judicial review

Reviewing 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 …


The Slow Pace of Rulemaking

Rulemakings take a long time. We don’t really know what causes the delays.

A recent study by Public Citizen reports that it takes about 2.5 years to issue an economically significant rule, starting from the time the rule is first listed in the regulatory agenda. There are major differences between agencies – an economically significant rule takes EPA almost four years, rather than the 2.5 years needed by …


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 …


The Lost World of Administrative Law

The regulatory process has become more opaque and less accountable. We need to fix that.

Every year, thousands of law students take a course in administrative law.  It’s a great course, and we wish even more students took it.  But there’s a risk that students may come away with a vision of the regulatory process that is increasingly disconnected with reality.  Worse, the leading judicial opinions on the subject suggest …


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 …


Revisiting the Origin of the Administrative State — Not a 20th Century Invention After All

Every institution seems to have a creation myth of some kind. Many people think that the federal bureaucracy was a creation of the New Deal, which deviated from the Framers’ vision of small government.  More sophisticated people realize that the administrative state began in the late 19th century with the creation of the Interstate Commerce …


The D.C. Circuit’s Activist Ruling on Interstate Pollution

About ten days ago, the D.C. Circuit struck down EPA’s effort to establish a cap-and-trade system for pollutants that cross state lines. Now that I’ve had a chance to read the lengthy opinion in EMR Homer City Generation v. EPA, I’m struck by the aggressiveness of the court’s intervention, which goes well beyond the customary …


Don’t Knock EPA’s Knack for NAAQS

On Tuesday, the D.C. Circuit decided American Petroleum Institute (API) v. EPA, an interesting case dealing with nitrogen oxide (NO2) levels.  The standard is supposed to include a margin of safety.Under the Clean Air Act, EPA sets National Ambient Air Quality Standards (NAAQS) for airborne substances that endanger human health or welfare.  EPA set such …


Comparing Canadian and US Environmental Law: Judicial Review

In a prior post, I talked a little about proposed changes to Canadian environmental laws that would roll back significant protections and procedural requirements.  I also talked about some of the differences between Canada and the United States that might be the basis for very different histories of environmental law in the two countries.  But …


Court upholds polar bear “threatened” status

The first big opinion in the polar bear listing case is out. Score two for the Fish and Wildlife Service: the agency’s decision to list the bear as threatened under the Endangered Species Act prevailed against challenges from the Center for Biological Diversity on one side and the state of Alaska and hunting groups on …