Regulation
The Impoundment Gambit
Trump plans to use this unconstitutional strategy to reverse congressional priorities and gut environmental agencies.
Trump’s claim of constitutional control over spending would allow him to slash social security or environmental protection with a single stroke his pen, and there would be nothing Congress could do about it.
CONTINUE READINGSchedule F and the Future of the Regulatory State
What is Schedule F? Would it be legal? And why does it matter so much?
Trump has vowed to destroy the “deep state” and to wreak vengeance on his enemies. Something called “Schedule F” is one of the key tools he plans to use as soon as he takes office to “remove rogue bureaucrats,” and he promises to use that tool “very aggressively.”
CONTINUE READINGThe D.C. Circuit and the Biden Power Plant Rule
The court’s denial of a stay is very good news for EPA
The D.C. Circuit frequently denies stays, but this ruling was notable for three reasons: It allows an important climate change regulation to go into effect; it clarified an important legal doctrine; and it has a good chance of being upheld on appeal.
CONTINUE READINGIs 2025 the Year of the Carbon Tax?
Carbon border adjustment mechanisms are increasingly the talk of Washington. UCLA Law’s Kimberly Clausing explains some of the options on the table.
There’s a big, important tax debate looming next year—one with opportunities and risks for climate policy, particularly the idea of a carbon tax. It can be hard to see this debate thanks to the daily churn of the 2024 presidential election, but it’s there on the horizon if you squint. For one thing, we’ll likely …
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CONTINUE READINGUnderstanding Loper: A Sheep in Wolves’ Clothing?
The real world effects may be limited. Or they may undercut presidential power, to the surprise of advocates of the unitary executive.
Because there are so many outstanding questions about the Court’s new approach to judicial review, we won’t know its practical impact for some time. Its symbolic impact as an affirmation of conservative ideology is more obvious.
CONTINUE READINGUnderstanding Loper: The Grandfather Clause
Hundreds of past federal cases relied on Chevron. They remain good law.
To cushion the shock of abandoning Chevron, the Supreme Court created a safe harbor for past judicial decisions. This was well-advised. The Court itself applied Chevron at least seventy times, as did thousands of lower court decisions. The key question will be the scope of the grandfather clause. The Court’s discussion began by saying that …
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CONTINUE READINGUnderstanding Loper: The Primacy of Skidmore
A previously obscure 1944 case will now be central to judicial review.
Some commentators have tended to write off Skidmore and assume that judges will ignore agency views after Loper Bright. That is a misreading of the Court’s opinions in Loper and in Skidmore itself.
CONTINUE READINGUnderstanding Loper: Delegation & Discretion
Something similar to Chevron deference may still apply to many (most?) regulations.
The Supreme Court took away Chevron deference, but it also recognized that Congress can give agencies the power to clarify statutes and fill in gaps.
CONTINUE READINGPlaying fast and loose with reality
How the US Supreme Court’s recent decisions enable greater reliance on “alternative” facts
As the U.S. Supreme Court has moved into an era of second-guessing federal administrative agencies to an extent that we have not seen in 80 years, it has delivered yet another blow to reliance on accurate facts. When I served as an administrative law judge for California’s state utility regulators, my job in each proceeding …
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CONTINUE READINGCalifornia can help meet its climate goals by removing SERP’s sunset date
By Molly Bruce, Dave Smith, Michael Kiparsky, Derek Hitchcock, Peter Van De Burgt, Sydney Chamberlin, Megan Cleveland
Many regulatory clearances like permits aim to guard against projects that pose harm to the environment. However, permitting can also undercut environmental restoration efforts. While restoration is designed to remedy environmental harms and improve resilience to climate change, permitting can substantially increase project costs and slow or altogether impede environmentally beneficial projects. Striking an effective …
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