CPR Archive for David Driesen

The Hill op-ed: Ruling by Decree

by David Driesen | March 07, 2017

This op-ed originally ran in The Hill.

The Feb. 28 executive order overturning a Clean Water Act rule clarifying EPA's jurisdiction over wetlands furnishes but the latest example of President Trump's propensity to rule by almost daily fiat. Trump has ruled by decree ever since he assumed office. He has not proposed a single bill to our elected representatives, not even a bill to help blue-collar workers and rebuild America through infrastructure projects, one of his main campaign promises. Nor has he supported a bill introduced by others to accomplish this.

Our Constitution, however, authorizes an elected legislature to establish laws and directs the president only to "faithfully execute" them. And it requires all government officials to swear an oath to obey the law. The introduction of the oath clause into our Constitution marked a sharp departure from prior practice, under which government officials swore fealty to obey a supreme leader.

This rule of law has served America well. In countries like Putin's Russia, where one ruler controls, the law does not establish just standards but instead authorizes the ruler to punish adversaries and to empower and enrich his cronies. The most prosperous countries on earth have divergent tax and regulatory regimes, but they all have a stable rule of law.

Even though elected legislatures often move with painful slowness, citizens' ability to control the law's content through ...

The Cabinet and the Rule of Law

by David Driesen | February 06, 2017
To carry out their duty under the Constitution, senators must ask themselves the following question when considering a president's cabinet nominee: Will this person faithfully execute the laws, even if the president wishes to ignore them and carry out a contrary policy? Unless the answer to that question is a clear "Yes," they must reject the nominee.  Alexander Hamilton explained in The Federalist Papers that the Constitution authorizes the Senate to disapprove of presidential nominees to discourage the president from ...

Tax Credits and Public Spending on Infrastructure

by David Driesen | January 30, 2017
Donald Trump based his candidacy on the claim that he would serve working-class people who established politicians have neglected. He promised $1 trillion of infrastructure investment over 10 years, which could generate a lot of blue-collar employment while potentially repairing crumbling bridges and roads, replacing antiquated wastewater treatment systems (in Flint and elsewhere), and creating a mass transit system that could move us into the 21st century in that realm. A sound infrastructure program, unlike anything else that Trump has ...

The Role of the Clean Air Act's Goals in Clean Power Plan Litigation

by David Driesen | September 08, 2016
The Clean Power Plan has been widely touted as significant because it regulates the largest source of carbon dioxide (CO2) emissions in the United States – the electric power industry. Its significance, however, goes beyond U.S. CO2 emissions because it serves as the linchpin of international efforts to reduce greenhouse gases in order to avoid dangerous climate disruption. The rule gave the Obama administration sufficient credibility to persuade the Chinese to pledge limits on their own greenhouse gas emissions for ...

The Clean Power Plan: Unpacking the Generation Shifting Issue

by David Driesen | September 08, 2016
The U.S. Environmental Protection Agency's (EPA's) Clean Power Plan (CPP) relies, in part, on a pollution reduction strategy – generation shifting – that is at issue in the ongoing lawsuit over the rule. Generation shifting involves increasing use of relatively clean natural gas and renewable energy and reducing use of relatively dirty and expensive coal-fired power plants. Although the technique has lowered power plant emissions significantly in recent years, opponents of the CPP have argued in legal briefs that section ...

Airlines' Bait-and-Switch Scheduling

by David Driesen | June 02, 2016
During the last few years, airlines have increased their reliance on "bait-and-switch" scheduling. They induce travelers to choose their airline based on advertised routes and schedules. They know that especially good routes are valuable and generally charge more for a good route than a bad one. Long after travelers have taken the bait, often paying more than the lowest available price to avoid delay-prone airports, long layovers, and multiple stops, the airlines simply switch around the schedule. While many of ...

Extreme Weather and Climate Disruption Since Katrina

by David Driesen | August 28, 2015
CPR’s Unnatural Disaster report pointed out that current energy policies favoring fossil fuels made it “more likely that there will be disasters like Katrina in the future.” It explained that global climate disruption increases temperatures thereby causing sea level rise, a big threat to the Gulf Coast, and that climate disruption models suggest a shift toward extreme weather events. Since Katrina, we have certainly seen lots of extreme weather. Perhaps most reminiscent of Katrina, on October 30, 2012, Superstorm Sandy ...

A Mass-Based Cap for Power Plants

by David Driesen | October 13, 2014
EPA’s proposed new rule for greenhouse gas emissions from power plants gets a lot of things right. For one thing, it recognizes that electric utilities can employ a variety of measures to reduce greenhouse gas emissions. They can switch to natural gas or even renewable energy sources. They can fund end-use efficiency improvements—such as energy efficient windows, better insulation, and light bulbs that burn brightly even while they conserve electricity. All of these techniques reduce power plant emissions. So, EPA ...

The Keystone EIS’ Grudging Acknowledgment of Environmental Impact

by David Driesen | March 07, 2014
The media has reported, erroneously, that the Obama Administration’s environmental impact statement concluded that the Keystone Pipeline would have no impact on global climate disruption. The facts are a bit more complicated, and much more interesting. Basically, the final EIS concedes that Keystone would increase greenhouse gas emissions, but it uses a silent political judgment masquerading as scientific analysis to minimize its estimate of the increase’s magnitude. Accordingly, President Obama has ample grounds to reject the Keystone Pipeline application. Let ...

