Regulation

Another Worrisome Signal from the Supreme Court

Phrases that should frighten environmentalists: “Shadow docket ” “Major questions doctrine”

Last Thursday, the Supreme Court struck down the CDC eviction moratorium in the Alabama Association of Realtors case. The case may seem far removed from environmental law, but it has some troubling implications for future EPA regulatory initiatives. The process used by the Supreme Court to intervene is as significant as the ruling itself. This …

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Environmentalism and the Supreme Court

Some cases belong to the environmentalist legal canon, others to an anti-canon of reviled precedents.

Every field has its texts that form part of its intellectual canon, and others that form a kind of anti-canon of rejected ideas.  The same is true in environmental law. The issue goes beyond which side wins. From the pro-environmental side of things, some Supreme Court rulings form guideposts to rely on, whereas others represent …

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Unintended Consequences Create Challenges for Utility Regulators

Making sure that regulatory incentives do what the regulators intended.

In a new post, Dan Farber mentions performance-based regulation as a promising tool for encouraging energy utilities to be enthusiastic in supporting the transition to clean energy sources. There are a lot of people who agree with him. After all, traditional utility regulation tends to encourage the companies to overspend on infrastructure and under spend …

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Environmental Law’s Antitrust Paradox

In terms of business size, small may not be beautiful where the environment is concerned.

There has been a surge of concern about how big business may be undermining competition at the expense of consumers and workers. Two signs are Biden’s big executive order on competition and the appointment of antitrust hawk Lina Khan to head the FTC.  Paradoxically, however, big business may be better for the environment. According to …

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The Opioid Epidemic and Vaccine Hesitancy

The places hit hardest by opioids are often skeptical of vaccines. That’s probably not a coincidence.

The opioid crisis was the product of corporate greed run amok and a corrupted regulatory process. That crisis may have amplified deep distrust of the pharmaceutical industry and its government watchdogs — distrust that may now be reflected in vaccine skepticism. First, a little history. The manufacturer, Purdue Pharma,  aggressively promoted the use of oxycontin, …

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The Illusions of Takings Law

Nothing is as it seems, when the issue is whether a regulation is a “taking” of property.

For the last century, the Supreme Court has tried to operationalize the idea that a government regulation can be so burdensome that it amounts to a seizure of property. In the process, it has created a house of mirrors, a maze in which nothing is as it seems. Rules that appear crisp and clear turn …

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The Regulatory Process: FAQs

Here’s an explainer on how federal regulations get issued and reviewed by courts.

Even most lawyers, let alone the rest of the population, are a bit fuzzy on how the regulatory system works.  As the Biden Administration is gearing up to start a slew of regulatory proceedings, here’s what you need to know about the process. Issuing Regulations Q:  Where do agencies like EPA get the power to …

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Cost-Benefit Analysis and the Biden EPA

The recent rescission of  a Trump rule hints at how the Biden Administration views the role of cost-benefit analysis.

In its closing days, the Trump Administration issued a rule designed to tilt EPA’s cost-benefit analysis of air pollution regulations in favor of industry. Last week, EPA rescinded the rule.  The rescission was no surprise, given that the criticisms of the Trump rule by economists as well as environmentalists. EPA’s explanation for the rescission was …

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Guest Contributors Clara Barnosky, Jane Sadler, Richard Yates, and Zachary Zimmerman: The Biden Administration’s First 100 Days of Reversing Environmental Rollbacks

Joe Biden

An Early Analysis of Progress and Priorities in the Executive Branch

In the final months of the Trump presidency, we (a team of students working with U.C. Berkeley’s Center for Law, Energy and the Environment (CLEE)) compiled a database of over 200 environmental rollbacks enacted during the Trump administration. These rollbacks characterized the administration’s aggressive focus on deregulation of industry and disregard of protections for the …

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Washington State Ups Its Climate Game

After much travail, the state has finally put a price on carbon.

The Washington state legislature passed a historic climate change bill on April 24.  The bill requires a 95% cut in carbon emissions by 2050. After much travail, the state has finally managed to put a price on carbon by adopting a cap-and-trade system. With the decision of additional states to join the east coast RGGI …

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