Administrative Law
The Failed Effort to Protect Workers from Toxics: A Labor Day Reflection
The OSHA law called for rigorous regulation. It never happened.
To put it in a nutshell, the political base for workplace toxic regulation eroded along with America’s industrial unions. That deprived OSHA of the congressional support it needed to thrive. In the absence of a union revival, the right of workers to be free from toxic hazards is likely to remain an unfulfilled dream.
CONTINUE READINGCan California Try Again with Vehicle Pollution Limits?
A new Sixth Circuit decision provides encouragement.
In May, Congress effectively killed the most recent efforts by California to clean up its vehicle fleet. Although many people seem to have assumed the contrary, this may not be the end of the road for California regulators. A new court of appeals decision is an encouraging signal that California may be able try again when the political forces in DC are less militantly anti-environmental.
CONTINUE READINGThe Imperious Presidency
Executive Orders by Biden and Trump speak volumes about their perspectives.
It’s not a surprise that Trump has little respect for expertise and immense antagonism toward those he views as his enemies. What’s striking, however, is that way that these attitudes leak into even the most formal government documents, where they shape the official justifications for presidential actions. To borrow a phrase from Justice Scalia, sometimes a wolf comes in sheep’s clothing. But “this wolf comes as a wolf.”
CONTINUE READINGWhich Effects Count?
Conservatives argue that only the effects that they care about should matter.
Not that long ago, conservatives demanded that the government balance costs and benefits. They still do, but with a twist: They demand special limits on consideration of environmental effects. But that makes no sense. Whatever rules we have about costs should apply to all types of costs, and the same with benefits. The result of the skewing the analysis is, not surprisingly, that we get conservative results more often.
CONTINUE READINGWhat Do Bureaucrats Maximize?
New research demonstrates that governments can reduce intractable emissions problems — if they have the right incentives
It’s no secret that Delhi has perhaps the worst air quality in the world, and it’s also no secret that crop-burning in nearby agricultural areas is one of the principal causes (along with topography). But what can you do about it? It’s illegal already, but because crop-burning is a cheap and effective way to get rid …
Continue reading “What Do Bureaucrats Maximize?”
CONTINUE READINGEmergency Powers Aren’t What They Used to Be
In the post-WW2 era, courts bent over backwards to accomodate emergency actions. Not true today, as Trump is finding out.
In mid-century America, emergency powers were truly potent. But those days are gone. In his two terms as President, Trump has declared 21 national emergencies, including eight since January 20. This glut of “emergencies” can only further discredit the whole concept. He and his advisors seem to see those as creating nearly magical legal powers, allowing them to deport people without hearings, run roughshod over environmental safeguards, and impose tariffs willy-nilly. They are probably in line for a disappointment. Judges are no longer in awe of emergency powers.
CONTINUE READINGThe Assault on NEPA: A Threat Assessment
National Environmental Policy Act
NEPA is under multiple attacks. Which are the most serious?
NEPA, the law governing environmental impact statements, is under concerted assault from Congress, the White House, and the Supreme Court. As we will see, the Supreme Court’s recent decision in the Seven County Infrastructure Case is probably the biggest problem. Notably, the debate over NEPA has taken place without much hard data about its effectiveness or costs, so everyone seems free to make their own assumptions.
CONTINUE READINGListing Trump’s Environment and Energy Executive Orders
I’m counting 35 so far. But I wouldn’t be shocked to learn that I’d missed something.
I’ve put together a list of all the Trump 2.0 executive orders that I could identify dealing with environment or energy. Just to keep you reading, I should tell you that the most important ones are near the end. Whatever you might say about Trump, no one can question his zeal for eliminating environmental protections.
CONTINUE READINGPerhaps the Least Qualified FERC Nominee in History
Trump’s nominee seems to have essentially no relevant experience or expertise.
LaCerte has had one brush with energy regulation. He was a special counsel at the big ouil and gas law firm, Baker Botts for two years, starting in January 2023. While there, he worked on energy litigation and environmental safety and incident response issues. None of that has much to do with FERC,
CONTINUE READINGThe Environment and the Rule of Law
Without the rule of law, environmental protection has no chance of succeeding.
It’s no coincidence that the environment and the rule of law are both targets, because environmental protection is particularly dependent on the legal system for support. There is a lot of wisdom to the slogan, “The Earth needs a good lawyer.”
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