Administrative Law
Can We Use Regulation to Reduce Inequality?
Contrary to some, I think the answer is yes. And here’s how we can do it.
Inequality is a burning issue in our society but plays only a limited role in the design of regulations. In an article that came out a week ago, I try to work through questions about how economic and racial inequality can be integrated into rule-making. In terms of economic inequality, the current system already has …
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CONTINUE READINGWhat’s a Major Question? (Judicial) Opinions differ.
Scholars don’t know the answer. Nor, apparently, do the federal courts of appeals.
In West Virginia v. EPA, the Supreme Court used the “major question doctrine” to overturn Obama’s signature climate change regulation. Once an issue reaches a certain level of significance, the Court says, Congress generally would want to make its own decision rather than allowing an agency like EPA to decide. Scholars have criticized the opinion …
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CONTINUE READINGVehicle Regulations on Trial
Three big cases in the D.C. Circuit will determine the fate of Biden’s vehicle regulations.
This week, the D.C. Circuit hears three cases challenging use of federal regulations to push adoption of electric vehicles and to allow California to forge path toward zero-emission cars. If all three cases go badly, the regulatory system would be disabled from playing a role in this area. This would be a huge setback, though …
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CONTINUE READINGUpcoming Regulatory Cases in the Supreme Court
Two pending cases could result in big cuts to agency powers
Three weeks from today, the Supreme Court starts its 2023 Term. There are two blockbuster cases on the docket. In one case, the issue is whether to overrule the Chevron case, which has been foundational to administrative law for the past four decades. In the other, the issue is agency power to sanction violations of …
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CONTINUE READINGThe Utility Response to EPA’s Climate Rules
The power industry apparently shares some progressive doubts about CCS and hydrogen
There are three big takeaways from the utility industry’s comments on EPA’s proposed new climate rules. First, the industry seems to share progressive concerns about whether we can count on hydrogen and CCS (carbon capture and sequestration). Second, the industry doesn’t invoke the major question doctrine, making it clear that it does not view such …
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CONTINUE READINGConstraints on Rollbacks
Regulations have some sticking power, even when the White House changes hands.
The Trump Administration’s massive campaign against government regulation was horrifying at the time and depressing in retrospect. Many people have been left with doubts about whether it’s even worthwhile to bother with new regulations, given the risk of a switch in control of the White House. I don’t question Trump’s regulatory carnage. But Obama’s achievements …
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CONTINUE READINGFinetuning the New NEPA Rules
CEQ’s proposal is good, but it could be made even better.
In Monday’s post, I praised the CEQ’s proposed new NEPA regulations. They should streamline the process without compromising protection of the environment or environmental justice. I do have some suggestions for improvement, however, which are detailed below. Beyond my specific suggestions, I also hope that CEQ would view the new NEPA regulations as the beginning …
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CONTINUE READINGRevamping the NEPA Process
The White House ‘s proposed regulations will streamline the process while still protecting the environment.
Early on Friday, the White House’s Council on Environmental Quality (CEQ) released the proposed Phase II revisions of its NEPA regulations. The CEQ proposal deftly threads the needle, streamlining the NEPA process while protecting the environment and disadvantaged communities. The proposal is a clear improvement over both earlier versions: 1978 rules issued by the Carter …
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CONTINUE READINGThe Latest in the Mountain Valley Pipeline Case
The Supreme Court was right to overturn the lower court’s stay.
Environmental groups have fought valiantly to stop the construction of the MVP project, and the Fourth Circuit has repeatedly upheld their legal claims. Congress recently gave the pipeline the go-ahead. The Fourth Circuit quickly halted it again but was overturned earlier today by the Supreme Court. I’m no fan of natural gas pipelines or of …
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CONTINUE READINGState Government Standing and Environmental Law
The Supreme Court seems to be cooling to the idea of empowering state AGs.
Massachusetts v. EPA, the cornerstone climate case, contains an extensive discussion of standing which opens by saying that lawsuits by state governments are entitled to “special solicitude.” In the last few weeks of its term, the Supreme Court opined repeatedly on state standing. “Special solicitude” seems to be on the wane. Overall, I that might …
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