A new appointment would make Justice Kavanaugh the swing voter. Here’s what that would mean for environmental law.
A new appointment by Trump would shift the Supreme Court well to the right, making Brett Kavanaugh the swing voter in many cases. Kavanaugh has clear views about the powers of agencies like EPA. With him as the swing voter, the main strategy used by Obama to make environmental progress would be off limits for …CONTINUE READING
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 …CONTINUE READING
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 …CONTINUE READING
Trump thinks he can tell courts how to interpret NEPA. He’s wrong.
White House has just released its proposed revisions to the rules about environmental impact statements. The White House Council on Environmental Quality (CEQ) simply does not have the kind of power that it is trying to arrogate to itself. The proposal is marked by hubris about the government’s ability to control how the courts apply the …CONTINUE READING
Trump is proposing big changes to CEQ regs. But they may not matter.
The Trump Administration is trying to gut the current White House rules on environmental impact statements. Some people view this move as a death blow to an important environmental tool. Here’s what Trump is trying to do and why it may not matter as much as people fear. As to what Trump & Co. are …CONTINUE READING
The Supreme Court rules on deference to agency interpretations.
The Court’s opinion in Kisor v. Wilkie was eagerly awaited by administrative law experts. It is one skirmish in the ongoing war over deference to agencies. In this case, the issue was whether to overrule the Auer doctrine, which requires courts to defer to an agency’s reasonable interpretation of its own regulations. This doctrine, like …CONTINUE READING
A new Issue Brief provides practical proposals on how to improve regulation.
For over three decades, “regulatory reform” has been an aspiration chiefly for opponents of regulation. Everyone agrees that regulation could be improved. But too many proposals for change are designed to undercut protection of the environment, public health, and civil rights. What would regulatory reform look like if you actually want to improve regulation rather …CONTINUE READING
What’s the prognosis for the second half of Trump’s term?
In terms of regulatory policy, the second half of Trump’s term is shaping up to look a lot like Obama’s final two years in office. Congress won’t be doing much to advance Trump’s environment/energy agenda, as was the case with Obama. So, like Obama, Trump’s focus will be on administrative action, particularly regulatory initiatives (or …CONTINUE READING
Suppose that, like conservatives, progreessives started thinking about reforming the regulatory system. What would that look like?
Until recently, you could be a very well informed American – a lawyer, even – without ever having heard of the Chevron doctrine. That has changed enough that last month the New Yorker had a “Talk of the Town” essay discussing Kavanaugh’s views of the Chevron doctrine. The reason for the attention to Chevron is …CONTINUE READING
EPA’s latest proposed rollback relies heavily on the Chevron Doctrine.
The ACE rule, The Trump Administration’s proposed rule for carbon emissions in the carbon sector, purports to regulate greenhouse gases from power plants. Its real goal seems to be minimizing the burden on coal-fired plants. Legal Planet has already carried some excellent posts about the proposal’s policy flaws. I’d like instead to talk about its …CONTINUE READING