judicial review

A 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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The Flight of the Bumblebee

The Trump Administration loses an environmental case. Again.

Last Friday, the Fourth Circuit halted efforts to build a natural gas pipeline because the Administration had done such a lousy job of showing its compliance with the Endangered Species Act. This was one of the Administration’s many losses in court. The case involved a perfect example of “arbitrary and capricious” decision making, to use …

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Endangered Deference

The Supreme Court’s recent, misguided, Weyerhaeuser decision displays the Court majority’s hostility to agency expertise

Cross-posted from The Regulatory Review In Weyerhaeuser v. US Fish and Wildlife Service, a unanimous Supreme Court, with Justice Gorsuch not participating, indicated that it is not inclined to defer to agency expertise. Judicial power dominates this Court’s approach to administrative law, not just in the context of Chevron deference, and not just within the …

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Justice Gorsuch versus the Administrative State

Does the Gundy decision spell doom for modern government?

Gundy v. United States was a case involving a fairly obscure statute regulating sex offenders, but some have seen it as a harbinger of the destruction of the modern administrative state.  In a 4-1-3 split, the Court turned away a constitutional challenge based on a claim that Congress had delegated too much authority to the …

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Regulatory Reform: A Progressive Vision

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 …

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Two Years and Counting: Looking Forward

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 …

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Progressive Regulatory Reform

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 …

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What’s Ahead for Trump’s Pro-Coal Rule?

Be prepared: this is going to remain a live issue for at least two years.

You’ve already heard a lot about Trump’s pro-coal ACE rule. You’re likely to keep hearing about it, off and on, throughout the next couple of years, and maybe longer. I’ve set out a rough timetable below, and at the end I discuss some implications. Step 1: The Rulemaking  Aug. 2018 Notice of proposed rule issued  …

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Trump Loses Another Big Court Case

Ninth Circuit reverses Pruitt decision to allow a dangerous pesticide on food.

Last Thursday, the Ninth Circuit ruled that Scott Pruitt had no justification for allowing even the tiniest traces of a pesticide called chlorpyrifos (also called Lorsban and Dursban) on food. This is yet another judicial slap against lawlessness by the current Administration. Chlorpyrifos was originally invented as a nerve gas, but it turns out that …

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Agency U-Turns

Policy reversals are likely to be more frequent in an increasingly polarized society. How should courts respond?

The Trump Administration is doing its best to wipe out Obama’s regulatory legacy. How will the courts respond to such a radical policy change? The philosophical clash between these last two Presidents is especially stark, but this is far from being the first time that agencies have taken U-turns. This is the fifth time in …

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