Keeping OIRA from Harming Efforts to Reduce Greenhouse Gas Emissions

by David Driesen | October 03, 2013
This blog explains why President Obama should exempt proposals to mitigate climate disruption by reducing greenhouse gas emissions from OIRA review. First, the procedure that justifies OIRA review, cost-benefit analysis (CBA), just does not work for climate disruption measures. Second, CBA undermines just and legal climate policy. Third, climate disruption poses special risks that make the delay and weakening that comes from OIRA review unacceptable.  Because of climate disruption's nature, prominent CBA proponents, such as Eric Posner and Martin Weitzman, ...

New Source Standards for Power Plants: The Status Quo and Sensible Government

by David Driesen | September 20, 2013
Almost every new power plant that the electric utility industry has built in recent years has been a natural gas powered plant. Industry rarely builds new coal-fired power plants anymore because gas has become much cheaper than coal. That is a very good thing. Absent rather expensive carbon capture and storage, new coal-fired power plants emit far more greenhouse gases than natural gas powered plants. The new source standards promulgated today will tend to lock in the current status quo. ...

Phasing out Fossil Fuels

by David Driesen | February 13, 2013
We will phase out fossil fuels.  We have no choice. They are a finite resource and at some point they will run out.  Admittedly, coal will not run out nearly as quickly as oil, but sooner or later all fossil fuel resources will run out.  The only question we face is whether we phase out fossil fuels before we have set in motion climate disruption’s worst effects or instead just allow a phase-out to occur through price shocks and shortages ...

Exempting Climate Mitigation from OIRA Review

by David Driesen | January 24, 2013
Cross-posted from RegBlog. Nobody seems to have noticed, but the Center for Progressive Reform (CPR) recently recommended abolition of review by the Office of Information and Regulatory Affairs (OIRA) based on cost-benefit analysis (CBA). Its report on recommendations for the second Obama Administration made this proposal the sixth item in a list of seven executive orders that Obama could issue with a "Stroke of the Pen" (from the report’s title). In place of CBA-based review, which has often stymied or delayed needed environmental ...

Regulation as a Dynamic Macroeconomic Enterprise

by David Driesen | August 30, 2012
Reposted from RegBlog. Traditionally, the field of law and economics has treated government regulation as if it were a mere transaction. This microeconomic approach to law assumes that government regulators should aim to make their decisions efficient by seeking to equate costs and benefits at the margin. As I argue in a new book, The Economic Dynamics of Law, the microeconomic model of government regulation misconceives the essence of regulation. Government regulation produces not an instantaneous transaction, but a set of ...

Health Care's New Commerce Clause: Implications for Environmental Law

by David Driesen | June 29, 2012
Although the Supreme Court upheld the Affordable Care Act’s requirement that most individuals purchase health insurance (called the individual mandate) as within Congress’ power to levy taxes, it stated that Congress lacked the power to enact it under the Commerce Clause.  Under prior case law, Congress could regulate activities substantially affecting interstate commerce by any means not offending the bill of rights.  Since the Affordable Health Care Act regulates a set of activities that substantially affect interstate commerce, namely the ...

The Ozone Standard as Presidential Policy: Some Concerns

by David Driesen | September 14, 2011
Cross-posted from RegBlog. As Stuart Shapiro recently pointed out in a RegBlog post, President Obama himself made the decision a week ago to withdraw the U.S. Environmental Protection Agency’s (EPA’s) ozone National Ambient Air Quality Standard (NAAQS). Presidents have occasionally acted to resolve disputes between the White House Office of Information and Regulatory Affairs (OIRA) and EPA before, but typically OIRA acts in the President’s name without knowing exactly what he thinks about the regulatory details that OIRA negotiates with EPA. Stuart ...

Incorporating the Best of Cantwell-Collins into KGL: Don't Forget the Missing Instrument

by David Driesen | March 24, 2010
Last week, Senators Kerry, Graham, and Lieberman (KGL) reportedly released an 8-page outline for a bill mitigating climate disruption that they are crafting in order to try to break the deadlock that has heretofore blocked legislation in the Senate. ClimateWire reported that the KGL bill would incorporate ideas from the bill introduced by Senators Maria Cantwell (D. Wash.) and Susan Collins (R. Maine), the Carbon Limits and Energy for America’s Renewal (CLEAR) Act. That incorporation might be a good thing, ...

Administrative Delay in Implementing a Cap-and-Trade Program: A Compelling Reason to Auction All Allowances

by David Driesen | September 17, 2009
Cap-and-trade legislation making its way through Congress has become enormously complex, embodying a host of arcane political deals governing the distribution of the vast majority of emissions allowances being given away for free, with crucial details being left to EPA. This complexity threatens to hinder the effort to address climate disruption (see my article Capping Carbon). It would lead to long delays and weak implementation, just like other laws delegating a lot of controversial and litigable decisions to administrative agencies. ...

Also from David Driesen

David M. Driesen is a University Professor at Syracuse University College of Law, and an Adjunct Associate Professor at the State University of New York College of Environmental Science and Forestry. He holds a J.D. from Yale Law School. He is a member of the editorial board of the Carbon and Climate Law Review, published in Berlin and Environmental Law, published in Oxford.

The Hill op-ed: Ruling by Decree

Driesen | Mar 07, 2017 | Good Government

The Cabinet and the Rule of Law

Driesen | Feb 06, 2017 | Good Government

Tax Credits and Public Spending on Infrastructure

Driesen | Jan 30, 2017 | Good Government

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