Administrative Law
On the First Monday in October, the Sacketts Head to the Supreme Court a Second Time
Sackett v. EPA–the Most Important Environmental Case on the Justices’ Current Docket–Will Answer the Key Question of How Far Federal Wetlands Regulation Extends Under the Clean Water Act
Today the U.S. Supreme Court formally begins its 2022-23 Term. First up on the justices’ docket this morning is a major environmental case: Sackett v. Environmental Protection Agency, No. 21-454. This year marks the 50th anniversary of the Clean Water Act (CWA). Over the past half-century, no single CWA issue has proven more contentious and …
CONTINUE READINGCost-Benefit Analysis and Deep Uncertainty
How should agencies take into account “the things we know we don’t know”?
Since 1981, cost-benefit analysis (CBA) has been at the core of the rule making process. OIRA, the so-called “regulatory czar” in the White House, must approve every significant regulation based on a review of its CBA. But CBA has had a major blind spot. It embodies techniques for analyzing possible harmful outcomes when the probability …
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CONTINUE READINGNow You’re in Law School. What Should You Take?
There’s more than one path to environmentally meaningful work.
On Monday, I explained why this is an especially urgent time for new law students to be thinking about the climate crisis and how they can contribute as lawyers. The next question is how to prepare for that work. Here’s what I would say to a student in that position: The first thing to realize …
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CONTINUE READINGThe Side Deal
How would the Manchin-Schumer deal on permitting impact the environment?
To get Manchin’s vote for the $379 billion in environmental spending in the IRA bill, Schumer and other congressional leaders had to agree to support Manchin’s efforts to speed up the permit system. At this point, all we have is a one-page list of permitting changes that would form the basis of a new bill. …
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CONTINUE READINGBracket Creep at OIRA
There’s an embarrassing economic blunder in how OIRA’s jurisdiction is defined.
The Biden Administration is considering changes to how OIRA, the “regulatory czar,” operates. There’s one simple fix the Administration should make. OIRA core function is cost-benefit analysis But the rules establishing OIRA’s jurisdiction contain an error that should make an economist blush: using nominal rather than real (inflation-adjusted) dollars. This means that OIRA is now …
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CONTINUE READINGClimate Change and the Major Question Doctrine
Just because a regulation involves climate change, that doesn’t make it a major question.
Red State AGs are preparing to go to town with the West Virginia case. They seem to think that everything involving climate change automatically becomes a major question. That’s simply wrong. The doctrine is more nuanced. Recall that the Supreme Court struck down OSHA’s vaccine mandate, essentially on major questions grounds, but the majority found …
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CONTINUE READINGEmerging Answers to Major Questions
We’re beginning to get a clearer understanding of the major questions doctrine.
In November, I wrote a post posing “some major questions about the major questions doctrine.” In West Virginia v. EPA, Chief Justice Roberts starts supplying some answers to those questions. In particular, he seems to be using a narrower four-factor approach to decide what constitutes a “major question.” As we all know, the West Virginia case …
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CONTINUE READINGThe Supreme Court Curbs Climate Action
The ruling in West Virginia v. EPA was about as good as we could expect given the makeup of the Court.
Today, the Supreme Court decided its most important environmental case since 2007. We didn’t dodge the bullet. It’s more than a flesh wound but it didn’t hit any vital organs . Chief Justice Roberts’s majority opinion leaves EPA other options to reduce carbon emissions from coal-fired power plants. It also gives a fairly narrow reading …
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CONTINUE READINGUnquantified Benefits
How can the government account for benefits that it can’t measure?
Like it or not, quantitative cost-benefit analysis has been a key part of the regulatory process for forty years and seem likely to stay that way. Yet even economists admit that they don’t (yet) know how to put numbers on the value of some important regulatory benefits. But how can those qualitative assessments be combined …
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CONTINUE READINGTwo FERC Cases and Why They Matter
Last week’s D.C. Circuit cases illustrate why environmental lawyers need to understand FERC.
The Federal Energy Regulatory Commission (FERC) has been called the most important environmental agency that no one has heard of. At the end of last week, the D.C. Circuit decided two undramatic FERC cases that illustrate FERC’s environmental significance. One involved a bailout to coal and nuclear plants, the other involved water quality. The first …
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