administrative law

The Ongoing Tension over Stormwater Discharges in Los Angeles

Upcoming hearings on a proposed new MS4 permit will set the stage for the future of water quality throughout LA County

[Disclosure: The Frank G. Wells Environmental Clinic at UCLA School of Law is representing Los Angeles Waterkeeper on matters related to the subject of this post. I will shortly be joining Los Angeles Waterkeeper as a Staff Attorney. However, like all other Legal Planet posts, this post reflects only my own views and opinions.] The …

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The Regulatory Process: FAQs

Here’s an explainer on how federal regulations get issued and reviewed by courts.

Even most lawyers, let alone the rest of the population, are a bit fuzzy on how the regulatory system works.  As the Biden Administration is gearing up to start a slew of regulatory proceedings, here’s what you need to know about the process. Issuing Regulations Q:  Where do agencies like EPA get the power to …

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Expertise versus Politics Under Biden

Experts will no longer be pariahs under Biden. But will their voices be heard?

One of the abiding issues in governance is the balance between democratic leadership and experts.  We don’t want government solely by technocrats.  Nor do we want government steered solely by ideology and politics, as under Trump.  Biden will be a vast improvement, but there’s still some question about whether he’ll get the balance right. I …

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Rethinking Presidential Administration

Giving the President more control of regulation has been a good thing — up to a point.

Conservatives love to complain about faceless bureaucrats, but blaming bureaucrats for regulations is hopelessly out of date.  When Elena Kagan was a professor, she wrote an article called “Presidential Administration.”  The article applauded her former boss Bill Clinton for seizing greater control of the regulatory process away from agencies. That trend has accelerated to the …

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Restoring Agency Norms

It’s not just the White House. We also have to repair the way agencies operate.

Donald Trump prided himself on his contempt for established norms of presidential action. Whole books have been written about how to restore those norms. Something similar also happened deeper down in the government, out in the agencies like EPA that do the actual work of governance. Trump appointees have corrupted agencies and trashed the norms …

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Taming Textualism: A Guide for Environmental Lawyers

How to Argue Cases to Conservative Judges

Textualism is the dominant method of interpreting statutes among conservative judges.  It purports to base interpretation on the “ordinary meaning” of the statutory language. This approach ignores traditional tools of statutory interpretation like considering what was actually said in Congress. Ignoring what Congress actually intended seems odd to me. Still, lawyers have to make arguments …

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Should a New Congress Use a Deeply Flawed Law to Cancel Trump’s Regulations?

The Congressional Review Act was Newt Gingrich’s brainchild. It should be repealed.

The Congressional Review Act (CRA), part of Newt Gingrich’s “Contract With America”, slumbered for many years in obscurity. Then, in 2017, Congress dusted it off and used it to kill fifteen Obama administration regulations. I’m not the first to ask whether there should be payback if the White House and Senate change hands. There are …

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Enforcing NEPA’s Forgotten Mandate

The courts have failed to enforce a core requirement of NEPA. That leaves the White House.

The Democrats have adopted an ambitious platform for environmental protection, full of innovative legislative initiatives.  Here’s another idea Biden and Harris should consider, making use of the oldest of the modern environmental statutes. The National Environmental Policy Act (NEPA) is best known for requiring environmental impact statements. While they have enforced that requirement, the courts …

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Climate Litigation 2020

Here’s the state of play and some thoughts about the future.

Trump Administration has been a fertile source of litigation. With the election only about three months away, this seems like a good time to see how things stand in climate-related case.  In a nutshell, climate litigation has been a growth industry under Trump, and the Administration has done poorly in court. The Current State of …

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Wasting Away in Methaneville

Another Trump rollback gets slapped down in court.

A week ago, a federal district court overturned yet another ill-conceived rollback by the Trump Administration. The case, California v. Bernhardt, involved releases of methane, a potent greenhouse gas. The legal flaws in the rollback by the Bureau of Land Management, are all too typical of the Administration’s work product. The Administration has repeatedly lost …

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