As EPA Embarks on Dangerous Experiment in Federalism, How Will States Respond?

by Evan Isaacson | March 20, 2017

In the early 1970s, Congress passed the Clean Air Act and Clean Water Act on nearly unanimous votes. The overwhelming support for these new laws reflected not only the horrific condition of America’s air, water, and landscape at the time, but also an appreciation of the collective action problem states faced, necessitating federal action.

The major environmental laws that passed in the following years were predicated on the need to set a federal floor for environmental standards in order to provide all Americans with a basic right to clean air, safe water, and a healthy environment, no matter the state they lived in. The laws also represented an understanding that states were no more likely to act alone in investing in new regulatory programs than a business would be to self-regulate without corresponding action from its competitors.

The clear consensus, then, was that the federal government must act to end the race to the bottom among states, setting minimum standards for all 50 states that some could then choose to exceed. Fast forward 40-plus years, and we must now contemplate what happens when the federal government takes a sledgehammer to the regulatory floor.

The new EPA administrator, Scott Pruitt, made his bones as a champion of the federalist approach to environmental regulation. And even though this ideological cloak is one that Pruitt will be quick to doff when it suits his true guiding interest in deregulation, we can ...

President's Reckless Budget Proposal Would Gut Agencies, Endanger Our Health and Environment

by Matt Shudtz | March 16, 2017
As part of a coalition of public interest organizations working toward a responsible federal budget that protects people and the planet, I released the following statement on President Trump's reckless budget proposal that guts the EPA, eliminates federal funding for the Chesapeake Bay cleanup effort, and more.  "The president's 'skinny budget' is a particularly apt description for a proposal that would leave crucial protector agencies too emaciated to safeguard our health, safety and environment. Whether it's pipeline inspectors to protect ...

Attacking Regulation Using Slogans, Not Analysis

by Joseph Tomain | March 13, 2017
The Trump administration’s fundamental hostility to government is by now plainly apparent. The President issued an executive order requiring agencies to get rid of two regulations for each new one that is adopted. He appointed administrators who have been extraordinarily hostile to the missions of the departments and agencies that they now head, such as Scott Pruitt at EPA and Betsy DeVos at the Department of Education. And he has proposed deep budget cuts for regulatory agencies. Instead of the ...

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 ...

Myths, Realities, and the Clean Water Rule Controversy

by Dave Owen | March 06, 2017
Originally published on Environmental Law Prof Blog by CPR Member Scholar Dave Owen. Last Tuesday, President Trump signed an executive order directing EPA and the Army Corps of Engineers to begin work on a new rule defining the scope of federal jurisdiction under the Clean Water Act. The rule, if and when it is finalized, would replace the "Clean Water Rule" released by EPA and the Corps during the summer of 2015. Much of the political rhetoric surrounding the Clean Water Rule has suggested ...

Catching Up on CPR's Recent Op-Edery

by Matthew Freeman | March 06, 2017
Unless you regularly read newspapers from markets ranging from Baltimore to Houston to the San Francisco Bay area, chances are that you missed some of the op-eds that CPR’s scholars and staff published in the nation’s newspapers in February. We post links on our website, of course; you can find them on the various issue pages, as well as on our op-eds page. But we thought CPRBlog readers might appreciate a quick rundown from last month, so here goes: In ...

Recent Trump Anti-Reg Order Could Breathe New Life into Dangerous Old Law

by James Goodwin | March 03, 2017
The first rule of reading anti-regulatory bills, executive orders, and other policy prescriptions is: Sweat the hyper-technical, anodyne-sounding stuff. And President Donald Trump's February 24 executive order on "Enforcing the Regulatory Reform Agenda" demonstrates why this rule exists.  One of the order's provisions – which no doubt caused glaze to form over many an eye – read: "[E]ach Regulatory Reform Task Force shall attempt to identify regulations that . . . are inconsistent with the requirements of section 515 of ...

Congress Wants Land Agency to Ignore the Facts and Future

by Robert Glicksman | February 28, 2017
Imagine you come across a colleague sitting at his desk amid piles of yellowed papers. When you ask what he is working on, he says it's his annual family budget. "What's with all the old papers?" you might ask. "Oh," he replies, "I always work my new budget off my receipts and bills from 1983, the year we married. Some of them are getting pretty hard to read." "Don't you keep updated records?" you might ask. "And haven't your family ...

Environmental Federalism and Scott Pruitt -- We've Been Here Before

by Evan Isaacson | February 27, 2017
The ascension of Scott Pruitt as Administrator of the Environmental Protection Agency (EPA) ushers in a new chapter in the long story of cooperative federalism in the administration of U.S. environmental laws. Pruitt's words and actions as the Attorney General of Oklahoma suggest that, as much as any other issue, idea, or policy, federalism will be a recurring theme. But are the cries about federalism really about finding the proper balance of state and federal roles in implementation of our ...

