regulatory state
Is the Sky Falling? Chevron, Loper Bright, and Judicial Deference
Perplexed? Worried? Here’s a guide to a fraught area of law.
If you’re confused about the Supreme Court’s ruling, you’re not alone. Scholars will be discussing the recent ruling for years. It clearly will limit the leeway that agencies have to interpret statutes, meaning less flexibility to deal with new problems. But unlike many commentators, I don’t think the sky is falling. I was teaching environmental …
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CONTINUE READINGJudicial Deference to Agencies: A Timeline
Decisions about judicial deference to agencies on legal issues didn’t begin or end with Chevron.
The Supreme Court is about to make a major decision about the balance of power between courts and agencies like EPA. Here’s what you need to know about the history if the issue to understand what’s going today.
CONTINUE READINGHow I Learned to Stop Worrying and Love OIRA
OIRA may have had its problems. What we have right now is much worse.
If you’re like most environmentalists, you probably don’t have a high opinion of OIRA, the White House office that’s supposed to oversee regulations. (For those who are new to this, OIRA stands for the Office of Information and Regulatory Affairs.) The complaints are legion: that OIRA lacks transparency, that it acts as a back door …
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CONTINUE READINGThe Witching Auer
The Supreme Court rules on deference to agency interpretations.
The Court’s opinion in Kisor v. Wilkie was eagerly awaited by administrative law experts. It is one skirmish in the ongoing war over deference to agencies. In this case, the issue was whether to overrule the Auer doctrine, which requires courts to defer to an agency’s reasonable interpretation of its own regulations. This doctrine, like …
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CONTINUE READINGUnanswered Questions About Cost-Benefit Analysis
We have only fragmentary evidnece about how CBA actually functions in government decision-making.
Considering that people have been debating cost-benefit analysis at least since Reagan mandated its use in 1981, you would think we would have the answers to some basic questions about how it works. Yet we have very fragmentary information, generally based on the perspevtives of people at the agencies or in the White House Office …
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