administrative law
Science and Democracy
The scientific process is crucial for a well-functioning democracy.
Beyond its utility, science also models some important features of democracy. It aspires to a marketplace of ideas in which everyone with the needed background knowledge can participate, and in which conclusions are based on debate and data rather than power. As a recent D.C. Circuit case illustrates, the law calls on government agencies to make decisions in the same, considering all the scientific evidence and arguments, then providing a reasoned explanation for its decision.
CONTINUE READINGTrump’s Baffling Free Pass for Coke Oven Pollution
Even for the Trump Administration, this seems really weird.
Trump just gave coke ovens a free pass for their toxic air pollution. What makes this so weird is not Trump’s reversal of a public policy protecting public health or of an action taken under Biden. Both of those are routine these days. Nor is it weird that Trump did so without the slightest factual basis. That’s also par for the course these days. What is weird is doing this after Trump’s own EPA director, who has no evident scruples about favoring industry, said no. There is no indication Trump was even aware of this fact. And it is even weirder, in that industry didn’t have a compliance problem in the first place and would save only pocket change from the postponement.
CONTINUE READINGTurning Conservative Legal Theories Against Trump
Is the risk of legitimizing bad ideas worth it? Maybe so, under the circumstances.
Conservatives have been obsessed with the idea of a runaway federal government crushing everything in its path. They’ve been successful in promoting ideas to rein in Leviathan, at a time when by our lights the government actually was behaving very reasonably. But now we really do have a rampaging federal government. Conservative ideas could be very useful tools right now, and we shouldn’t hesitate to use them.
CONTINUE READINGThe Tariff Case & Environmental Law
The Court’s ruling could open doors legally for some future environmental actions.
In passing a new statute, is Congress endorsing judicial rulings under the old one? Do restrictions on the regulatory powers of administrative agencies apply to foreign affairs or Presidential actions? Can courts review a President’s emergency actions? The oral argument in the Trump tariff case will provide clues into the Justice’s thinking on these key issues. The ultimate decision will have implications on other topics like environmental law. Here’s a roadmap to the issues.
CONTINUE READINGReinventing NEPA
What do we really want NEPA to do? And what’s the best way to do it?
Imagining reform legislation from Congress is difficult, but it’s worth imagining, if only as a thought experiment, how we could do better. I would suggest we start by asking what we can expect NEPA to accomplish after fifty years of judicial decisions and agency practice – and whether there are better ways of accomplishing those things.
CONTINUE READINGThe Forgotten Constitution
There’s a lot more than the “executive power” in there.
To hear Trump & Co., you might think that the Constitution was one sentence long, with that sentence vesting the executive power in the President. That’s the theory behind his efforts to remake the government – including environmental regulation – single-handedly. But there’s a lot more in there. Much of that forgotten language is directly relevant to the presidential actions that are now shaking the government, including environmental governance.
CONTINUE READINGCan California Try Again with Vehicle Pollution Limits?
A new Sixth Circuit decision provides encouragement.
In May, Congress effectively killed the most recent efforts by California to clean up its vehicle fleet. Although many people seem to have assumed the contrary, this may not be the end of the road for California regulators. A new court of appeals decision is an encouraging signal that California may be able try again when the political forces in DC are less militantly anti-environmental.
CONTINUE READINGThe Imperious Presidency
Executive Orders by Biden and Trump speak volumes about their perspectives.
It’s not a surprise that Trump has little respect for expertise and immense antagonism toward those he views as his enemies. What’s striking, however, is that way that these attitudes leak into even the most formal government documents, where they shape the official justifications for presidential actions. To borrow a phrase from Justice Scalia, sometimes a wolf comes in sheep’s clothing. But “this wolf comes as a wolf.”
CONTINUE READINGEmergency Powers Aren’t What They Used to Be
In the post-WW2 era, courts bent over backwards to accomodate emergency actions. Not true today, as Trump is finding out.
In mid-century America, emergency powers were truly potent. But those days are gone. In his two terms as President, Trump has declared 21 national emergencies, including eight since January 20. This glut of “emergencies” can only further discredit the whole concept. He and his advisors seem to see those as creating nearly magical legal powers, allowing them to deport people without hearings, run roughshod over environmental safeguards, and impose tariffs willy-nilly. They are probably in line for a disappointment. Judges are no longer in awe of emergency powers.
CONTINUE READINGEnvironmental Rollbacks: Will the Trump Administration Overplay Its Hand?
The odds are good that Trump agencies will go too far out on a limb.
The Trump Administration’s tendency to rely on bold legal arguments rather than detailed technical ones is a disadvantage in court. Courts defer to agencies on factual matters, especially those that involve technical expertise. Now that Chevron has been overruled, however, legal arguments by agencies don’t get the same deference. Thus, the chances of a judicial reversal are higher when the agency relies on purely legal grounds.
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