Administrative Law
Noem’s Disastrous Reign at FEMA
The post-Noem agency is in desperate need of rebuilding.
It’s going to be very difficult for a new DHS head to shift course given the message coming from the White House. But without a change in the direction, a weaker FEMA will increase the country’s vulnerability to the disaster risks posed by an increasingly unruly climate. Noem has done great damage to FEMA, leaving the country more vulnerable to disasters. Trump’s desire to abolish the agency isn’t helping. Among her failings, her damage to the Federal Emergency Management Agency (FEMA) may not be the worst, but it’s far from the least. Restoring the FEMA will be a major undertaking and a heavy lift in an administration best known for agency destruction.
CONTINUE READINGThe Trump Governance Playbook, in War and Peace
Going to war is very different than regulating pollutants, but the Trump Administration approaches both decisions similarly.
Trump’s approach to governance has some roots in previous practice, but it is not what Americans generally have been used to. It is a governance style that centralizes power not only within the executive branch, but in the executive branch at the expense of Congress, and in government rather than the public. Some might argue that this is more democratic since only the President is nationally elected. Others take a different view. There’s no question, however, that the governance system is in a very different mode of operation in all spheres, foreign and domestic.
CONTINUE READINGFive Lessons from the Tariff Case
What can the case teach us about litigating environmental cases against Trump?
Learning Resources v. Trump, the recent tariff ruling, doesn’t say anything direct about environmental cases. But there are a series of useful lessons for environmental litigators. One obvious one is that the conservatives aren’t all “in the tank” for Trump (though Alito and maybe Thomas seem have gone pretty MAGA). Trump’s nasty insults of the conservatives who ruled against him probably won’t bring them back onto the Trump train. His effusive praise for the three conservatives who voted for the tariffs may even increase frictions within the supermajority. Here are five more lessons.
CONTINUE READINGBring Back the Legislative Veto!!
Restoring Presidential-Congressional balance also restores the Constitution’s vision of government — and could pay environmental dividends
One line that stood out in the Supreme Court’s opinion in the tariff case, Learning Resources v Trump, was this one from Neil Gorsuch: Once this Court reads a doubtful statute as granting the executive branch a given power, that power may prove almost impossible for Congress to retrieve. Any President keen on his own authority (and, …
Continue reading “Bring Back the Legislative Veto!!”
CONTINUE READINGDissecting EPA’s Endangerment Repeal: Series Wrap-Up:
Here’s what you need to know to understand the upcoming legal battles.
Yesterday was the last of five Legal Planet posts on EPA’s repeal of the Endangerment Finding, which it based on legal arguments that it has no power to regulate vehicle emissions of greenhouse gases. The series began with a quick overview of the issues. The remaining posts focus on the reasons that EPA was right to issue the Endangerment Finding in the first place in 2009, the legal precedents supporting the Endangerment Finding. and the impact of the repeal on future climate actions. The bottom line is that EPA was right to issue the Endangerment Finding and wrong to repeal it.
CONTINUE READINGHas Trump Actually “Driven a Dagger Through the Heart” of Climate Policy?
Lee Zeldin
Don’t jump to conclusions based on the Administration’s spin operation.
there’s a good chance that the repeal of the Endangerment Finding will be reversed by the courts. That would ground federal climate policy even more firmly in the law, so the Administration is taking a gamble. Saying they’ve one is as premature as a roulette player who’s just put all their chips on one number announcing that they’re now rich before the wheel has even started turning. Even if the courts do uphold the repeal, a lot will depend on just what legal theory the judges adopt. Some legal theories would slam the door on efforts by future Democratic presidents. Others would leave room to move forward.
CONTINUE READINGThe Tariff Decision and the Major Questions Doctrine
The scope of the doctrine is even more confused now than before.
The tariff decision is good news in terms of checking arbitrary presidential actions, but the opinions fell short in one important area. An important argument against the tariffs was based on the Major Questions Doctrine (or MQD). That doctrine applies whan a government action has “vast political and economic significance.” If the government claims that Congress gave it the power to take such an action, it must point to clear statutory language. The doctrine is controversial in part because no one is quite clear on its basis or when it applies. The tariff decision only made that worse. The Justices took many different positions on the doctrine, deepening the confusion.
CONTINUE READINGThe Overlooked Precedent Supporting EPA Regulation of Greenhouse Gases
Even Roberts and Scalia agreed that Mass. v. EPA is the law
An important precedent has been overlooked in the coverage of the Trump EPA’s repeal of the 2009 Endangerment Finding. The 2009 finding relied was based on , in which the Court had held that the Clean Air Act covers air pollution and directed EPA to determine whether greenhouse gases are harmful. One reason to worry about the litigation is that the conservatives Justices all dissented from Massachusetts v. EPA over the repeal. But there’s another equally important precedent: American Electric Power v. Connecticut (AEP). That ruling was joined by Chief Justice Roberts and Justice Scalia, so it may carry more weight.
CONTINUE READINGCan the Endangerment Finding be Repealed? Not While MASS. v. EPA Still Lives.
On any fair reading of Justice Stevens’s opinion, the Endangerment Finding is valid.
EPA claims that its justifications for repealing the Endangerment Finding are consistent with the ruling in Mass. v. EPA. That’s just not true.
CONTINUE READINGThe Affirmative Case for Finding Endangerment
Despite hairsplitting by the current EPA, finding endangerment is a no-brainer.
or EPA to decide that vehicle greenhouse gas (GHG) emissions aren’t harmful is iike NASA deciding that the earth isn’t round after all. Over the next year or two, lawyers will be picking over EPA’s detailed legal arguments. Let’s not get mired in the weeds. It’s crazy that this issue is even being raised.
In 2007, the Supreme Court told EPA to do two things: (1) consider whether GHGs endanger human health and welfare, and (2) if the answer is yes, regulate vehicle emissions of GHGs. That’s exactly what EPA did. Nothing has changed in the meantime.
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