Op-Ed Shines Light on Trump EPA's Efforts to Re-Rig Cost-Benefit Analysis for Polluters

by James Goodwin | July 02, 2019

Last night, CPR Member Scholar Amy Sinden and I published an op-ed in The Hill explaining the dangers of a new rulemaking recently launched by Environmental Protection Agency (EPA) Administrator Andrew Wheeler and former air office Assistant Administrator Bill Wehrum. Through this rulemaking, Wheeler and Wehrum – both former industry lobbyists – will kick off the EPA's agency-wide effort to overhaul how it conducts cost-benefit analysis for its pending rules to ensure that this methodology remains heavily biased in favor polluters at the expense of people and our environment.

As the op-ed explains, cost-benefit analysis was always meant to provide industry with a powerful trump card in the rulemaking process. Industry expected its methodologies – while masquerading as objective and rational – would systematically favor weaker or no regulations. By and large, that held true for the nearly 40 years that cost-benefit analysis has ruled regulatory decision-making. But in the environmental policy context, two types of benefits have begun to threaten to unstack the deck that cost-benefit analysis offers to industry – those related to particulate matter and climate change. It turns out that addressing both these harms can be worth a lot of money, helping to justify clean air regulations, even when their primary purpose isn't to limit emissions of particulate matter or climate-disrupting greenhouse gases.

The Clean Air Act "benefits-busting" rule would change all that, providing the EPA with new tricks for burying or ignoring the ...

The Census Case and the Delegation Issue

by Daniel Farber | July 01, 2019
Originally published on Legal Planet. In a recent decision, four of the conservative Supreme Court Justices indicated a desire to limit the amount of discretion that Congress can give administrative agencies. If taken literally, some of the language they used would hobble the government by restricting agencies like EPA to "filling in the details" or making purely factual determinations. Some observers have feared that the conservatives were on the verge of dismantling modern administrative law. As I indicated in a ...

Replacing the CPP's Visionary Energy Planning with the ACE's Technical Tinkering

by Alice Kaswan | June 28, 2019
The Affordable Clean Energy (ACE) rule, the Trump administration's recently released substitute for his predecessor's Clean Power Plan (CPP), has been widely criticized as an ineffectual mechanism for addressing power plants' greenhouse gas (GHG) emissions. More broadly, the rule substitutes a technocratic, plant-by-plant approach for the more comprehensive and participatory state planning required by the now-repealed CPP. The ACE identifies a range of potential heat-rate improvements (usually efficiency improvements) at coal-fired power plants and then lets the states determine which ...

Justice Gorsuch versus the Administrative State

by Daniel Farber | June 27, 2019
Originally published on Legal Planet. Gundy v. United States was a case involving a fairly obscure statute regulating sex offenders, but some have seen it as a harbinger of the destruction of the modern administrative state. In a 4-1-3 split, the Court turned away a constitutional challenge based on a claim that Congress had delegated too much authority to the executive branch. But there were ominous signs that at least four Justices are willing to change the ground rules in ...

EPA Abandons Role at the Center of the Chesapeake Bay Accountability Framework

by Evan Isaacson | June 26, 2019
On June 21, the Environmental Protection Agency (EPA) released its evaluation of the third and final round of state Watershed Implementation Plans (WIPs) under the Chesapeake Bay restoration framework known as the "Bay TMDL" (Total Maximum Daily Load). EPA's evaluation of the seven Bay jurisdictions broke no new ground regarding the quality or contents of the states' plans, but instead reiterated many of the same findings and concerns expressed by advocates, including the ones I expressed with my colleague David ...

The 'Advancing Coal Energy' Rule? EPA's Misguided Approach to Carbon Emissions from the Dirtiest Power Plants

by Hannah Wiseman | June 26, 2019
The EPA released its finalized rule for carbon emissions from existing power plants last week. The agency calls the rule the "Affordable Clean Energy" (ACE) rule, but it would be better named the "Advancing Coal Energy" rule given its explicit aim to keep old, dirty coal-fired power plants running. A bit of background first for those who aren't familiar with the rule. The United States has made a great deal of progress cleaning up its power plants so they emit ...

Opinion Analysis: Virginia's Moratorium on Uranium Mining Is Not Pre-empted, but the Role of Legislative Purpose Remains Open for Debate

by Emily Hammond | June 18, 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 Supreme Court has concluded that Virginia's decades-old moratorium on uranium mining is not pre-empted by the Atomic Energy Act. But there is no clear answer to the question that pervaded the briefing and oral argument: What is the proper role for state legislative purpose in a pre-emption analysis? Monday's judgment was accompanied by three opinions: a lead opinion written by ...

A Meditation on Juliana v. United States

by Lisa Heinzerling | June 17, 2019
In a recent essay posted to SSRN, I try to see, and to appreciate, the wisdom in a species of climate litigation that has many detractors. This litigation asks the courts to hold the government and private parties judicially accountable for their active promotion and pursuit of climate-endangering activities, even after they knew better – even after they knew the terrible risks we faced if they continued on their preferred course. It calls upon venerable legal doctrines, deployed as modern ...

