administrative law
The D.C. Circuit’s Sleeper Decision in CBD v. EPA
Before I even get to the majority opinion in Center for Biological Diversity v. EPA, a quick word about the concurring opinion by Judge Brett Kavanaugh. Kavanaugh may be the most outspoken conservative on a court composed almost entirely of Republican appointees. So what he has to say about climate change is really noteworthy: In …
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CONTINUE READINGSupreme Court Grants Cert. in Interstate Pollution Case
The Supreme Court agreed this morning to review a D.C. Circuit opinion that had struck down EPA’s effort to curb interstate pollution. This is welcome news. As I wrote when the lower court ruled: Now that I’ve had a chance to read the lengthy opinion in EMR Homer City Generation v. EPA, I’m struck by …
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CONTINUE READINGMemo to EPA: It’s Illegal to Respond to Letters from Senators (at least in the Eighth Circuit)
I thought about entitling this post “Lamest Judicial Opinion of the Year.” The case is called Iowa League of Cities v. EPA. This Eighth Circuit opinion says that two letters from EPA to a U.S. Senator are legally binding agency rules, The court then solemnly invalidates the letters because EPA failed to get public notice and …
CONTINUE READINGPracticing Environmental Law: The World of New Lawyers
The National Council of Bar Examiners has just finished a fascinating survey of what lawyers do in their first three years of practice. Some of the most interesting findings relate to environmental law. About five percent of new lawyers report that their practice areas are environment or natural resources. As of a couple of years …
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CONTINUE READINGConfessions of a Regulatory Czar
The official title of the White House’s regulatory czar is deceptively abstruse, the Director of the the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB). But OIRA plays a crucial role in government policy by reviewing all major proposed regulations. Environmentalists have long decried OIRA as a place …
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CONTINUE READINGRevisiting the Origin of the Administrative State — Not a 20th Century Invention After All
Every institution seems to have a creation myth of some kind. Many people think that the federal bureaucracy was a creation of the New Deal, which deviated from the Framers’ vision of small government. More sophisticated people realize that the administrative state began in the late 19th century with the creation of the Interstate Commerce …
CONTINUE READINGIs Bureaucratic Leadership an Oxymoron?
History shows that that those much-maligned bureaucrats are sometimes the unsung heroes of policy improvement.
CONTINUE READINGU.S. Supreme Court Justices Are on USEPA’s Case
You can’t blame the U.S. Environmental Protection Agency of late for feeling it’s under siege. All of the current Republican presidential candidates are regularly excoriating EPA on the campaign trail, and Congress has conducted oversight hearings and threatened all sorts of legislative action designed to clip EPA’s regulatory wings. Now the U.S. Supreme Court appears …
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CONTINUE READINGUpdate on Mountaintop Removal: Gov. Manchin Sues EPA
West Virginia Governor Joe Manchin announced Tuesday that West Virginia is filing suit to, as the Governor put it, stop EPA’s “attempts to destroy the coal-mining industry and our way of life.” The Charleston Gazette has a good summary of the suit. The suit seeks to invalidate EPA’s recent review of Clean Water Act permits …
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CONTINUE READING(Vermont) Yankee Go Home!
You may recall the Supreme Court’s decision in the Vermont Yankee case. It was a major administrartive law decision. Prior to Vermont Yankee, the D.C. Circuit and some other courts had been experimenting with an approach to judicial review which focused on helping to improve agency procedures, rather than reviewing the substance of the agency’s …
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