Administrative Law
Reinventing Cost-Benefit Analysis
If the goal is to give decision makers the tools to make better decision, a single-dimensional metric isn’t the way to go.
One key issue facing Biden on January 20 will be the role of the the White House regulatory czar. The Office of Information and Regulatory Affairs (OIRA) is a tiny White House agency that is virtually unknown to the public. Yet it exercises outsized influence. OIRA is charged with screening all proposed government regulations using a strict …
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CONTINUE READING“Whole of Government” Climate Policy
We need the help of far-flung parts of the federal government to deal with climate.
President Biden will have to rely on administrative action to do much or all of the heavy lifting in climate policy. It’s clear that EPA has a central role to play in climate policy, but EPA does not stand alone. Other agencies also have important roles to play. Fortunately, the Biden transition team seems to …
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CONTINUE READINGThe Changing Landscape of Climate Policy
Even under Trump, the U.S. was slowly lurching in the right direction. Biden needs to give the process a good strong push.
Barring a Democratic sweep in the Georgia runoffs, Biden will be facing a Republican Senate. But he also has a big advantage: The world has changed in some important ways that favor climate action. The importance of these positive changes may have been obscured by some negative developments. Since Barack Obama left office, climate change …
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CONTINUE READINGShort and Simple Climate Legislation
With a few sentences, Congress could do a lot to fix the law.
The last time Congress tried to pass climate change legislation, the bill was about 800 pages long. That bill, the Waxman-Markey Act, tried to adopt a comprehensive set of emissions reduction measures, which is a complicated business. But a much simpler law could allow the U.S. to move forward quickly with less ambitious but still …
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CONTINUE READINGTaming Textualism: A Guide for Environmental Lawyers
How to Argue Cases to Conservative Judges
Textualism is the dominant method of interpreting statutes among conservative judges. It purports to base interpretation on the “ordinary meaning” of the statutory language. This approach ignores traditional tools of statutory interpretation like considering what was actually said in Congress. Ignoring what Congress actually intended seems odd to me. Still, lawyers have to make arguments …
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CONTINUE READINGToxic Releases? Botched Drug Trials? — Not a Problem, in this Administration
The Trump Administration has essentially dropped enforcement of environmental laws and clinical trial requirements.
The easiest way to gut regulations is simply to stop enforcing them. That tried and true technique has been enthusiastically embraced by the Trump Administration. That’s been long suspected in terms of environmental law. Shockingly, the Administration has also mostly given up on enforcing the standards for conducting clinical drug trials. The breakdown in FDA …
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CONTINUE READING40 Legal Scholars Urge EPA to Withdraw Proposed Ozone NAAQS
EPA’s newest ozone rulemaking has failed to meet even the deferential standard of arbitrary and capricious review.
This blog is co-authored with Sean Hecht. On October 1, 2020, on behalf of 40 environmental and administrative law scholars affiliated with 33 universities in 18 states, Sean Hecht and I filed a comment letter urging EPA to withdraw its decision to keep the National Ambient Air Quality Standards (NAAQS) for ozone at the current …
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CONTINUE READINGBarrett on Standing & Judicial Deference
Her mentor was Scalia, but her style is more like Souter.
With the help of my research assistant, I’ve collected cases by Judge Barrett dealing with standing issues and deference to administrative agencies. Both topics are very relevant to the environment.al crisis. You really can’t draw firm conclusions about her views on these doctrines, but you can draw conclusions about her style. She sticks close to …
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CONTINUE READINGShould a New Congress Use a Deeply Flawed Law to Cancel Trump’s Regulations?
The Congressional Review Act was Newt Gingrich’s brainchild. It should be repealed.
The Congressional Review Act (CRA), part of Newt Gingrich’s “Contract With America”, slumbered for many years in obscurity. Then, in 2017, Congress dusted it off and used it to kill fifteen Obama administration regulations. I’m not the first to ask whether there should be payback if the White House and Senate change hands. There are …
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CONTINUE READINGThe Kavanaugh Court and the Environment
A new appointment would make Justice Kavanaugh the swing voter. Here’s what that would mean for environmental law.
A new appointment by Trump would shift the Supreme Court well to the right, making Brett Kavanaugh the swing voter in many cases. Kavanaugh has clear views about the powers of agencies like EPA. With him as the swing voter, the main strategy used by Obama to make environmental progress would be off limits for …
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