CPR Archive for Nina Mendelson

Regulatory Review Needs to Comply with Transparency Requirements

by Nina Mendelson | October 03, 2013

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 ...

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

by Nina Mendelson | March 21, 2012
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 ...

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

by Nina Mendelson | January 04, 2012
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 ...

Holding Government and Emitters Accountable Under Boxer-Kerry

by Nina Mendelson | October 07, 2009
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 ...

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

by Nina Mendelson | April 16, 2009
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 ...

Waxman-Markey: Citizen Enforcement Suits

by Nina Mendelson | April 02, 2009
Normal 0 false false false EN-US X-NONE X-NONE MicrosoftInternetExplorer4 On Tuesday, March 31, House Energy and Commerce Committee Chairman Henry Waxman (D-CA) and Rep. Edward Markey (D-MA) released a “discussion draft” of the American Clean Energy and Security Act of 2009 – a climate change bill that will serve as the starting point for long-delayed congressional action on the world’s most pressing environmental program. CPRBlog asked several Center for Progressive Reform Member Scholars to examine different aspects of the 648-page ...

Wyeth Ruling a Victory for Consumers

by Nina Mendelson | March 04, 2009
This morning the Supreme handed down its ruling in Wyeth v. Levine. In its majority opinion, the Court rejected the argument of pharmaceutical giant Wyeth that the FDA’s approval of its label for Phenergan effectively “preempted” a tort suit brought against it by a patient claiming that the manufacturer failed to provide adequate warning about the dangers of the drug. The patient, Diana Levine, had the drug administered as part of treatment for a migraine, and ended up having her ...

The Omniscient Agency Myth

by Nina Mendelson | July 31, 2008
There are two issues kicking around in this discussion: (1) Should state tort law be preempted if there is some sort of federal regulation in place?   (2) Which institutions - particularly federal agencies and courts – are legally empowered and/or competent to decide that question? I’d like to chime in on (1), but I hope we’ll delve more deeply into (2) soon.    The effort to preempt state tort law depends in part on myths critiquing the tort system, which Tom ...

Also from Nina Mendelson

Nina Mendelson serves as Professor of Law at University of Michigan Law School.

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