Administrative Law
Emerging 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 …
Continue reading “Emerging Answers to Major Questions”
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 …
Continue reading “The Supreme Court Curbs Climate Action”
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 …
Continue reading “Unquantified Benefits”
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 …
Continue reading “Two FERC Cases and Why They Matter”
CONTINUE READINGEquity Weighting: A Brief Introduction
An unfamiliar concept for most that just might make cost-benefit analysis more progressive.
A technique called equity weighting could make regulation more progressive. Implementing this technique may be harder than it sounds, however, for a variety of practical, legal, and political reasons. Agencies might do best to use equity weighting as a way to check their regulatory decisions rather than as their main decision tool.
CONTINUE READINGAn Abundance Research Agenda
If we need to build lots of things fast to address climate and housing crises, how will we do that?
There’s been a lot of buzz about this column by Ezra Klein in the New York Times. Klein’s basic argument: We need to do a lot of infrastructure and other development projects to make the world a better place. For example, we’ll need to build power lines and renewable projects to address climate change. But …
Continue reading “An Abundance Research Agenda”
CONTINUE READINGSmoke But No Fire
No, the draft Supreme Court abortion decision doesn’t threaten the standing of environmental groups
The implications for environmental law are far from being the most important aspect of the leaked draft of a Supreme Court opinion overruling Roe v. Wade. The aggressiveness of the opinion in the Dobbs case signals a kind of activism that is definitely worrisome in other areas. At the end of last week, however, there …
Continue reading “Smoke But No Fire”
CONTINUE READINGClarifying the Congressional Review Act
The Ninth Circuit rules on the preclusive effect of a CRA disapproval in a wilderness protection case.
Soon after Trump took office, Republicans used the Congressional Review Act (CRA) to overturn sixteen Obama-era regulations. If they win control of the government in 2024, they’ll undoubtedly do the same thing to Biden regulations. It behooves us, then, to understand the effect of these legislative interventions. A Ninth Circuit ruling last week in a …
Continue reading “Clarifying the Congressional Review Act”
CONTINUE READINGEnvironmental Justice, Truck Pollution, and the Biden EPA
How will EPA integrate EJ into its rule making? The answer remains murky.
EPA recently released a notice of proposed rulemaking for pollution from new heavy-duty vehicles. I was interested to see how environmental justice figured into the analysis, looking for clues about how the Biden Administration plans to make EJ part of decision making. What I found wasn’t very enlightening. Perhaps they’re still trying to come up …
Continue reading “Environmental Justice, Truck Pollution, and the Biden EPA”
CONTINUE READINGSmoothing the Path for Transmission Lines
Fights over who should pay for power lines may become much easier to solve.
New high-power transmission lines have to run a regulatory gauntlet to get approved. One of the biggest barriers, however, isn’t about whether the line can be built but who will pay for it. That has turned out to be a much knottier problem than you might think. A decision by the D.C. Circuit on Friday, …
Continue reading “Smoothing the Path for Transmission Lines”
CONTINUE READINGJoin Our Mailing List
Climate policy is changing rapidly. Stay in the loop with expert analysis via email Monday - Friday.
