judicial review
The National Security Scam
Just about everything gets labeled an emergency or national security threat these days. The courts may be starting to catch on.
The Trump Administration invokes national security and declares national emergencies to justify all manner of actions such as excusing violation of environmental laws. Past Administrations have gotten strong deference for their emergency claims. But this one may be quickly using up its credibility. You can pass a certain number of counterfeit bills, but a flood of counterfeits is hard to hide.
CONTINUE READINGWhither Permitting Reform for NEPA?
Engaging with the key questions for NEPA in any permitting reform bill
This interview by Heatmap News with a leading actor (Daniel Palken at the Arnold Foundation) in the permitting reform debates is informative and productive – both on the status of those talks right now, and on their history and why they are important. Here I just want to focus on one aspect of the interview …
Continue reading “Whither Permitting Reform for NEPA?”
CONTINUE READINGA Trump Rollback Hits a Roadblock
A Trump gambit to undo a key air pollution limit turned out to be a flop.
The Administration has moved more slowly, however, on actually wiping Biden’s regulations off the books. On Friday, the D.C. Circuit decisively rejected one important effort by the Trump EPA. In doing so, it saved (at least for now) a crucial protection for public health. While it’s not impossible to imagine that the Supreme Court might intervene, doing so would probably require it to hear oral argument, given the importance and complexity of the case. That’s unlikely to happen quickly and may not happen at all,
CONTINUE READINGFive Lessons from the Tariff Case
What can the case teach us about litigating environmental cases against Trump?
Learning Resources v. Trump, the recent tariff ruling, doesn’t say anything direct about environmental cases. But there are a series of useful lessons for environmental litigators. One obvious one is that the conservatives aren’t all “in the tank” for Trump (though Alito and maybe Thomas seem have gone pretty MAGA). Trump’s nasty insults of the conservatives who ruled against him probably won’t bring them back onto the Trump train. His effusive praise for the three conservatives who voted for the tariffs may even increase frictions within the supermajority. Here are five more lessons.
CONTINUE READINGScience 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 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 READINGProblem solved?
Bipartisan proposal for permitting reform from Problem Solvers Caucus is a good first step, but has much more work to do
The permitting reform conversation continues in Congress – this time with a long set of proposals from the bipartisan Problem Solvers Caucus, based on a range of conversations with different stakeholders and interest groups. There is much that is good in this set of proposals, but there are also proposals that require more thought, or …
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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.
CONTINUE READINGCorroding the Separation of Environmental Powers
“Who decides?” is the first question to ask about a policy issue. Trump’s answer is “me.”
Biden took actions that federal courts ruled exceeded statutory authority, raised separation of powers issues, or threatened federalism. The difference is that Trump has used brute-force attacks on agencies plus extortion against states rather than taking overt legal actions that courts can review.
CONTINUE READINGThe Downsides of Ping Pong Governance
Judicial review, by moderating policy swings, may be important to facilitating long-term investment
I’ve written about debates over permitting reform and other versions of regulatory streamlining to support the development of infrastructure that we need to address climate change. Another view, well articulated by Nicholas Bagley at University of Michigan, is that the problem is more fundamental: Excessive focus on governmental procedures and process, reinforced by searching judicial …
Continue reading “The Downsides of Ping Pong Governance”
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