Administrative Law
The Rise and Fall of an Energy Emergency
Frantic federal efforts to keep uneconomical coal plants from closing met their doom in a new court decision.
According to the Department of Energy, decrepit coal-fired power plants had to be kept open to avoid “unacceptable reliability risks within five years” unless something changed. You could be forgiven for thinking that calling this hypothetical situation an emergency was something of a stretch. The legality of the orders reached the D.C. Circuit in a Michigan case involving a coal plant that seemingly everyone except Trump wanted to close. The court found no basis for the order. The opinion avoids directly calling out the government’s abuse of power. Instead, it keeps focused on basic issues of statutory interpretation. The statute clearly didn’t give DOE anything like the authority to take over the power system that it was claiming.
CONTINUE READINGThe National Security Scam
Just about everything gets labeled an emergency or national security threat these days. The courts may be starting to catch on.
The Trump Administration invokes national security and declares national emergencies to justify all manner of actions such as excusing violation of environmental laws. Past Administrations have gotten strong deference for their emergency claims. But this one may be quickly using up its credibility. You can pass a certain number of counterfeit bills, but a flood of counterfeits is hard to hide.
CONTINUE READINGStrictly Ballroom
How will the Supreme Court’s opinion impact environmental standing?
There’s a lot of concern about how the Supreme Court’s opinion in the ballroom case could impact environmental law. In the majority’s view, the problem was that the plaintiff lacked standing. The concern is that the Court may have cut back standing doctrine in a way that will block many environmental cases. You never know what the Court might do down the road, but I think the opinion itself is much more limited.
CONTINUE READINGMoving Environment Assessment Outside the Permit Process
Streamlining is good but shouldn’t become an excuse for just ignoring the environment.
I’m very sympathetic to arguments that we’re unable to build important infrastructure, whether housing or transmission, because we have too much red tape. There’s a real temptation, however, to throw out the environment a baby with the procedural bathwater. It’s hard not to suspect that sometimes that’s the point and permit reform is just an effort to avoid considering environmental harms. Be that as it may, it’s easy to embrace restrictions on environmental reviews without giving enough thought to what we may be losing – and how we might be able to get the best of both worlds. As Eric Biber has discussed in many of his posts, many proposed permit reforms are not well-designed to achieve their ends. A more fundamental problem is that we’re not always sure we’re addressing the right part of the problem.
CONTINUE READINGInterpreting the Clean Air Act After Chevron’s Demise
A recent Ninth Circuit case requires states to do more to achieve clean air goals.
Last week, the Ninth Circuit decided Committee for a Better Arvin v. EPA, which is both a significant air pollution case and an interesting case study in how the Supreme Court has changed judicial review of agency actions. Applying what it considered to be the best interpretation of an ambiguous statute, the Court required tougher air pollution controls for the San Joaquin Valley. The dissent argued that the decision would be a disaster in terms of policy. But is that even relevant under the Loper Bright ruling?
Bring Back “Trump Classic”
The original version of Trump was bad. The current version is much worse.
Trump has succeeded in his second term in making every past President including even himself look better. We’re now almost a year and a half into Trump’s second term. From almost every point of view, it’s worse than his first term. It reminds me of the “New Coke” that Coca Cola once introduced, which was a disaster that led to the reintroduction of what was then dubbed “Coke Classic.” Trump Classic was committed to fossil fuels and eliminating environmental protections. But in almost every respect, his policies were less radical and his methods were less drastic.
Project 2025 Was Awful. Trump Has Been Worse.
Trump disowned Project 2025. In retrospect, it seems like he considered it too moderate.
When the Heritage Foundation released Project 2025, there was a big hullabaloo, and Trump quickly disowned it. Bad as it was, however, it appears Project 2025 apparently failed to anticipate the full sweep of Trump’s second term. Many of Trump’s actions mirror Project 2025 recommendations, but in some key areas he’s gone much further. Here …
Continue reading “Project 2025 Was Awful. Trump Has Been Worse.”
CONTINUE READINGWhy Does the Trump Administration Keeping Attacking Science?
Apparently, the Administration views science as fatally infected with woke ideas and lacking much other value.
Make no mistake, the Trump Administration is engaged in a serious, carefully honed, effort to undermine American science. The National Science Foundation has lost a third of its staff, while the National Institutes of Health have lost 20%. EPA’s science office is being shuttered. Trump’s proposed budget included a 54% cut for NSF, 12% for NIH, and 46% for NASA’s space research. And last week, the government proposed changes to politicize research funding decisions at the expense of merit review. It also proposes making continuation of long-term funding dependent on political whim, which will drive researchers away from projects taking longer commitments.
CONTINUE READINGTrump versus Cost-Benefit Analysis
EPA’s disavowal of CBA is the culmination of a longer assault.
EPA recently said it would no longer try to quantify the harms done by the two most serious, widespread air pollutants. Given that these are the most fully understood of all environmental impacts, it’s not clear what future regulations, if any, might be still subject to cost benefit analysis. This didn’t come out of the blue. Rather, it is the culmination of a series of steps that began when Trump took office in 2017. By 2018, Trump’s executive orders and other administration actions had led me to write a post about “the rise of benefit-blind analysis.” Little did I know what was coming down the road.
CONTINUE READINGThe Story of California’s Advanced Clean Trucks Regulation
New CLEE report & webinar tells the story of this first-of-its-kind supply-side regulation for zero-emission trucks
California has been a global pioneer on electric vehicles, and that leadership extends to zero-emission trucks. To address the pollution and disproportionate impacts on disadvantaged communities, the California Air Resources Board (CARB) adopted the first-of-its-kind Advanced Clean Trucks (ACT) regulation in 2020. This landmark standard required truckmakers to begin selling zero-emission versions (such as battery …
Continue reading “The Story of California’s Advanced Clean Trucks Regulation”
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