Top Ten Regulatory Policy Stories of 2019 (IMHO)

by James Goodwin | December 20, 2019

For many of us, the best way to characterize the past year in three words would be “too much news.” That sentiment certainly applies to the wonky backwater of the regulatory policy world. Today, that world looks much different than it did even just a year ago, and with still more rapid changes afoot, the cloud of uncertainty that now looms ominously over it doesn’t appear to be dissipating anytime soon. None of this is good for the health of our people, our democracy or our economy, and it’s certainly not good for the millions of working families struggling to keep their heads above water between paychecks.

Here, in no particular order, are 10 of the biggest developments from the past year that have contributed to this disquieting state of affairs.

  1. Nondelegation bullet dodged – for now. The case, Gundy v. United States, presented as clear cut an opportunity as there could be for the Supreme Court to institute a strict new approach to enforcing the nondelegation doctrine – long a top priority for small government ideologues intent on dismantling the regulatory system. At the time of oral arguments, though, Justice Kavanaugh had not yet been seated on the Court leaving the four other conservatives one vote short of a decisive majority in the case. In November, Kavanaugh used a rare statement in conjunction with the Court’s denial of an appeal of another case raising the issue, ...

Exxon's $75 Million Methane Leak

by Dave Owen | December 18, 2019
Reposted by permission from the Environmental Law Prof Blog. This morning E&E News reported that researchers from the Netherlands and the Environmental Defense Fund had quantified a massive natural gas leak at an Exxon-subsidiary-owned well in Ohio.  According to the study, the well leaked around 60,000 tons of methane. That made me wonder: what might the carbon tax bill for a leak like that be?  The answer, of course, is $0, because neither the United States as a whole nor the state of Ohio ...

Webinar Recap: Achieving Social Justice through Better Regulations

by James Goodwin | December 17, 2019
Last week, my CPR colleagues and I were honored to be joined by dozens of fellow advocates and member of the press for a webinar that explored the recent CPR report, Regulation as Social Justice: A Crowdsourced Blueprint for Building a Progressive Regulatory System. Drawing on the ideas of more than 60 progressive advocates, this report provides a comprehensive, action-oriented agenda for building a progressive regulatory system. The webinar provided us with an opportunity to continue exploring these ideas, including ...

2019 in Renewable Energy

by Daniel Farber | December 09, 2019
Originally published on Legal Planet. Reprinted with permission. Despite the efforts of the Trump administration, renewable energy has continued to thrive. Key states are imposing rigorous deadlines for reducing power generation from fossil fuels. Economic trends are also supporting renewables. In the first half of 2019, Texas produced more power from renewables than coal. Texas may be content to rely on market forces, but other states are taking a more active hand in shaping their energy futures. Here are the new ...

Low-Hanging Fruit

by Daniel Farber | November 25, 2019
Originally published on Legal Planet. Reprinted with permission. The idea of low-hanging fruit is ubiquitous in environmental policy – sometimes in the form of a simple metaphor, other times expressed in more sophisticated terms as an assumption of rising marginal costs of pollution reduction. It's an arresting metaphor, and one that can often be illuminating. But like many powerful metaphors, it can also mislead us badly. The idea behind the metaphor can be expressed in various ways, which can be equally ...

The EPA's 'Censored Science' Rule Isn't Just Bad Policy, It's Also Illegal

by James Goodwin | November 25, 2019
This post was originally published on the Union of Concerned Scientists' blog. Reprinted with permission. The Environmental Protection Agency (EPA) appears poised to take the next step in advancing its dangerous "censored science" rulemaking with the pending release of a supplemental proposal. The EPA presumably intends for this action to respond to criticism of the many glaring errors and shortcomings in its original proposal, hastily released in 2018. Unfortunately, if the leaked version of the supplemental proposal is any indication, ...

EPA's Draft Update to Its 'Science Transparency Rule' Shows It Can't Justify the Rule

by Sean Hecht | November 22, 2019
Originally published on Legal Planet. Reprinted with permission. Over a year ago, EPA issued a proposed rule, ostensibly to promote transparency in the use of science to inform regulation. The proposal, which mirrors failed legislation introduced multiple times in the House, has the potential to dramatically restrict EPA's ability to rely on key scientific studies that underpin public health regulations. The rule, on its face, would require EPA to take actions inconsistent with statutory mandates, including requirements to use the ...

The Essential Role of State Courts in Addressing Climate Harms

by Karen Sokol | November 21, 2019
This post was originally published by Expert Forum, a blog of the American Constitution Society. Reprinted with permission. In her opening statement on the second day of the House public impeachment hearings, former Ambassador to Ukraine Marie Yovanovitch recounted how President Trump and his personal lawyer Rudolph Giuliani undermined the State Department's ability to "promote stated U.S. policy against corruption." "If our chief [diplomatic] representative is kneecapped," she said, "it limits our effectiveness to safeguard the vital national security interests of ...