Why the REINS Act Is Unconstitutional

by Bill Funk | February 14, 2017
The so-called Regulations from the Executive In Need of Scrutiny Act (REINS Act) has already passed the House this year, as it did in previous sessions. The current version, which amends the Congressional Review Act (CRA), differs somewhat from previous versions but still suffers from a fatal flaw – it is unconstitutional.  The current REINS Act has three parts. One part essentially reflects the recent Executive Order on Reducing Regulation and Controlling Regulatory Costs, except that the REINS Act only ...

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 ...

Trump's Latest Executive Order: Scrap Two Regs for the Price of One

by Amy Sinden | January 31, 2017
Remember how Donald Trump bragged he was going to run the country like a business? Imagine if before Trump could open a new casino, he was bound by a rule to close two existing casinos, and the costs of the new casino couldn't exceed the cost savings from no longer operating the old ones. Would this make sense as a business strategy? Of course not. Unless, of course, you were secretly trying to sabotage the business and run it into the ...

You Can't Always Get What You Want

by Matt Shudtz | January 31, 2017
As long as Donald Trump is in the White House, progressives should harbor no delusions that the Administrator of the Environmental Protection Agency (EPA) is going to be a wool-socks-in-Birkenstocks tree hugger. Scott Pruitt is certainly no such individual. But nor is he a person with the experience, depth of understanding of the agency’s programs, or temperament to run the agency. The job of EPA Administrator under President Trump will surely prove to be the most thankless cabinet-level job. Trump ...

Andrew Puzder Should Not Be the Next Labor Secretary

by Katie Tracy | January 30, 2017
The Senate Labor Committee will hold a confirmation hearing Feb. 7 on President Donald Trump's nomination of Andrew Puzder as Secretary of Labor. If confirmed by a vote of the full Senate, Puzder will oversee all of the agencies and departments within the Department of Labor, including the Occupational Safety and Health Administration (OSHA), the Wage and Hour Division (WHD), and the Office of Federal Contract Compliance Programs (OFCCP). This is troubling, to say the least, because a look at Puzder's ...

Distracter-in-Chief

by Matthew Freeman | January 25, 2017
Only a few days into the Trump administration, and a “gang that doesn’t shoot straight” narrative is taking root in the media. From outright lies about crowd numbers at the inauguration, to fictionalized accounts of millions of illegally cast votes, to hashtag-ready assertions about “alternative facts,” it’s been a rough start, and the media is covering it all, exposing the dishonesty. That, at least, is how I imagine the conversation is going in Washington, D.C., news bureaus. But while all ...

CPR Statement: Rep. Mick Mulvaney Should Not Be Confirmed to Lead the Office of Management and Budget

by Brian Gumm | January 24, 2017
NEWS RELEASE: Rep. Mick Mulvaney Should Not Be Confirmed to Lead the Office of Management and Budget                                                                                                              Today, the Senate Committees on Budget and Homeland Security ...

For 2017: Grit, Hope, and Cher's Feathers

by Robert Verchick | December 31, 2016
My, but the year 2016 has been a humdinger, a whopper, a real sockdolager. Donald Trump is measuring drapes for the White House. His allies in the Republican Party hold both chambers of Congress. At the state and local levels, Democratic influence is at historic lows. Did I mention there are more than a hundred vacancies on the federal court to be filled by a soon-to-be President Trump, including an open seat on the Supreme Court?  I will not lie. ...

The Plagiarism Caucus

by Matthew Freeman | December 21, 2016
My wife is a high school history teacher, and pretty much every year, she has at least one story to tell about a student lifting some significant chunk of text from a website and using it in a paper without attribution. The kids get caught by those nifty anti-plagiarism search engines teachers use, which are about as heartless and automatic as those unmanned, and frankly, unsportsmanlike, speed cameras that dot my neighborhood streets. I suppose it’s easier to accidently plagiarize ...

Regulatory Policy

When it comes to health, safety and the environment, executive branch enforcement of the law has become yet another arena to fight and re-fight policy battles presumably settled in Congress. In particular, regulated entities, including companies that pollute or  make potentially dangerous products, spend millions working to block, delay, and unravel such protections.

Attacking Regulation Using Slogans, Not Analysis

Tomain | Mar 13, 2017 | Regulatory Policy

Catching Up on CPR's Recent Op-Edery

Freeman | Mar 06, 2017 | Regulatory Policy

Why the REINS Act Is Unconstitutional

Funk | Feb 14, 2017 | Regulatory Policy

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