Justice Breyer’s Nuanced Voice in Environmental Law
In a thoughtful, undramatic way, Breyer has turned out to be a valuable supporter for environmental regulation.
Given Justice Breyer’s announced retirement, it seems like a good time to assess his contribution to environmental law. When Bill Clinton nominated him for the Supreme Court, there was a great deal of uneasiness among environmentalists about Justice Breyer. As an academic, he had sounded a cautious note about government regulation, calling for more deliberation …
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More on How the Vaccine Mandate Cases May Impact Climate Policy
How much is the Court likely to prune back EPA’s powers?
In a Friday post, I sketched some thoughts about how the Supreme Court’s vaccine mandate rulings might impact EPA’s power to control carbon emissions. I think it’s worth unpacking both the Court’s opinions a little more and the issues at stake in a pending climate change case, West Virginia v. EPA. The Court ruled in …
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Major Questions About the Major Questions Doctrine
You may not have heard of this doctrine but it’s a big threat to innovative regulations.
Unless you’re deeply immersed in administrative law, you may not have heard of the major questions doctrine. It’s a legal theory that conservative judges have used with increasing rigor to block important regulatory initiatives. The doctrine places special obstacles on agency regulations of issues of “major economic and political significance.” In its initial outing, the …
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A Bad Week for Biden, and for Climate Action
First House progressives, and next conservative Justices, poked a stick in the spokes.
President Biden hoped to go to the international climate summit in Glasgow with momentum behind him. He wanted to reestablish US credibility with concrete progress on climate change. Instead, the ability of the US to take action on climate change is shrouded in doubt. Biden suffered an embarrassing defeat at the hands of members of …
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The Monument to the Unknown Bureaucrat
Yes, there actually is one. It’s in Reykjavík. And here’s why it’s worth pondering.
Working away in anonymity, a cadre of civil servants keeps the machinery of government working. There’s actually a monument in Reykjavík, Iceland to these public servants. It shows someone in a business suit carrying a briefcase — or more specifically, the lower half of the person, with the upper half replaced by a block of …
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Cost-Benefit Analysis: FAQs
Cost-benefit analysis has been a key part of the regulatory process since 1980. Here’s how it works.
Cost-benefit analysis is required for all major regulations. It’s also highly controversial, as well as being a mysterious procedure unless you’re an economist. These FAQs will tell you what you need to know about how cost-benefit analysis (CBA) fits into the regulatory process, how it works, and why it’s controversial. Q: Let’s start with a …
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When Agencies Fail
Lives can be lost when agencies fall down on the job.
What happens when agencies fail in their jobs? People can die. The most dramatic example is the opioid crisis, in which a whole series of state and federal agencies fell short. The result has been hundreds of thousands of deaths. The FDA was one of the prime culprits. It bought into a myth, carefully cultivated …
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The Last Four Years — and the Next Four
How did our predictions about Trump hold up? What should we expect for Biden?
In September 2017, Eric Biber and I published a threat assessment after the first 200 days of the Trump Administration. For those who have buried their memories of that time, those were days of shock and despair about the future of environmental protection (and much else). It seems time to bring our report up to …
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A Key White House regulatory office has remained unfilled for a record time.
The Biden Administration is looking to make big regulatory changes, not least regarding climate change. Yet the White House office overseeing regulations is vacant. The obscurely named Office of Regulatory Affairs and Information (OIRA) has to sign off on all significant regulations. Even the dilatory Donald Trump had nominated a permanent administrator by July of …CONTINUE READING
Another Worrisome Signal from the Supreme Court
Phrases that should frighten environmentalists: “Shadow docket ” “Major questions doctrine”
Last Thursday, the Supreme Court struck down the CDC eviction moratorium in the Alabama Association of Realtors case. The case may seem far removed from environmental law, but it has some troubling implications for future EPA regulatory initiatives. The process used by the Supreme Court to intervene is as significant as the ruling itself. This …
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