If You Care about the Climate Crisis, Here's What You Need to Know about Maryland's Clean Water Act Permit for Agricultural Pollution

by David Flores | November 19, 2019
Last month, former CPR policy analyst Evan Isaacson wrote in this space about Maryland's proposal to revise and reissue its Clean Water Act pollution permit for concentrated animal feeding operations (CAFOs). He made a convincing case that those who love the Bay need to advocate for effective and enforceable CAFO regulations. Traditionally, air pollution permits have been and will continue to be a critical component of climate policy in the United States, controlling emissions of greenhouse gas pollutants. But strong ...

On California, Climate Justice, and the Crucial Role of State Courts

by David Flores | November 12, 2019
As Californians endure yet another round of devastating wildfires, they are rightly wondering if blazes of such frequency and reach are the new normal. The hard truth is that they may very well be. The fingerprints of climate change are all over this disaster, as they have been all over recent hurricane damage, and the trendline is unmistakable. With that in mind, a new report from the Center for Progressive Reform takes a look at the situation in the Golden ...

Argument Analysis: Context Trumps Text as Justices Debate Reach of Clean Water Act

by Lisa Heinzerling | November 11, 2019
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). Click here to read Professor Heinzerling's argument preview for this case. The Clean Water Act requires a permit for the addition to the navigable waters of any pollutant that comes “from any point source.” Last Wednesday, the Supreme Court examined this clause during oral argument in County of Maui, Hawaii v. Hawaii Wildlife Fund. The question in this case is ...

Argument Preview: Justices to Consider Reach of Clean Water Act's Permitting Requirement

by Lisa Heinzerling | November 04, 2019
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). The central regulatory construct of the Clean Water Act is the requirement of a permit for the addition to the nation's waters of any pollutant that comes "from any point source." Congress' high hopes for the cleansing power of the act's permitting system are reflected in the name Congress chose for it – the "national pollutant discharge elimination system" – ...

Chemical Hazards Make Every Day at Work a Fright Fest

by Katie Tracy | October 31, 2019
On Halloween, nothing seems spookier than a chance encounter with a ghost or goblin, except maybe a zombie. But there is something much more haunting that happens every day. Across the United States, an average of 137 people die daily from occupational diseases caused by on-the-job exposures to toxic chemicals and other hazardous substances. Nearly 200,000 more suffer from nonfatal illnesses annually. This is no trick. There is no mystery here. In fact, in 2017, more people died from occupational ...

A Dozen Strategies for the Struggle With Big Oil

by Daniel Farber | October 28, 2019
Originally published on Legal Planet. Reposted by permission. The oil industry is enormous – something like 2 to 3 percent of global GDP. Individuals firms like ExxonMobil earn tens of billions of dollars each quarter. Controlling climate change will mean drastic curtailment in the coming decades of the industry’s major products. There’s no way that the industry will accept this lying down, and it’s a formidable opponent. To be successful, we will need a combination of strategies, aside from the rightness ...

The GAO's New Environmental Justice Report

by Dave Owen | October 24, 2019
Originally published on Environmental Law Prof Blog. Last Thursday, the Government Accountability Office released a new study on federal agencies and environmental justice. The narrow purpose of the report is to assess the extent to which federal agencies are implementing Executive Order 12898, which was issued by President Clinton in 1994 and theoretically remains in force, along with subsequent agency commitments, some made in response to prior GAO studies. For environmental justice advocates, much of the report will paint a ...

How to Improve Allocations of Regulatory Authority

by Alejandro Camacho | October 23, 2019
Originally published on The Regulatory Review. Reprinted with permission. Ever since Ronald Reagan declared government to be the problem rather than the solution, the federal bureaucracy has been the target of criticism from right-leaning think tanks, regulatory skeptics in academia, and politicians of all political persuasions. Lately, members of the federal judiciary have visibly joined this chorus of criticism. Among the charges leveled against regulation and the agencies responsible for issuing and enforcing rules is the claim that, even assuming ...

2020 in the Courts: A Preview

by Daniel Farber | October 22, 2019
Originally published on Legal Planet. There are going to be some significant environmental cases over the next year. In addition, some important new cases will be filed now or in the near future, which may produce some interesting rulings. It will probably take more than a year, however, for some of the big new cases down the turnpike to result in their first level of judicial opinions, let alone reach completion. The Supreme Court The Court agreed last spring to ...

If You Care about the Chesapeake Bay, Here's What You Need to Know about Maryland's Clean Water Act Permit for Agricultural Pollution

by Evan Isaacson | October 21, 2019
The many thousands of people in the Mid-Atlantic region who care deeply about restoring the Chesapeake Bay tend to be pretty knowledgeable about the causes of the Bay's woes and even some of the key policy solutions for restoring it to health. These concerned citizens may even be familiar with the term "TMDL," a legal concept within the Clean Water Act that is probably completely foreign to most of the rest of the country. But what even the most committed ...

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