Nina Mendelson on CPRBlog {Bio}

Regulatory Review Needs to Comply with Transparency Requirements

On this 20th anniversary of the regulatory review regime of Executive Order 12,866, the appropriate thing to do would be to take stock. Has centralized regulatory review, on balance, improved the quality of federal regulation or interfered with it?   Is this now-extensive regulatory review process worth it, given its costs? Sadly, the opaque quality of the process precludes a definitive answer.  

Readers familiar with regulatory review already know that Executive Order 12,866, issued by President Bill Clinton, significantly reaffirmed systematic, centralized White House review of agency rulemaking activity.  That Order built on the structure established in President Ronald Reagan’s 1981 Executive Order 12,291, both strengthening and modifying it in important ways.  And Reagan’s Executive Order in turn built substantially upon more tentative moves made by Presidents Nixon, Ford, and Carter.  EO 12,866 effectively settled three areas of bipartisan consensus (at least among Presidents) around regulatory review. First, review would be centralized. Executive agencies were not just ordered to refrain from publishing draft rules prior to “clearance” from the OMB Office of Information and Regulatory Affairs, but conflicts between the regulating agency and OMB (or other agencies) were expressly to be resolved by the President or Vice-President.  Second, presidential priorities would expressly guide agency rulemaking, whether or not the agency statutes referenced those concerns. EO 12,866 asked agencies to explain, for example, how each proposed rule was consistent with presidential priorities.   And third, agencies would have to comply with detailed analytical requirements such as cost-benefit analysis, aimed in part at achieving greater policy consistency and in part at some notion of improving the quality of agency rules. Thus, regulatory review joined the President’s other authorities – including appointments, removal, and budgetary control –aimed at increasing the responsiveness of the administrative state. 


Full text

SCOTUS Decision in Sackett v. EPA Weakens Government's Ability to Respond to Urgent Threats to Water Quality

In the Sackett v. EPA decision today, the Supreme Court rejected a broad argument that the Sacketts' constitutional due process rights had been violated when they could not go to court immediately to challenge an EPA order requiring them to remove fill and replant vegetation on their property. But the Court did hold that under the relevant statutes – the Clean Water Act and a broader statute authorizing judicial review of agency action, the Administrative Procedure Act – the Sacketts were entitled to judicial review of EPA's order as soon as EPA issued it. It rejected the agency's arguments that the Act ought to be understood to preclude judicial review until EPA brought an enforcement action in court. In so doing, it limited the usefulness of an important EPA enforcement tool.

The Sacketts' side of the case had a number of sympathetic aspects. Two individuals were up against a big federal agency, and the agency was requiring them to remove fill and plant vegetation on their own property. It is also a case involving wetlands. As the Court pointed out in today's decision, there is significant – and ongoing – uncertainty about just which wetlands are protected by federal law. Neither the Court nor EPA has done much to clarify that.

But the decision's effect may go significantly beyond wetlands. It also may interfere with the EPA's ability to respond quickly to protect the nation's waterways from all kinds of threats, including threats we can all agree are urgent. These might include overflowing lagoons from concentrated animal feeding operations (CAFOs), malfunctioning sewage treatment plants, or the discharge of high volumes of pollutants from a factory outfall or a mine into a river. EPA is likely to be stuck in litigation over compliance orders not only in wetlands cases, but in these cases of obviously urgent threats to water quality. It may use compliance orders less often and when it does use them, it may take much longer for the orders to go into effect. 

Moreover, similar, though not identical, language appears in the Clean Air Act and the Solid Waste Disposal Act. EPA is likely to face arguments about judicial review of compliance orders in these settings, too. It may be that Sackett also ultimately affects the usefulness of compliance orders to address environmental threats not only for water pollution, but from air pollution and from solid waste disposal. Congress should amend the Clean Water Act, as well as these other acts, to clarify, at least for urgent environmental threats, that judicial review of a compliance order should have to wait.

Full text

In Sackett v. EPA, Troubling Potential for SCOTUS to Undermine Government's Ability to Promptly Respond to Environmental Threats

On January 9th, the Supreme Court will hear Sackett v. EPA, which concerns whether an individual has a right to a judicial hearing before, rather than after, an agency finalizes a so-called administrative compliance order.  The case has important potential to undermine the environmental protection, including the government’s ability to promptly respond to environmental threats such as factory outfalls leaking pollutants into rivers. 

