Administrative Law
2022: The Year Ahead
Here are the five biggest things to watch for.
There will be a lot going on this year in the environmental sphere. I wanted to focus on a few big things to keep an eye on, rather than trying to give a long, comprehensive survey. Here are the five biggest things to watch for: Midterm elections. As of now, things are looking very good …
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CONTINUE READINGMajor Questions About the Major Questions Doctrine
You may not have heard of this doctrine but it’s a big threat to innovative regulations.
Unless you’re deeply immersed in administrative law, you may not have heard of the major questions doctrine. It’s a legal theory that conservative judges have used with increasing rigor to block important regulatory initiatives. The doctrine places special obstacles on agency regulations of issues of “major economic and political significance.” In its initial outing, the …
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CONTINUE READINGA Bad Week for Biden, and for Climate Action
First House progressives, and next conservative Justices, poked a stick in the spokes.
President Biden hoped to go to the international climate summit in Glasgow with momentum behind him. He wanted to reestablish US credibility with concrete progress on climate change. Instead, the ability of the US to take action on climate change is shrouded in doubt. Biden suffered an embarrassing defeat at the hands of members of …
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CONTINUE READINGThe Monument to the Unknown Bureaucrat
Yes, there actually is one. It’s in Reykjavík. And here’s why it’s worth pondering.
Working away in anonymity, a cadre of civil servants keeps the machinery of government working. There’s actually a monument in Reykjavík, Iceland to these public servants. It shows someone in a business suit carrying a briefcase — or more specifically, the lower half of the person, with the upper half replaced by a block of …
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CONTINUE READINGCost-Benefit Analysis: FAQs
Cost-benefit analysis has been a key part of the regulatory process since 1980. Here’s how it works.
Cost-benefit analysis is required for all major regulations. It’s also highly controversial, as well as being a mysterious procedure unless you’re an economist. These FAQs will tell you what you need to know about how cost-benefit analysis (CBA) fits into the regulatory process, how it works, and why it’s controversial. Q: Let’s start with a …
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CONTINUE READINGWhen Agencies Fail
Lives can be lost when agencies fall down on the job.
What happens when agencies fail in their jobs? People can die. The most dramatic example is the opioid crisis, in which a whole series of state and federal agencies fell short. The result has been hundreds of thousands of deaths. The FDA was one of the prime culprits. It bought into a myth, carefully cultivated …
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CONTINUE READINGIs the ‘Vaccine Mandate’ Legal?
Despite all the political huffing and puffing, Biden’s order has a solid legal basis.
Incensed critics are calling Biden’s proposed “vaccine mandate” an outrageous usurpation of power. They need to take a deep breath. It’s not really a vaccine mandate, the only statutory issue is procedural, and there’s no constitutional problem. Calling Biden’s order a vaccine mandate is misleading. It could just as well be considered a testing mandate …
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CONTINUE READINGVacancy
A Key White House regulatory office has remained unfilled for a record time.
The Biden Administration is looking to make big regulatory changes, not least regarding climate change. Yet the White House office overseeing regulations is vacant. The obscurely named Office of Regulatory Affairs and Information (OIRA) has to sign off on all significant regulations. Even the dilatory Donald Trump had nominated a permanent administrator by July of …
CONTINUE READINGDisaster Mismanagement
12 Lessons from the COVID response in how NOT to manage a crisis.
The Trump Administration’s bungling of the coronavirus pandemic surely should feature in management textbooks. Just about everything that could go wrong, did go wrong. Some of the problems derived from having a top manager who was fundamentally indifferent and seemingly incapable of grasping basic facts. But other problems were due to inability to manage the …
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CONTINUE READINGAnother Worrisome Signal from the Supreme Court
Phrases that should frighten environmentalists: “Shadow docket ” “Major questions doctrine”
Last Thursday, the Supreme Court struck down the CDC eviction moratorium in the Alabama Association of Realtors case. The case may seem far removed from environmental law, but it has some troubling implications for future EPA regulatory initiatives. The process used by the Supreme Court to intervene is as significant as the ruling itself. This …
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