administrative law
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 It should be repealed.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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CONTINUE READINGEnforcing 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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CONTINUE READINGClimate 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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CONTINUE READINGWasting 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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CONTINUE READINGHappy Birthday, Chevron Doctrine!
The Chevron doctrine has been a keystone of administrative law. But now it’s under siege.
Thirty-six years ago today, the Supreme Court decided the Chevron case. The case gives leeway to agencies when their governing statutes are unclear or have gaps. It’s probably the most frequently cited Supreme Court opinion ever. But now the Chevron doctrine is under fire from conservatives, who used to be its strongest advocates. Here’s how …
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CONTINUE READINGLessons from the DACA Ruling
The Court’s ruling could have important implications for environmental cases.
The Supreme Court’s ruling in Department of Homeland Security v. UC Regents was great news for 700,000 “Dreamers” who would otherwise face deportation. It also has important implications for administrative law — and for environmental law cases in particular. Here are three main takeaways. Requiring Reasoned Explanation. Chief Justice John Roberts reinforced the principle that …
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CONTINUE READINGDC Circuit Restricts “Housekeeping” Regulations
The Trump Administration likes to justify policy initiatives based on vague grants of authority. That’s just become harder.
Earlier today, the D.C. Circuit Court of Appeals decided two cases that add to the legal difficulties the Trump EPA will face in court. The difficulties relate to two proposed EPA rules that attempt to hamstring future efforts to impose tighter restrictions on pollution. Both EPA rules rely on vague, general grants of rule-making authority …
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CONTINUE READINGThe Conservative Assault on Presidential Administration
Are they afraid of “faceless bureaucrats”? Or Democratic Presidents?
Conservatives are on a campaign to reduce agency discretion. They don’t seem to realize that in today’s world, that really amounts to an attack on presidential power. These days, it’s generally not bureaucrats or even cabinet officers who make the real decisions about regulation. It’s the White House. So the campaign against the administrative state …
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CONTINUE READINGEPA v. the Inspector General
Surprise, surprise, EPA has tried to stonewall an investigation.
EPA’s Acting Inspector General Charles J. Sheehan took the extraordinary step last week of notifying Congress that EPA was stonewalling his investigation of potential misconduct involving EPA’s Chief of Staff. This was a gutsy move for Sheehan, especially given the extra vulnerability created by his Acting status. Sheehan, it is worth noting, is a career …
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CONTINUE READINGA Welcome Victory in the D.C. Circuit
This is what it looks like when judges just buckle down and do their jobs.
Last Friday, the D.C. Circuit decided Wisconsin v. EPA. The federal appeals court rejected industry attacks on a regulation dealing with interstate air pollution but accepted an argument by environmental groups that the regulation was too weak. Last week also featured depressing examples of the drumbeat of Trump Administration rollbacks, so it was especially nice …
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