Laying Down the Law on Rule Delays

by Lisa Heinzerling | June 14, 2018

Originally published on The Regulatory Review. Reprinted with permission.

Since the Reagan administration, it has become commonplace for new presidential administrations, in one of their first official acts after inauguration, to freeze at least some pending regulatory actions of the prior administration. These freezes have been of varying breadth and have taken varying forms.

The Trump administration’s regulatory freeze was notable for its sweeping scope and blunderbuss execution. In the early months of President Donald J. Trump’s presidency, agencies delayed many dozens of final rules issued in the Obama administration, often with little explanation other than that a new President had been elected and he wanted the agencies to revisit existing regulations.

Before the Trump administration, there was surprisingly little law on agencies’ power to delay the effectiveness of final rules. A small cohort of judicial decisions came out of the Reagan years, and a handful of cases emerged from subsequent administrations. These decisions, together, made clear that agencies’ decisions to delay final rules were reviewable by the courts and that a delay of a rule’s effective date was itself an act of substantive rulemaking subject to the notice-and-comment requirements of the Administrative Procedure Act (APA).

The courts expressed serious concern that agencies could effectively repeal rules—without going through the process required for repeal—if they were allowed to delay rules indefinitely. Courts looked with great skepticism on rule delays ...

Baltimore Sun Op-Ed: Baltimore Employer of Smothered Worker Should Be Held Criminally Accountable

by Rena Steinzor | June 12, 2018
This op-ed originally ran in the Baltimore Sun. On June 5, a 19-year-old construction worker named Kyle Hancock was smothered to death when a deep trench where he was working collapsed. R.F. Warder Inc., the construction company that hired Hancock to help fix a leaking sewage pipe, and the bosses it employed are responsible for his death, plain and simple. Their failure to shore the trench to prevent a collapse was grossly negligent, readily foreseeable, eminently preventable and, therefore, criminal. The ...

Disastrous Inequality

by Daniel Farber | May 10, 2018
Texas and Puerto Rico both got hit very hard last year by major hurricanes. But the federal government moved a lot more quickly to get help to Texas. In a new paper, I document the difference and explore the reasons. Although I won't go into all the details here, this is a situation people need to know about. , though there's a more extensive table in the paper. FEMA says it poured just as many resources into Puerto Rico as ...

New Report: It's Time to Repeal the Congressional Review Act

by James Goodwin | May 02, 2018
Over the last couple of weeks, conservatives in Congress have continued their assault on public safeguards using the once-obscure and once-dormant Congressional Review Act (CRA). If their latest adventure succeeds, it will be the 16th public protection that these members, working with in concert with President Donald Trump, have obliterated over the last year, laying waste to a broad and diverse range of measures related to public health, safety, the environment, and consumer financial protection.  The anti-safeguard lawmakers behind these ...

Promoting Energy Innovation

by Daniel Farber | April 13, 2018
An MIT professor has a great idea for a molten metal battery that could outperform lithium batteries. Of course, like many great ideas, this one might not pan out. But even if it does pan out technically, Grist explains one reason why it might never get to the commercial stage: Ultimately, the thing that makes lithium-ion so tough to topple is something called the "experience curve." The curve maps how, over time, in many different sectors, increases in scale lead ...

At House Judiciary Hearing, CPR's Hammond Calls Out Efforts to Rig Environmental Review Process

by James Goodwin | April 12, 2018
This morning, CPR Member Scholar and George Washington University Law Professor Emily Hammond is set to testify before the House Judiciary Committee's Subcommittee on Regulatory Reform, Commercial, and Antitrust Law at a hearing that will look at two highly flawed bills. While their particulars differ, each is conspicuously (if a bit clumsily) designed to rig the environmental permitting process to allow industry groups to ram through big infrastructure and construction projects while shutting out the public from its traditional and ...

The Guidance Racket

by Rena Steinzor | March 27, 2018
Originally published on The Regulatory Review. Reprinted with permission. The spirited conservative attack on regulatory guidance is both puzzling and hypocritical. Admittedly, agencies sometimes issue guidance to avoid the quicksand of informal rulemaking. But the law makes clear that without full-dress procedure, guidance can never replace rules and statutes in enforcement actions. Remedying agency overreach in the rare circumstances when enforcement cases are based primarily on guidance is a straightforward legal matter—defendants have only to tell their problems to a judge. ...

CPR's Heinzerling to House Small Business Committee: Trump's Assault on Safeguards Nothing to Celebrate

by James Goodwin | March 07, 2018
Later this morning, CPR Member Scholar and Georgetown Law Professor Lisa Heinzerling will testify before the House Small Business Committee at a hearing that appears to be aimed at reveling in the Trump administration's assault on regulatory safeguards. In her testimony, Professor Heinzerling will explain why the celebratory mirth and merriment from the committee's majority members and their invited witnesses is misplaced and most likely premature.  As Heinzerling will point out, the major motivating force behind the Trump administration's assault is ...

Trump White House: Safeguards Produce Huge Net Benefits; Also Trump White House: Repeal Them Anyway

by James Goodwin | February 28, 2018
Last week, the Trump administration released the annual Draft Report to Congress on the Benefits and Costs of Federal Regulations. As befitting this auspicious occasion, the administration pulled out all the stops: targeted op-eds from high-ranking administration officials; relevant operatives dispatched to the leading Sunday morning talk shows; and even a televised press conference with the president himself.  Just kidding. They buried it. Quietly. Late on a Friday afternoon. When Congress was away on recess.  And even though it's already ...

