself the Sunshine State. Yet the region lags well behind in terms of putting that sunshine to work. But it appears that change is coming. Solar generating capacity in the Southeast is expected to nearly double over the next three years, though from a low baseline. The situation has been fairly dismal. For instance, despite growth in solar over the past few years, solar is only 0.2% of F...
CONTINUE READINGWarren’s public lands policy proposal
The Senator's policy proposals have a lot of good points, but could be even better
Senator Elizabeth Warren has become famous for her policy plan documents as she runs for President. A few months ago, she released a new one focusing on public lands. The key points in her plan include: A moratorium on all new fossil fuel leasing on federal public lands Providing 10% of US renewable energy from projects on public lands Restoring the National Monuments that the Trump Administration is trying to shrink A commitment that funding from the Land ...
CONTINUE READINGDoes the US have a delegation problem?
A comparison of US and Canadian environmental law indicates perhaps not
One of the big cases at the end of this year’s Supreme Court term was Gundy v. United States, where four justices signaled they were open to reviving a long dormant doctrine, the non-delegation doctrine, to constrain open-ended delegations of authority from Congress to Executive Branch agencies. There’s been various prognostications as to whether the Court will go further. Here, I ask whether the US really has a delegation problem in the first place. Arguments for...
CONTINUE READINGThe Witching Auer
The Supreme Court rules on deference to agency interpretations.
The Court’s opinion in Kisor v. Wilkie was eagerly awaited by administrative law experts. It is one skirmish in the ongoing war over deference to agencies. In this case, the issue was whether to overrule the Auer doctrine, which requires courts to defer to an agency’s reasonable interpretation of its own regulations. This doctrine, like its big brother, the Chevron doctrine, has become a target for conservative scholars and judges. The Auer doctrine has obvi...
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