administrative law
Gorsuch is (Partly) Right
Justice Gorsuch is wrong about the cure, but delegation has gotten out of hand.
Justice Gorsuch has made it a personal crusade to revive the nondelegation doctrine, in part because of concerns about the rising tide of presidential power. The nondelegation doctrine tries to limit the ability of Congress to delegate authority to the executive branch. That’s an unworkable solution, but Gorsuch is right that Congress has put far too much trust in the good faith and sound judgment of the President and his subordinates. That’s especially true of national security and emergency powers.
CONTINUE READINGThe Rise and Fall of an Energy Emergency
Frantic federal efforts to keep uneconomical coal plants from closing met their doom in a new court decision.
According to the Department of Energy, decrepit coal-fired power plants had to be kept open to avoid “unacceptable reliability risks within five years” unless something changed. You could be forgiven for thinking that calling this hypothetical situation an emergency was something of a stretch. The legality of the orders reached the D.C. Circuit in a Michigan case involving a coal plant that seemingly everyone except Trump wanted to close. The court found no basis for the order. The opinion avoids directly calling out the government’s abuse of power. Instead, it keeps focused on basic issues of statutory interpretation. The statute clearly didn’t give DOE anything like the authority to take over the power system that it was claiming.
CONTINUE READINGThe National Security Scam
Just about everything gets labeled an emergency or national security threat these days. The courts may be starting to catch on.
The Trump Administration invokes national security and declares national emergencies to justify all manner of actions such as excusing violation of environmental laws. Past Administrations have gotten strong deference for their emergency claims. But this one may be quickly using up its credibility. You can pass a certain number of counterfeit bills, but a flood of counterfeits is hard to hide.
CONTINUE READINGStrictly Ballroom
How will the Supreme Court’s opinion impact environmental standing?
There’s a lot of concern about how the Supreme Court’s opinion in the ballroom case could impact environmental law. In the majority’s view, the problem was that the plaintiff lacked standing. The concern is that the Court may have cut back standing doctrine in a way that will block many environmental cases. You never know what the Court might do down the road, but I think the opinion itself is much more limited.
CONTINUE READINGMoving Environment Assessment Outside the Permit Process
Streamlining is good but shouldn’t become an excuse for just ignoring the environment.
I’m very sympathetic to arguments that we’re unable to build important infrastructure, whether housing or transmission, because we have too much red tape. There’s a real temptation, however, to throw out the environment a baby with the procedural bathwater. It’s hard not to suspect that sometimes that’s the point and permit reform is just an effort to avoid considering environmental harms. Be that as it may, it’s easy to embrace restrictions on environmental reviews without giving enough thought to what we may be losing – and how we might be able to get the best of both worlds. As Eric Biber has discussed in many of his posts, many proposed permit reforms are not well-designed to achieve their ends. A more fundamental problem is that we’re not always sure we’re addressing the right part of the problem.
CONTINUE READINGNEPA and Remedies
Trying to solve the difficult challenge of reforming remedies for NEPA violations
Earlier this year, the Institute for Progress (a pro-permitting reform organization) published a series of proposals for changing remedies for agency violations of NEPA. There are good reasons to think about the problem. If any NEPA violation can stop an entire project, that can incentivize efforts to fly-speck environmental review documents to strategically stop projects …
Continue reading “NEPA and Remedies”
CONTINUE READINGTrump versus Cost-Benefit Analysis
EPA’s disavowal of CBA is the culmination of a longer assault.
EPA recently said it would no longer try to quantify the harms done by the two most serious, widespread air pollutants. Given that these are the most fully understood of all environmental impacts, it’s not clear what future regulations, if any, might be still subject to cost benefit analysis. This didn’t come out of the blue. Rather, it is the culmination of a series of steps that began when Trump took office in 2017. By 2018, Trump’s executive orders and other administration actions had led me to write a post about “the rise of benefit-blind analysis.” Little did I know what was coming down the road.
CONTINUE READINGThe Path to Abundance, Part V
Abundance reforms will require consensus and trust, which are in short supply in American politics
This is the fifth post in a series of six posts. The first post is here. The second post is here. The third post is here. The fourth post is here. In my last post I noted some important political challenges to abundance reforms: It is unlikely that they will produce immediate political benefits, but …
Continue reading “The Path to Abundance, Part V”
CONTINUE READINGThe Path to Abundance, Part IV
Abundance reforms may not produce immediate political benefits, and may see significant backlash
This is the fourth post in a series of six posts. The first post is here. The second post is here. The third post is here. As I discussed in my last blog post, abundance policy reforms will necessarily require tradeoffs, which leads us to politics. Will the political context allow for making decisions about …
Continue reading “The Path to Abundance, Part IV”
CONTINUE READINGThe Path to Abundance, Part III
Abundance reforms will pose difficult tradeoffs, including with environmental goals and public participation
This is the third post in a series of six posts. The first post is here. The second post is here. The reforms that abundance advocates have proposed are varied, in part because they target a wide range of policy areas. I will begin with housing as an example of the reforms being proposed – …
Continue reading “The Path to Abundance, Part III”
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