Regulatory Policy

Wetlands, the Clean Water Act & the Supreme Court: the Sacketts Return to Washington

Justices Grant Review (Again) in the Sacketts’ Longstanding Wetlands Battle With the Government

  This week the U.S. Supreme Court agreed to hear the case of Sackett v. USEPA, No. 21-454, an important appeal involving the scope of federal authority to regulate wetlands under the Clean Water Act. If the Sackett litigation sounds familiar, it should: the case has been pending for well over a decade, and this is …

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The Black Box of OIRA

OIRA oversees the whole regulatory state. We probably know more about the inner workings of the CIA.   

The Office of Information and Regulatory Affairs (OIRA) oversees government regulation across the federal government. Some portray it as a guardian of rationality, others as biased in favor of industry.  Public information about OIRA is so limited that it’s impossible to know one way or the other, due to the veil of secrecy that surrounds …

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Defending EPA’s Authority to Fight Climate Change – at the Supreme Court

Sean Hecht and Ted Lamm co-author amicus brief on behalf of Clean Air Act expert Tom Jorling

This week, Sean Hecht and I filed an amicus brief at the Supreme Court in West Virginia v. EPA in defense of EPA’s authority to effectively regulate greenhouse gas emissions under the Clean Air Act. Our client is Tom Jorling, a former Senate staffer and EPA official who was directly involved in drafting the Act …

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Positive Signs That California’s New Housing Laws Will be Enforced

Recent Actions by California Courts & State Officials Are Encouraging, & Push Back Against Local Government Recalcitrance on the Housing Reform Front

In a recent post, I analyzed the California Legislature’s recent passage and Governor Gavin Newsom’s signing into law of two important bills–SB 9 and SB 10–designed to confront California’s well-documented housing crisis.  Those laws represent but the latest chapter in the Legislature’s record-setting enactment of numerous statutes in recent years to incentivize and mandate construction …

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Everyday Christmas: The Gift of the Commons

Clean air. Clean water. We receive these public goods every day without payment

One of the Christmas classics is the Jimmy Stewart movie, It’s a Wonderful Life. George Bailey, Stewart’s character, is despondent about his life but then learns how much he has unknowingly helped others and how grateful they are. It’s heartwarming, if also a bit corny. There’s a flip side to that story: the need to remember …

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Major Questions About the Major Questions Doctrine

You may not have heard of this doctrine but it’s a big threat to innovative regulations.

Unless you’re deeply immersed in administrative law, you may not have heard of the major questions doctrine. It’s a legal theory that conservative judges have used with increasing rigor to block important regulatory initiatives.  The doctrine places special obstacles on agency regulations of issues of “major economic and political significance.” In its initial outing, the …

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Cost-Benefit Analysis: FAQs

Cost-benefit analysis has been a key part of the regulatory process since 1980. Here’s how it works.

Cost-benefit analysis is required for all major regulations. It’s also highly controversial, as well as being a mysterious procedure unless you’re an economist.  These FAQs will tell you what you need to know about how cost-benefit analysis (CBA) fits into the regulatory process, how it works, and why it’s controversial. Q: Let’s start with a …

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Climate and Colonialism: Some Columbus Day Thoughts

Is climate change itself a form of colonialism?

“In 1492, Columbus sailed the ocean blue.” That’s what we learned in my grade school. Today, Columbus Day remains a day of celebration for some but has become a symbols of colonialism for others. Rather than entering that debate, I’d like to reflect on how issues of colonialism might relate to climate change. The study …

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When Agencies Fail  

Lives can be lost when agencies fall down on the job.

What happens when agencies fail in their jobs? People can die. The most dramatic example is the opioid crisis, in which a whole series of state and federal agencies fell short.  The result has been hundreds of thousands of deaths. The FDA was one of the prime culprits. It bought into a myth, carefully cultivated …

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Vacancy

A Key White House regulatory office has remained unfilled for a record time.

The Biden Administration is looking to make big regulatory changes, not least regarding climate change. Yet the White House office overseeing regulations is vacant. The obscurely named Office of Regulatory Affairs and Information (OIRA) has to sign off on all significant regulations. Even the dilatory Donald Trump had nominated a permanent administrator by July of …

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