CPR Archive for William Buzbee
New York Times Op-ed: Regulatory 'Reform' That Is Anything But
This op-ed originally ran in The New York Times.
After decades of failed efforts to enact "regulatory reform" bills, Congress appears to be within a few votes of approving reform legislation that would strip Americans of important legal protections, induce regulatory sclerosis and subject agencies that enforce the nation's laws and regulations to potentially endless litigation.
This is not reform. These bills would sabotage agency regulation with legislative monkey wrenches. Key compromises about agency power and procedures, worked out under the 1946 Administrative Procedure Act, would be discarded by these overwhelmingly anti-regulatory bills. And because they would be statutory changes, not mere presidential edicts, these changes would likely long outlive the Trump administration.
It is easy to complain about regulation, of course, and much could surely be improved. But government rules are the foundation of the safety net that protects Americans. Are you ready to abandon protections of your drinking water? What about that school hamburger? Is it O.K. to eat? Can you depend on Medicare or Medicaid? Are toys safe? Can workers fight overtime violations or discrimination? Will government agencies be there to police mortgage, student-loan and retirement-savings abuses? Will the education of special-needs students be protected?
Few members of Congress would dare vote directly to eliminate protections like those. But by imposing a byzantine, burdensome process on all agencies, Congress could dodge accountability but nonetheless derail the implementation of popular laws.
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Federalism Games in the Clean Power Plan Battle
Next Tuesday, the U.S. Court of Appeals for the D.C. Circuit will hear four hours of argument over the Clean Power Plan (CPP). Federalism-linked statutory, regulatory, and doctrinal law has been and will be crucial to the CPP's fate, and several issues of federalism will play a key role. In designing the CPP, the U.S. Environmental Protection Agency built on states' actions in reducing greenhouse gas (GHG) emissions in recent years through use of GHG trading regimes, and nudging or
The New Final 'Waters of the United States' Rule: Separating Rhetoric and Reality
William W. Buzbee, Professor of Law, Georgetown University Law Center, offers his comments here regarding the May 27, 2015 released final rule and accompanying materials regarding what waters are federally protected “waters of the United States.” Professor Buzbee is also a founding member-scholar of the Center for Progressive Reform. He has testified repeatedly before congressional committees about these issues and in 2006 served as co-counsel for an unprecedented bipartisan amicus brief of former US EPA Administrators filed with the Supreme
EPA’s Proposed Power Plant Regs: Solid Legal Footing, Considerable Flexibility
On June 2, 2014, the United States Environmental Protection Agency issued its much awaited and debated proposed Clean Air Act Section 111(d) regulations to reduce greenhouse gas (GHG) emissions from existing electric utility generating units, colloquially referred to as power plants. And because the largest GHG emitters in this category are coal burning plants, such plants and linked businesses and coal-intensive jurisdictions all have nervously awaited these proposals. In an earlier blog analysis, I assessed the statutory language and how
Regulating Existing Power Plants Under Clean Air Act 111(d) (Part I): The CAA's Language & Structure
In late September, the EPA proposed regulation of new power plants’ greenhouse gas emissions (GHGs) under the Clean Air Act’s “New Source Performance Standards” (NSPS) provisions. Now an often little noticed follow-on provision—Section 111(d)--- is suddenly in the spotlight. Section 111(d) requires regulation of existing sources that are in categories of polluters subject to NSPS regulation. President Obama, EPA, industry, environmental groups, and states have all entered the fray about what Section 111(d) requires and allows. This issue presents several important choices and
The Ongoing Waters War: Understanding the Firestorm Over US EPA’s Massive Draft Report and New Army Corps and EPA Proposed Rule on Connectivity of America’s Waters
On September 17th, 2013, US EPA released a massive 331 page draft report distilling peer reviewed science regarding “connectivity” of various sorts of American water bodies with larger bodies of waters, such as rivers and lakes. It also sent to the White House for review a draft proposed rule about how it and the Army Corps of Engineers would determine what sorts of waters would count as “waters of the United States” subject to federal jurisdiction under the Clean Water
How the LA County Flood Control District MS4 Case SCOTUS Loss is a Win for the Clean Water Act
The Supreme Court ruled today that the 9th Circuit committed a legal error in holding the Los Angeles County Flood Control District liable for violations of its Clean Water Act (CWA) “municipal separate storm sewer system” (or MS4) pollution discharge permit. The suit, Los Angeles County Flood Control District v. Natural Resources Defense Council, had been initiated by NRDC and allied environmental groups, and its victory below was reversed. A loss for the environment? Actually, the careful and narrow Supreme Court ruling
Williamson v. Mazda: Sound and Clear Preemption Decision
The Supreme Court today issued its much-awaited ruling in Williamson v. Mazda. Could an injured or deceased plaintiff sue under common law for damages allegedly attributable to the lack of a rear inner seat seatbelt, when the Department of Transportation (DOT) had declined to require such belts while requiring other seat belts? The case on its face appeared much like the Court’s earlier Geier v. American Honda Motor Co decision, issued in 2000, in which the Court held that a common
Climate Legislation Federalism Choices: Reflections After Murkowski, Brown and in Anticipation of the Forthcoming Kerry-Graham-Lieberman Bill
Federalism battles over state roles under federal climate legislation may have appeared settled, but they are once again under debate. The previous leading bills–the Waxman-Markey bill passed by the House, and the Boxer-Kerry bill passed out of a committee in the Senate–lost momentum several months ago. After several months of legislative inaction, Senators Kerry, Graham, and Lieberman have been working on a new piece of climate legislation. After the senators’ comments indicated that this bill might broadly undercut state and
Boxer-Kerry: Measures to Address Error and Illegality
This post is the fourth in a series from CPR Member Scholars examining different aspects of the Boxer-Kerry bill on climate change, which was released September 30 The Boxer-Kerry bill released on September 30, 2009 is yet another massive piece of proposed legislation. And it is likely to get even larger as details are added regarding distribution of pollution allowances, and as other gaps and shortcomings are addressed. Its basic architecture and enforcement provisions, however, give us a good feel for the
Waxman-Markey: Federalism Battles
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 Waxman-Markey bill. This entry, by William Buzbee, examines if
The Supreme Court's Decision on Standing in Summers vs. Earth Island Institute
On March 3rd, the Supreme Court issued its much awaited decision in Summers v. Earth Island Institute. This was the latest in a series of cases dating to the early 1990s where the central question has concerned citizen standing: will the courts allow a citizen to stand before a court to argue that government or private action violates the law? In Summers, the environmentalists' challenge involved a few layers. The real legal challenge raised by the environmentalists was to