judicial review
Eight Setbacks for Trump
Trump hasn’t had things all his own way. Not by any means.
The Trump Administration has begun some bold initiatives but it’s too soon to know how they will fare. It also had some early success with blocking Obama’s regulation in Congress. But it has also had some significant setbacks, with courts or Congress rejecting positions it had embraced. Those setbacks make it clear that, bad as …
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CONTINUE READINGWhen is unoccupied habitat “critical”?
The Supreme Court will hear a challenge to the critical habitat designation for the dusky gopher frog
Controversy and litigation have been pervasive since adoption of the Endangered Species Act in 1973, but the Supreme Court has been a relatively minor player in the law’s development. By my count, the Court so far has only addressed the substantive merits of an ESA claim three times (in TVA v Hill, 437 US 153 …
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CONTINUE READINGEverything You Always Wanted to Know About the Chevron Doctrine
This doctrine, formerly known only to specialists, will play a large role under Trump.
During the Gorsuch nomination, there was a lot of talk in the press about the Chevron doctrine. Most people have never heard of this doctrine, and only a few are aware of all the nuances. As the Trump Administration’s rulemaking efforts come before the courts, we’re going to be hearing a lot more about it. …
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CONTINUE READINGNews Flash: 10th Cir. Rebukes Government Over Coal Leases
Today’s important ruling on standing, public lands, and climate change
In an important ruling this morning, the Tenth Circuit rejected the government’s assertion that it could ignore carbon emissions tied to renewing coal leases. In WildEarth Guardians v. BLM, the court also rejected the mining company’s attack on the standing of environmental groups to raise this claim.The mines in question are in the Powder River …
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CONTINUE READINGClimate Policy in the Bay State
With a nudge from its courts, Massachusetts is pushing back against Trump’s climate agenda.
Even in 2006, it was clear that climate change is a serious threat to Massachusetts. That year, in its path-breaking decision on climate change, the Supreme Court gave Massachusetts standing to challenge the Bush Administration’s refusal to regulate greenhouse gases. The basis for standing was impact of sea level rise on the state. It now …
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CONTINUE READINGPushing Back Against Presidential Power
It’s time to rethink the amount of power presidents have claimed over regulatory policy.
If there was ever a time to think hard about presidential power, that time is now. That’s a very broad question, but the part most relevant for this blog is the President’s role in controlling government regulation. There is no question that presidents have and will continue to have a huge influence on regulatory policy. …
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CONTINUE READINGA Case of Administrative Bad Faith
The D.C. Circuit slaps down an abuse of power by Trump’s EPA.
On Monday, the D.C. Circuit dealt a setback to Scott Pruitt’s deregulation efforts in Clean Air Council v. EPA. The case involved a tricky procedural issue. But the substance was simple: EPA, under Pruitt, had abused a reconsideration procedure under the Clean Air Act to stay a regulation for 90 days, when it had no …
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CONTINUE READINGA Yawning Credibility Gap
Courts are supposed to defer to agencies. But that happens less often when an agency lacks credibility.
Two themes in the Trump Administration are distrust of experts and a willingness to overrule them on ideological grounds. But undermining the government’s claims to expertise may come back to haunt the Administration. Because Trump is marginalizing government scientific and economic expertise, his regulatory initiatives may get less deference from the courts. There is already a great deal of concern …
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CONTINUE READINGTurnabout is Fair Play
The same tools that have been used to stymie the Obama Administration can be turned against Trump.
Conservatives and industry have perfected some legal tools to block regulation by the Obama Administration. Those tools can be turned against them, by using the same tools to block anti-regulatory moves by the Trump Administration. As a professor, I don’t necessarily agree with all of them. But as a lawyer, I wouldn’t hesitate to use them …
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CONTINUE READINGReviewing the REVIEW Act
This bill is in the running for the all-time “lame legislation” prize.
You can tell right away that this bill — passed by the House only yesterday — is a really clunker. The title is Require Evaluation Before Implementing Executive Wishlists Act of 2016. Really, that’s the best they could come up with? But it only gets worse. The bill provides that no “high-impact rule” can go …
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