CPR Archive for Emily Hammond

Argument Analysis: Justices Express Skepticism over Using Legislative Motive in Pre-emption Analysis

by Emily Hammond | November 06, 2018

This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US).

The Supreme Court heard oral argument yesterday morning in Virginia Uranium Inc. v. Warren, which concerns the largest uranium deposit in the United States, located in south-central Virginia. The petitioners are owners of the deposit who wish to mine uranium, and they are challenging a 1983 statute by which the Virginia General Assembly imposed a moratorium on uranium mining. Although all parties agree that uranium mining is a matter for state regulation, the owners contend that the moratorium was impermissibly intended to regulate radiation safety associated with uranium milling and tailings management — a field pre-empted by the Atomic Energy Act. The case therefore raises questions about the extent to which a state legislature's motives are relevant to deciding whether the state statute is pre-empted.

Arguing for the owners, attorney Charles Cooper quickly faced inquiries from the justices on this point. Chief Justice John Roberts and Justice Brett Kavanaugh pressed Cooper to explain how the Supreme Court should review a state statute that is motivated by both permissible and impermissible purposes. Justice Sonia Sotomayor also raised methodological concerns, asking, "Is this going to require deposing every single legislative member?" Justice Neil Gorsuch worried about guessing at state legislators' motives, noting the "methodological, epistemological, and federalism questions" doing so would raise. And Justice Elena ...

Argument Preview: Justices May Consider Role of Legislative Motive in Pre-emption Analysis

by Emily Hammond | October 30, 2018
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). Click here to read Professor Hammond's follow-up analysis of the oral arguments in this case. On November 5, the Supreme Court will hear oral argument in Virginia Uranium, Inc. v. Warren, which could test the extent to which a court will explore a state legislature’s motives when evaluating whether a state statute is pre-empted by federal law. The facts concern the ...

Pending House Bill Would Drastically Limit State Protections for Public Health, Safety, Environment

by Emily Hammond | July 25, 2017
The newest dangerous proposal filtering through Congress is H.R. 2887, the "No Regulation Without Representation Act of 2017." Packaged as a prohibition on states regulating outside of their borders, the bill is a Trojan horse that usurps the states' role in the federal system and threatens their ability to protect their own citizens from harm. The House Committee on the Judiciary's Subcommittee on Regulatory Reform, Commercial and Antitrust Law is taking up the bill in a hearing today, July 25, ...

Trump's Executive Order on Climate Policy Rollbacks, Annotated

by Emily Hammond | March 29, 2017
Donald Trump's anti-climate action executive order is, as CPR President Rob Verchick puts it, a classic act of bullying. As I describe in an annotated version of the order, it is also irrational, failing to achieve the very aims it purports to support while inflicting damage to our climate, environment, natural resources, wildlife, and yes – even our coal miners.  In the annotation, I walk through each section of the order, providing an analysis and commentary on just what it ...

The Importance of the Murray Energy Case and Administrative Procedure

by Emily Hammond | April 21, 2015
Last week, the D.C. Circuit heard oral argument on a highly unusual attempt to short-circuit EPA’s rulemaking process for greenhouse gas regulation of existing power plants.  Despite statutory and constitutional hurdles to premature litigation, the petitioners—the coal-fired industry and coal-producing states—argued that the importance of the proposed rule justifies court intervention. The rule’s importance is precisely why it is critical that the agency complete the administrative process. That industry groups will file lawsuits over EPA’s greenhouse gas initiatives is unremarkable.  ...

Power Plant Regulation and the Rhetoric of Reliability

by Emily Hammond | March 15, 2013
The coal-fired power plant industry has always fought air-emissions standards enacted pursuant to the Clean Air Act (CAA).  But the industry has increasingly raised the specter of reliability problems, arguing that EPA’s recent “tsunami” of regulations will cause a “train wreck,” forcing companies to retire aging plants so rapidly that lost capacity will outpace the development of new sources.  The result, they maintain, will be such an unmanageable strain on the regional grids that they will have to impose brownouts ...

Keeping the Independent Agencies Independent

by Emily Hammond | September 13, 2012
The proposed Independent Agency Regulatory Analysis Act, S. 3468, is a troubling idea. As Rena Steinzor explained here when the bill was introduced, it would authorize the President to bring independent agencies under the purview of OIRA.  This proposal is worrisome given the persistent flaws inherent in OIRA’s cost-benefit approach; extending the reach of a poorly functioning process is hard to justify.  But even more problematic is where S. 3468 treads:  the domain of independent agencies.  This development calls for ...

Also from Emily Hammond

 Emily Hammond is a Professor of Law at the George Washington University Law School.

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