The lawsuit involves an Idaho couple, Chantell and Mike Sackett, with a .63 acre property overlooking Priest Lake, Idaho. The Sacketts cleared and filled about a half acre of the property with gravel to ready it for building a house.  EPA officials discovered the fill and notified the couple that they had filled a “jurisdictional wetland,” meaning a wetland covered by the federal Clean Water Act.  (Mike Sackett has publicly stated that although the property could get “wet” in the spring, it was not, in his view, a wetland.)  EPA issued a so-called Administrative Compliance Order directing the couple to remove the fill and replace the vegetation they had cleared.  If EPA follows up the order with a judicial enforcement action and a judge agrees that the Sacketts violated the Clean Water Act, the trial court could impose civil penalties of up to $37,500 for each day the Sacketts were not in compliance.  The exact amount of penalties would be up to the trial court, considering factors such as the Sacketts’ good faith in complying with the Act, the seriousness of the violation, and “such other matters as justice may require.”  A court could also agree with the Sacketts that they did not violate the Clean Water Act, find the order invalid, and dismiss EPA’s lawsuit outright.  The Sacketts do not wish to wait for EPA to seek civil penalties to have a court hear their arguments, however.  What they seek is judicial review prior to EPA’s issuing the Administrative Compliance Order. 

Full text

Holding Government and Emitters Accountable Under Boxer-Kerry

This post is the fifth in a series from CPR Member Scholars examining different aspects of the Boxer-Kerry bill on climate change, which was released September 30.

To expand a bit on some of what Bill Buzbee discussed in his excellent analysis of the Boxer-Kerry bill on CPRBlog, it is critical to ensure that the implementation of a new climate change regime is done in a way that is prompt and efficient, but also accountable. An effective bill needs to hold government and private actors accountable for their new climate change obligations and actions. Such accountability is key to ensuring that there is confidence in the new cap-and-trade market and that we actually obtain the greenhouse gas reductions we need. In particular, we should focus on the citizen enforcement provisions of the bill and the management of offsets.

The bill incorporates the Clean Air Act enforcement provisions, including its citizen suit provisions that allow citizens to sue government to force it enforce the law (sections 126-27). That’s good. But it would be even better if the bill had its own citizen suit provision, as Bill Buzbee notes. Further, the bill would be even stronger if it made an effort to clarify the uncertain law on standing -- whether and which citizens can bring claims to help avert climate change. As I wrote in my blog entry on Waxman-Markey, citizen enforcement suits are a critical supplement to government enforcement of the law’s violations against greenhouse gas dischargers and a means of holding government itself accountable for carrying out environmental programs properly. Citizen standing is a particularly challenging issue because of the widespread nature of the harm from global warming – it will be difficult to say that any individual citizen’s harm is “particularized” and distinctively different from the harm suffered by others. A clear congressional indication that citizens should be able to bring claims despite the widespread nature of the harm is likely to be helpful in the courts. The bill would be stronger if it added such language to a citizen suit provision.

Full text

An Attack on Waxman-Markey That's a False Alarm

On Friday, the Washington Times went A1 above-the-fold with "Climate bill could trigger lawsuit landslide."

Environmentalists say the measure was narrowly crafted to give citizens the unusual standing to sue the U.S. government as a way to force action on curbing emissions. But the U.S. Chamber of Commerce sees a new cottage industry for lawyers.
"You could be spawning lawsuits at almost any place [climate-change modeling] computers place at harm's risk," said Bill Kovacs, energy lobbyist for the U.S. Chamber of Commerce.
Quite simply, this is a false alarm. One week before the Washington Times "Exclusive" on the citizen enforcement suit provisions in Waxman-Markey, I wrote here about the provisions. They are important, and good. And they're not exactly radical. Full text

Waxman-Markey: Citizen Enforcement Suits

By setting solid targets for reducing global warming in a cap-and-trade system and including a host of other helpful provisions, the Waxman-Markey bill is a terrific first contribution to this Congress's debate on climate change. A less obvious but still extremely positive aspect of the bill is its approach to citizen enforcement of the laws. In addition to government enforcement provisions, the bill includes strong citizen suit provisions. It reaffirms the importance of citizen enforcement of the environmental laws against both potential violators and agencies that have the responsibility to implement the regime. Citizens have traditionally had this enforcement power under the environmental laws, but it has recently been threatened by a series of judicial decisions. The Waxman-Markey bill responds to these judicial decisions and strives to ensure the vitality of citizen suits. Full text

Wyeth Ruling a Victory for Consumers

Center for Progressive Reform Member Scholar Nina Mendelson reacts to the Supreme Court's decision in Wyeth vs. Levine. Full text

The Omniscient Agency Myth

Full text