Kavanaugh's Threat to Government Transparency and Accountability

by Daniel Farber | July 19, 2018

Presidents control crucial government agencies with authority over the environment, food and drug safety, and workplace conditions. Through various environmental, health, safety, and other laws, Congress has given these agencies broad authority to issue rules and regulations that affect the lives of every American. But current law provides safeguards against arbitrary decisions – safeguards that Judge Brett Kavanaugh would weaken or eliminate if confirmed to the U.S. Supreme Court.

These safeguards are designed to promote public input and force agencies to disclose their evidence and reasoning to public scrutiny. Agencies must disclose proposed rules, obtain public comment, and then provide explanations of their decisions. As interpreted by the courts, this means an agency has to provide enough information to allow substantive comments, and it has to give a reasoned explanation for its decisions. But Kavanaugh seemingly wants to give agencies much more ability to hide the ball. 

In a case called American Radio Relay League v. FCC, Kavanaugh advocated radical surgery on current safeguards. Briefly, the case involved a Bush-era FCC approval of a promising new technology for using power lines to supply broadband internet, which could result in radio interference. Based on studies by its staff, the FCC decided that a few simple precautions would prevent any serious interference. But it didn't release the studies until it was sued under the Freedom of Information Act. And even when its decision was being reviewed by a court, it ...

Duluth News Tribune Op-Ed: U-turn on Twin Metals a Massive Giveaway of Irreplaceable Public Resources

by Alexandra Klass | July 17, 2018
This op-ed originally ran in the Duluth News Tribune. Any Minnesotan who has ever dipped a canoe paddle, pitched a tent, or laced up a hiking boot while visiting the Boundary Waters Canoe Area Wilderness can tell you why it is the nation's most-visited wilderness area and considered a crown jewel of Minnesota. Unfortunately, Twin Metals, a subsidiary of the Chilean mining giant Antofagasta PLC, has its eye on the area in hopes of operating a sulfide-ore copper-nickel mine, bringing one ...

If Confirmed, Kavanaugh Would Tilt Supreme Court against Public Protections

by Matt Shudtz | July 10, 2018
Last night, President Donald Trump set the stage for a contentious debate about American social and economic welfare in the decades to come, nominating a Washington insider with a narrow worldview to the Supreme Court. Brett Kavanaugh's opinions on issues related to reproductive and civil rights are at the forefront of many voters' minds, but there's another danger that deserves just as much attention: What Kavanaugh would do on issues involving protections for consumers, workers, and the environment if confirmed ...

Senate Must Preserve Rule of Law When Considering Benczkowski and Pruitt's Successor

by David Driesen | July 09, 2018
In addition to deciding the fate of a Supreme Court nominee, the Senate must soon consider whether to approve Brian Benczkowski as head of criminal enforcement for the Department of Justice and a nominee to replace Scott Pruitt as EPA administrator. In early 2017, I urged senators to fulfill their constitutional responsibilities by only approving nominees who would faithfully execute the laws of the United States. But the Senate approved Pruitt anyway, with disastrous results. The chamber now needs to ...

Borrowing from CPR Playbook, Small Business Administration Brings New 'Win-Win' Approach to Regulations

by James Goodwin | July 05, 2018
When it comes to regulatory protections for health, safety, and the environment, the Small Business Administration (SBA) and its Office of Advocacy don't always put the public interest first. Falling in line with industry and small-government conservatives, it often opposes public protections, particularly where small businesses are concerned. So I was delighted to see a faint ray of sensibility peek through the SBA's usual anti-safeguard cloud last week when it issued a press release announcing its collaboration with a professional ...

The Chevron Doctrine: Is It Fading? Could That Help Restrain Trump?

by Daniel Farber | July 02, 2018
Cross-posted from LegalPlanet. In June, the Supreme Court decided two cases that could have significant implications for environmental law. The two cases may shed some light on the Court's current thinking about the Chevron doctrine. The opinions suggest that the Court may be heading in the direction of more rigorous review of interpretations of statutes by agencies like EPA and the SEC. That could be important as Trump's deregulatory actions start hitting the judicial docket. Thus, in the short-run, limiting Chevron ...

Scott Pruitt Wants to Pick Winners and Losers by Cooking the Books at EPA

by James Goodwin | June 28, 2018
UPDATE (July 2, 2018): EPA has granted a one-month extension to its original comment period. Public comments on the advance notice of proposed rulemaking are now due on August 13. Soon after his confirmation, EPA Administrator Scott Pruitt quickly set out to take a "whack-a-mole" approach to advancing his anti-safeguard agenda, attacking particular rules designed to protect Americans and the environment from specific hazards – climate change, various air and water pollutants, and so on – one by one. But ...

At Small Business Hearing, CPR's Ristino Will Connect the Dots between Strong Safeguards and Strong Small Farms

by James Goodwin | June 21, 2018
This morning, CPR Member Scholar and Vermont Law School Professor Laurie Ristino will testify at a hearing before the Subcommittee on Agriculture, Energy, and Trade of the House Small Business Committee. The majority's not-so-subtle objective for the hearing is to apply familiar conservative talking points against federal regulations to the specific context of small farms.  In contrast to the subcommittee majority's three witnesses, all of whom represent industry trade associations that have strongly criticized environmental and other regulations in the ...

