judicial review
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 …
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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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CONTINUE READINGComparing 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 …
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CONTINUE READINGCourt 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 …
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CONTINUE READINGNinth Circuit affirms that ignorance is bliss
Lack of information is a continuing problem for environmental policy. In part, that’s unavoidable; we’ll never know enough about the world around us to be confident that we’re making the best choices. In part it is because potential regulatory targets control some needed information. And in significant part it’s because decisionmakers have a tendency to …
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