judicial review
A 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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CONTINUE READINGThe 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 …
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CONTINUE READINGUARG 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 …
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CONTINUE READINGThe 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 …
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CONTINUE READINGMemo 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 …
CONTINUE READINGRevisiting 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 …
CONTINUE READINGThe 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 …
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CONTINUE READINGDon’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 …
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