administrative law

UARG Strikes Back

Will UARG Persuade the Supreme Court to Overturn New Air Quality Standards?

“UARG” sounds like the name of a monster in a children’s book or maybe some kind of strangled exclamation.  But it actually stands for Utility Air Regulatory Group, which represents utility companies in litigation.  UARG did well in two important Supreme Court cases last year, winning part of the case it brought against EPA climate change …

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FDA Discretion and Animal Antibiotics

FDA has stalled for 30 years in regulating antibiotics in animal feed. A court says that’s O.K.

The FDA seems to be convinced that current use of antibiotics in animal feed is a threat to human health. But the Second Circuit ruled recently in NRDC v. FDA that EPA has no duty to consider banning their use.  That may seem ridiculous, but actually it’s a very close case legally.  The court’s discussion of Massachusetts …

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A win for EPA on mountaintop removal

D.C. Circuit upholds Enhanced Coordination Process, refuses to review agency guidance

The D.C. Circuit has rejected a challenge to consultation procedures developed by the EPA and Corps of Engineers for reviewing mountaintop removal mining permits and to EPA’s guidance for reviewing permits issued by the Corps or state permitting agencies. Because it rests on standard administrative law, the decision shouldn’t merit comment. But it does, because …

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Judicial “Smoke Signals” and the 111(d) Rule

In an earlier post, I suggested that EPA’s decision about how broadly to write the final version of the 111(d) rule might be affected by the Supreme Court’s decision in the pending UARG case.  I made the suggestion without much explanation, and it apparently didn’t come across very clearly.  So I thought it would be worth …

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Protecting the Safety of Food Imports

Food safety, particularly for imported foods, is a serious problems.  Help is on the way — but slowly, very slowly. According to the NY Times: About 15 percent of food that Americans eat comes from abroad, more than double what it was just 10 years ago, including nearly two-thirds of fresh fruits and vegetables. And …

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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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Supreme 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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Memo 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 …

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Practicing 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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Confessions 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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