CPR Archive for Bill Funk

An Unconstitutional Attempt to Roll-back Public Health Protections

by Bill Funk | June 03, 2015

Senator Rounds (SD-R) has introduced a proposed concurrent resolution to establish a Joint Select Committee on Regulatory Reform to address the alleged “regulatory overreach that is so prevalent in all sectors of the U.S. economy” by, among other things, conducting a “systematic review” of all rules adopted by federal agencies, supposedly in the name of reducing government expenditure and streamlining business procedures.  Ironically, Congress, if it wishes, can spend its otherwise valuable time having a committee engage in this procedure, while at the same time increasing the costs of government by requiring government agencies to appear at hearings and respond to subpoenas to answer once again why they are doing what members of Congress have by statute told them to do, in order to protect the public health, safety and environment of their constituents. This is political theater, no more, no less.

The other provisions in the resolution raise serious potential questions and thus require a closer look.  To begin with, the proposed concurrent resolution would also have the special committee analyze the feasibility of creating a Permanent Joint Committee on Rules Review with powers that would undoubtedly violate the Constitution, as explained below. The proposed resolution suggests that the permanent committee would require agencies to submit to the committee any proposed rule having an economic impact of $50 million or more along with an economic analysis of the rule.  This, by itself, raises no constitutional problem; ...

Executive Fiat or Business as Usual? Claims of Presidential Overreach are Just Politics

by Bill Funk | February 17, 2014
In his State of the Union Address President Obama announced that, while he intended to work with Congress to achieve various goals, he will act unilaterally, invoking his “executive authority,” pending congressional action.  There followed a laundry list of initiatives that he said he would take on his own.  Predictably, Republicans have railed against the President’s proposed actions, accusing him of subverting the rule of law.  It’s all just politics. First guilty party: President Obama.  For all his touted exercise ...

Myths and facts surrounding the Supreme Court’s review of GHG emission permitting

by Bill Funk | October 17, 2013
On Tuesday, the Supreme Court granted six of the nine petitions challenging a DC Circuit Court of Appeals ruling in favor of the EPA’s rules regulating greenhouse gases under the Clean Air Act. However, the Court granted review of only one aspect of the various petitions: whether the EPA’s use of vehicle emission standards to regulate greenhouse gases triggers permitting requirements for stationary power sources that contribute to carbon pollution. The regulations at issue implement the Clean Air Act’s Prevention ...

Time to Stand Up and Be Counted

by Bill Funk | September 30, 2013
Executive Order 12866 may be twenty years old, but formal, centralized review of agency rulemaking by the Office of Information and Regulatory Affairs (OIRA) is more than thirty years old, having been instituted by President Ronald Reagan in Executive Order 12291 in 1981. Since then, this centralized review has been carried out without significant change over five presidential administrations and has had bi-partisan support in both the House and Senate. Progressives have been less enamored with this review, seeing in it a ...

Government Seeks Certiorari on Clean Water Act’s Direct Review Provision in EPA v. Friends of the Everglades

by Bill Funk | July 17, 2013
Environmentalists know about the Environmental Protection Agency’s Water Transfer Rule. See 40 CFR § 122.3(i). It states in essence that discharging polluted water from one body of water to another unpolluted body of water is not a discharge of a pollutant under the Clean Water Act. According to the EPA, this action would not be regulated by the Act, because no pollutant is being “added” to the “waters of the United States.” There may be an addition of a pollutant to a ...

National Meat Association v. Harris: More Preemption in the Supreme Court

by Bill Funk | November 04, 2011
On November 9th the Supreme Court will hear oral argument in National Meat Association v. Harris, wading once again into the mire of federal preemption. The National Meat case involves a California statute that prohibits the slaughter of non-ambulatory animals for human consumption and requires that non-ambulatory animals be immediately and humanely euthanized. A federal law, the Federal Meat Inspection Act (FMIA), thoroughly regulates, although one could question how strictly, the process of slaughtering animals for human consumption. It also contains an express ...

In Williamson v. Mazda, SCOTUS Has Chance to Right Preemption Wrongs

by Bill Funk | November 01, 2010
Cross-posted from ACSblog. The Supreme Court will hear arguments on November 3 in a potentially important preemption case, Williamson v. Mazda Motor of America. In Williamson, a child was fatally injured in a collision when she was sitting in the center rear seat of a Mazda van, secured by a lap belt. The two other passengers in the vehicle, both wearing lap-shoulder belts, survived with minor injuries. The young Williamson, however, suffered severe abdominal injuries and internal bleeding because her ...

ABA Makes a Positive Step with Resolution on Agency Preemption

by Bill Funk | August 13, 2010
In November 2008, with Riegel v. Medtronic recently decided, bills introduced into Congress to overturn its effect, and Wyeth v. Levine about to be argued in the Supreme Court, the President of the American Bar Association created a task force to review ABA policies regarding preemption of state tort law. The composition of the task force was equally split between those who generally favor preemption and those who generally oppose it and included both private practitioners and academics (I was one ...

The Public Needs a Voice in Policy. But is Involving the Public in Rulemaking a Workable Idea?

by Bill Funk | April 13, 2010
Informal rulemaking under the Administrative Procedure Act was, as the late Kenneth Culp Davis opined, "one of the greatest inventions of modern government." It not only decreased the procedural requirements (and therefore the overhead) of “formal” rulemaking, but it also broadened the universe of persons able to participate in the informal proceeding to the public at large. Subsequently, other laws, such as the Freedom of Information Act, the Government in the Sunshine Act, and the Federal Advisory Committee Act, have ...

Obama's Memo on Preemption -- Striking a Blow for Good Government

by Bill Funk | May 22, 2009
On Wednesday, by the stroke of a pen, President Obama reversed a major Bush administration policy, striking another blow for good government. For eight years the Bush administration sought to accomplish tort reform by stealth and indirection with several agencies proclaiming in preambles to regulations that the regulations preempted state tort law. These agencies included the National Highway Traffic Safety Administration, the Federal Railroad Administration, the Consumer Product Safety Commission, and most notably the Food and Drug Administration. The FDA's ...

The First 100 Days: A Positive Beginning on the Freedom of Information Act

by Bill Funk | April 28, 2009
There are few areas where the difference between the Republican and Democratic parties is more stark than that of the Freedom of Information Act. The FOIA, of course, requires agencies to provide copies of their records to any person upon request unless the record fits within one of nine specific exemptions. Among the most important of these are the exemption for classified information, inter-agency or intra-agency communications containing advice or recommendations, information compiled for law enforcement purposes, and private commercial ...

Preemption: The Courts, the Executive, and Congress

by Bill Funk | August 07, 2008
There are three relevant actors in the preemption play: the courts, the executive, and the Congress. For various reasons, the mood of the Supreme Court at the present time is to limit tort actions generally. “Tort reform,” generally unsuccessful in state legislatures and Congress, is being implemented by the Supreme Court unilaterally. Daubert requirements for expert testimony, substantive due process limitations on punitive damages, and preemption of state tort law are three of the ways the Supreme Court is attempting ...

Also from Bill Funk

William Funk is the Lewis & Clark Distinguished Professor of Law at Lewis & Clark Law School in Portland, Oregon.

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