Deconstructing Regulatory Science

by Wendy Wagner | June 19, 2018
Originally published on The Regulatory Review. Reprinted with permission. The U.S. Environmental Protection Agency (EPA) Administrator Scott Pruitt recently opened another front in his battle to redirect the agency away from its mission to protect human health and the environment. This time, he cobbled together a proposed rule that would drastically change how science is considered during the regulatory process. Opposition soon mobilized. In addition to the traditional forces of public interest groups and other private-sector watchdogs, the editors of the ...

Agency U-Turns

by Daniel Farber | June 18, 2018
Cross-posted from LegalPlanet. The Trump administration is doing its best to wipe out Obama's regulatory legacy. How will the courts respond to such a radical policy change? The philosophical clash between these last two presidents is especially stark, but this is far from being the first time that agencies have taken U-turns. This is the fifth time in the past 40 years that control of the White House has switched parties, with accompanying changes in regulatory approaches. Yet the underlying statutory ...

Laying Down the Law on Rule Delays

by Lisa Heinzerling | June 14, 2018
Originally published on The Regulatory Review. Reprinted with permission. Since the Reagan administration, it has become commonplace for new presidential administrations, in one of their first official acts after inauguration, to freeze at least some pending regulatory actions of the prior administration. These freezes have been of varying breadth and have taken varying forms. The Trump administration’s regulatory freeze was notable for its sweeping scope and blunderbuss execution. In the early months of President Donald J. Trump’s presidency, agencies delayed many ...

Symposium on Regulatory Safeguards Features Warren, Frosh, Three CPR Scholars

by James Goodwin | June 04, 2018
Tuesday afternoon, three CPR Member Scholars – William Buzbee, Lisa Heinzerling, and Rena Steinzor – will be among the experts featured at a major symposium on the threats facing our system of regulatory safeguards. The symposium, The War on Regulation: Good for Corporations, Bad for the Public, was organized by the Coalition of Sensible Safeguards (CSS), which CPR co-leads as an executive committee member, and will include a keynote address from Sen. Elizabeth Warren (D-MA) and closing remarks from Maryland ...

Shapiro Takes on Pruitt's Pseudo-Transparency Rule

by Matthew Freeman | May 29, 2018
While most of the press EPA Administrator Scott Pruitt is getting these days has to do with his various over-spending scandals, his more lasting impact is likely to be his scorched-earth approach to environmental protections. In an op-ed in The Hill earlier this month, CPR’s Sid Shapiro highlighted one way Pruitt hopes to make an across-the-board, anti-environment impact: By limiting the scope of scientific studies that his agency may consider when developing safeguards. Under the guise of greater transparency, Pruitt ...

Trump's OSHA to Roll Back More Worker Safeguards, Slow Walk Others

by Katie Tracy | May 14, 2018
The White House released its Spring 2018 Unified Agenda of Regulatory and Deregulatory Actions on May 9 with little fanfare. A close examination of the agenda for the Occupational Safety and Health Administration (OSHA) shows that protecting worker health and safety is anything but a priority for the Trump administration. Rather, the agency will continue to focus on weakening worker protections. OSHA's spring agenda lists 20 planned activities – 15 carryovers from the fall agenda, four agenda items moved from ...

Senators' Letter Brings Welcome Oversight to Troubled White House Office

by James Goodwin | May 10, 2018
Yesterday, six senators, led by Sen. Maggie Hassan of New Hampshire, criticized Trump administration "regulatory czar" Neomi Rao and her office for what appears to have been a slapdash review of a highly controversial Environmental Protection Agency (EPA) draft policy designed to stifle the agency's progress on advancing environmental and public health protections. Rao is the administrator of the White House Office of Information and Regulatory Affairs (OIRA), a small but powerful bureau located within the Executive Office of the ...

New Report: It's Time to Repeal the Congressional Review Act

by James Goodwin | May 02, 2018
Over the last couple of weeks, conservatives in Congress have continued their assault on public safeguards using the once-obscure and once-dormant Congressional Review Act (CRA). If their latest adventure succeeds, it will be the 16th public protection that these members, working with in concert with President Donald Trump, have obliterated over the last year, laying waste to a broad and diverse range of measures related to public health, safety, the environment, and consumer financial protection.  The anti-safeguard lawmakers behind these ...

The Questionable Legal Basis of the EPA 'Transparency' Proposal

by Daniel Farber | April 30, 2018
"They sat at the Agency and said, 'What can we do to reimagine authority under the statutes to regulate an area that we are unsure that we can but we're going to do so anyway?'" When he said those words, Scott Pruitt was talking about the Obama administration. But it seems to be a pretty accurate description of the "transparency" proposal he issued last week. Everyone agrees that it would be good to increase the public availability of scientific information ...

Workers' Memorial Day 2018

by Katie Tracy | April 25, 2018
On Saturday, April 28, CPR will observe Workers' Memorial Day by remembering fallen workers whose lives were taken from this world too soon and by renewing our pledge to fight for all working people.  Every day in this country, 14 workers leave for work, never to return home. One worker is killed on the job every two hours in the United States. In 2016, 5,190 workers died earning a living, the highest number on record in eight years. That doesn't ...

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.

The Center for Progressive Reform

455 Massachusetts Ave., NW, #150-513
Washington, DC 20001
info@progressivereform.org
202.747.0698

© Center for Progressive Reform, 2015