Pollution Bursts and Public Health

by Daniel Farber | June 13, 2019
Originally published on Legal Planet. When a facility installs and operates the required pollution control equipment, we normally think of the pollution problem as solved. But there still may be bursts of pollution associated with start-up, shut-down, accidents, or external events. A recent study of pollution in Texas shows that these events have substantial health impacts, involving significant deaths and overall costs of about a quarter billion dollars a year in that state. Ironically, the study comes out at the ...

Updates on the War on Science

by Daniel Farber | June 10, 2019
Originally published on Legal Planet. The Trump administration's hostile attitude toward science has continued unabated. The administration has used a triad of strategies: efforts to defund research, suppression of scientific findings, and embrace of fringe science. Budget. The administration continues to favor deep cuts in research support. Its initial 2020 budget proposal calls for a 13 percent cut to the National Science Foundation, a 12 percent cut at the National Institutes of Health, and elimination of the Energy Department's research support ...

Getting Ready for Conference on Regulation as Social Justice

by James Goodwin | May 31, 2019
Next Wednesday, June 5, CPR is hosting a first-of-its-kind conference on Regulation as Social Justice: Empowering People Through Public Protections, which will bring together a diverse group of several dozen advocates working to advance social justice to serve as a wellspring for the development of a progressive vision for the future of U.S. regulatory policy. Much of the day’s proceedings will be dedicated to an innovative form of small group discussion sessions that we refer to as “Idea Exchanges,” which ...

Trump EPA Hiding Hundreds of Deaths in Plain View

by Daniel Farber | May 28, 2019
According to press reports, EPA is preparing to ignore possible deaths caused by concentrations of pollutants occurring below the national ambient air quality standards (NAAQS). This is a key issue in a lot of decisions about pollution reduction. For instance, there is no NAAQS for mercury, but pollution controls on mercury would, as a side benefit, reduce pollution levels of harmful particulates. According to EPA’s prior cost-benefit analyses, those reductions could save many lives even in areas where current levels of ...

EPA's Partial Retreat on Cost-Benefit Analysis

by James Goodwin | May 22, 2019
In a memo sent last week but just now released, EPA Administrator Andrew Wheeler backtracked a bit on one of the administration's initiatives to undercut sensible safeguards. His May 13 memo abandons the agency's push last year to establish uniform standards for bending agency decision making in favor of cost-benefit analysis, regardless of statutory directives, and instead directs that this effort follow a statute-by-statute approach. Wheeler’s retreat on this particular effort to ignore the life-saving benefits of environmental rules is good ...

Achieving an 80 Percent Emissions Cut by 2050

by Daniel Farber | May 22, 2019
Originally published on Legal Planet. To do its part in keeping climate change to tolerable levels, the United States needs to cut its carbon emissions at least 80 percent below 1990 levels by 2050. That’s not just a matter of decarbonizing the electricity sector; it means changes in everything from aviation to steel manufacture, and reducing not only CO2 but also other pollutants like HFCs and black carbon. In a new book, Michael Gerrard and John Dernbach have assembled a team of authors to ...

CPR Member Scholars Feature Prominently in this Year's Duke Administrative Law Symposium

by James Goodwin | May 20, 2019
The annual Duke Law Journal Administrative Law Symposium has long served as one of the most prestigious fora for cutting-edge administrative law scholarship. This year's event, which featured the leadership and contributions of six CPR Member Scholars, was no exception. Each symposium is built around a theme, and this year's topic was "Deregulatory Games," which examined how the Trump administration's aggressive and often bizarre assault on our system of regulatory safeguards has tested the long-standing doctrines, norms, and institutions of ...

Here's How OSHA Can Improve Its Handling of OSH Act Whistleblower Cases

by Katie Tracy | May 16, 2019
The Occupational Safety and Health Act (OSH Act) guarantees workers the right to speak up about health and safety concerns in the workplace without reprisal. Specifically, Section 11(c) of the law provides workers the express right to report any subsequent employer retaliation against whistleblowers, such as demotion or firing, to the Occupational Safety and Health Administration (OSHA). Even with these protections, many workers fear retaliation if they report health and safety concerns. Workers who put their jobs on the line ...

Chesapeake Bay State Plans to Protect Watershed, Reduce Pollution Fall Short

by Brian Gumm | May 16, 2019
In April, states in the Chesapeake Bay watershed published drafts of the latest iteration of plans to reduce pollution and protect their rivers and streams. New analyses from the Center for Progressive Reform show that the plans fall far short of what is needed to restore the health and ecological integrity of the Chesapeake Bay. The draft plans, known as Phase III watershed implementation plans (WIPs), were developed as part of the Bay Total Maximum Daily Load (TMDL) framework that ...

What President Trump's Infrastructure Agenda Gets Wrong

by Alejandro Camacho | May 08, 2019
Originally published in The Regulatory Review. Reprinted with permission. At the outset of the Trump Administration, policymakers of all stripes hoped infrastructure might be an issue on which Congress and the President could reach bipartisan agreement. President Donald J. Trump stressed infrastructure needs during and after the 2016 election, and members of Congress from both parties asserted that repairing and upgrading infrastructure was a top priority. Recently, President Donald Trump and congressional Democrats claimed to make progress over the possibility of ...

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