The Hill Op-ed: Justice Dept's Enforcement Policies Make Change for the Worse

by Rena Steinzor | February 22, 2018
This op-ed originally ran in The Hill. Attorney General Jeff Sessions has wasted little time portraying himself as the prosecutor-in-chief of street — as opposed to white collar — crime, rejecting this month even a broadly bipartisan effort to reduce sentences for nonviolent crime supported by a coalition that spans the Koch brothers and the NAACP. Civil enforcement has also fallen off, as documented in investigative reporting by The New York Times and others. Both trends will almost certainly continue given ...

Government and Bureaucracy Play Essential, Fundamental Roles in American Life

by James Goodwin | January 31, 2018
President Trump's first State of the Union address contained numerous outrageous claims and statements, rendering a full dissection and critique practically impossible. Many have already singled out one line of the speech as worthy of particular condemnation, so I'll add mine. Early on, Trump made this statement to the rapturous applause of his conservative allies in Congress: "In America, we know that faith and family, not government and bureaucracy, are the center of American life." This claim is not only ...

What Creates the Cost, Mr. President?

by Matthew Freeman | January 31, 2018
During the State of the Union address last night, no one was surprised to hear President Trump brag about all the work his administration has done slashing regulatory safeguards for health, safety, the environment, and financial security. It’s clearly one of his proudest first-year accomplishments — making us all less safe and more vulnerable to industries that profit by polluting the air and water, creating unsafe working conditions, using underhanded financial practices, or selling dangerous products. The president thinks that ...

Breaking the Law: Many Trump Regulatory Rollbacks and Delays Are Unlawful

by Bill Funk | January 30, 2018
Progressives have rightfully taken issue with the Trump administration's policy goals, from immigration to the environment, from health care to worker safety. Given the president's decidedly unprogressive stances, one should not be surprised at the policy reversals from the prior administration. One might be surprised, however, and dismayed as well, at the cavalier disregard that the administration has shown for the law, both substantive and procedural.  For example, President Trump's earlier executive orders on the "Muslim ban" were overturned not ...

The Congressional Review Act: Trump's First-Year Participation Trophy

by James Goodwin | January 29, 2018
Perhaps because he has so few real accomplishments to his name, President Donald Trump has developed a nasty habit of embellishing his record. From the size of the crowd at his inauguration to the number of floors in Trump Tower, he simply won't let a little thing like "reality" or "facts" or even "cardinal numbers" get in the way of his estimation of his own self-worth. Expect this behavior to be on full display at tomorrow night's State of the ...

Looking Back on a Year of Trump's Regulatory 'Fire and Fury'

by Matt Shudtz | January 26, 2018
Next Tuesday, President Trump will share his view of the state of our union. And if his words correlate with his actions over the last year, the dominant theme will be one of division and disruption. Like no president in recent history, Donald Trump has pushed U.S. residents to cordon ourselves off into dueling tribes whose theories of governance and policymaking diverge and whose basic facts and language are starting to split in disturbing ways. But on whichever side of ...

FERC Rejection of Coal Subsidies Proposal Demonstrates Importance of Independent Agencies

by James Goodwin | January 09, 2018
On January 8, the Federal Energy Regulatory Commission (FERC) struck a resounding blow against the Trump administration's ill-advised agenda to put its thumb on the scale of the energy market by propping up the coal industry, unanimously rejecting a controversial proposal by Department of Energy (DOE) Secretary Rick Perry. Perry's plan would have resulted in working families and small businesses subsidizing the coal industry to the tune of hundreds of millions or even billions of dollars. Dozens of energy policy ...

Steinzor: Trump's reform won't stop mass incarceration

by Matthew Freeman | December 21, 2017
"Despite the most extensive bipartisan support in many years for the reform of mass incarceration in the United States, the Trump administration has ignored this enormous problem and focuses solely on greater leniency for white collar criminals." So writes CPR’s Rena Steinzor in her latest op-ed in The Hill. She goes on to describe the circumstances under which the Department of Justice abandoned its prosecution of HSBC, and with it a deferred prosecution agreement that would have settled a “massive criminal ...

Trump's Newspeak

by Matthew Freeman | December 19, 2017
"You don't grasp the beauty of the destruction of words. Do you know that Newspeak is the only language in the world whose vocabulary gets smaller every year?" Winston Smith, 1984 Donald Trump has never been known for the breadth of his vocabulary. In his case, I’ve always assumed that was a marker of a not particularly curious mind. The guy’s openly contemptuous of higher education; he says he doesn’t read books because he gets what he needs to know ...

Good Government

For democratic government to function properly, the people need to know what their government is doing in their name. That demands both transparency and honesty from government officials and agencies. In recent years, however, some in government have worked to shield their work from public inspection, and not just where national security is concerned.

Disastrous Inequality

Farber | May 10, 2018 | Good Government

Steinzor: Trump's reform won't stop mass incarceration

Freeman | Dec 21, 2017 | Good Government

Trump's Newspeak

Freeman | Dec 19, 2017 | Good Government

Weaponizing Wealth: Unjust Redistribution Upward

Cranor | Dec 18, 2017 | Good Government

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