Regulation
The Flight of the Bumblebee
The Trump Administration loses an environmental case. Again.
Last Friday, the Fourth Circuit halted efforts to build a natural gas pipeline because the Administration had done such a lousy job of showing its compliance with the Endangered Species Act. This was one of the Administration’s many losses in court. The case involved a perfect example of “arbitrary and capricious” decision making, to use …
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CONTINUE READINGEndangered Deference
The Supreme Court’s recent, misguided, Weyerhaeuser decision displays the Court majority’s hostility to agency expertise
Cross-posted from The Regulatory Review In Weyerhaeuser v. US Fish and Wildlife Service, a unanimous Supreme Court, with Justice Gorsuch not participating, indicated that it is not inclined to defer to agency expertise. Judicial power dominates this Court’s approach to administrative law, not just in the context of Chevron deference, and not just within the …
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CONTINUE READINGHow I Learned to Stop Worrying and Love OIRA
OIRA may have had its problems. What we have right now is much worse.
If you’re like most environmentalists, you probably don’t have a high opinion of OIRA, the White House office that’s supposed to oversee regulations. (For those who are new to this, OIRA stands for the Office of Information and Regulatory Affairs.) The complaints are legion: that OIRA lacks transparency, that it acts as a back door …
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CONTINUE READINGThe Trump Administration’s Latest Efforts to Hobble the Clean Water Act
Administration’s New Plan to Eviscerate States’ CWA § 401 Certification Authority Is Flawed Procedurally & Substantively
By now, readers of Legal Planet are well aware of President Trump’s ongoing efforts to rescind the Obama Administration’s “Waters of the United States” rule and replace it with a new federal regulation that dramatically circumscribes federal regulatory authority under the Clean Water Act. My Legal Planet colleagues and I have previously blogged on this …
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CONTINUE READINGWhere’s the Beef?
Mississippi’s “Veggie Burgers” Ban is Almost Certainly Unconstitutional
Mississippi recently passed a law that has the effect of banning terms like “veggie burger.” It’s easy to imagine other states passing similar laws. From an environmental view, that’s problematic, because beef in particular is connected with much higher greenhouse gas emissions than plant products. It’s not just the methane from cow-burps, it’s also all …
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CONTINUE READINGDoes the US have a delegation problem?
A comparison of US and Canadian environmental law indicates perhaps not
One of the big cases at the end of this year’s Supreme Court term was Gundy v. United States, where four justices signaled they were open to reviving a long dormant doctrine, the non-delegation doctrine, to constrain open-ended delegations of authority from Congress to Executive Branch agencies. There’s been various prognostications as to whether the …
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CONTINUE READINGThe Witching Auer
The Supreme Court rules on deference to agency interpretations.
The Court’s opinion in Kisor v. Wilkie was eagerly awaited by administrative law experts. It is one skirmish in the ongoing war over deference to agencies. In this case, the issue was whether to overrule the Auer doctrine, which requires courts to defer to an agency’s reasonable interpretation of its own regulations. This doctrine, like …
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CONTINUE READINGThe Census Case and the Delegation Issue
Conservative Justices endorse broad administrative discretion.
In a recent decision, four of the conservative Justices indicated a desire to limit the amount of discretion that Congress can give administrative agencies. If taken literally, some of the language they used would hobble the government by restricting agencies like EPA to “filling in the details” or making purely factual determinations. Some observers have …
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CONTINUE READINGWho Is Anne Idsal?
Bill Wehrum steps down as Assistant Administrator of EPA’s Office of Air and Radiation.
This morning, EPA Administrator Andrew Wheeler announced that Assistant Administrator Bill Wehrum will be stepping down at the end of this month. The language of EPA’s press release seems intended to suggest that the departure was voluntary, but the resignation comes amid ongoing scrutiny about the Assistant Administrator’s connections to a number of industry clients …
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CONTINUE READINGSupreme Court Takes a Knick Out of Regulatory Takings Law
Justices Curb Ripeness Rule; Open Federal Courts to Takings Litigation
In the final, major environmental law decision of its current Term, the U.S. Supreme Court handed property rights advocates a major victory while repudiating an important regulatory takings precedent the Court had itself fashioned and announced 34 years ago. The case is Knick v. Township of Scott. By a narrow 5-4 vote that split …
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