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Aug. 27, 2020 by Robert Glicksman, Alejandro Camacho

The Trump Administration's Latest Unconstitutional Power Grab

This commentary was originally published on The Regulatory Review. Reprinted with permission.

Throughout his time in office, President Donald J. Trump has boasted about cutting regulations.

His antagonism to environmental regulation has been particularly virulent and incessant. By one count, Trump Administration agencies have initiated or completed 100 environmental rollbacks. By thwarting often bipartisan legislative environmental protection goals adopted over the course of 50 years, President Trump's actions create serious threats to public health and environmental integrity. The Administration's suppression of public participation in regulatory decision-making has also undercut the ability of people and communities harmed by the Administration's deregulatory frenzy to protect themselves.

These anti-environmental and anti-democratic practices converged in the Administration's recent revisions to the Council on Environmental Quality's (CEQ) regulations implementing the National Environmental Policy Act (NEPA). Often referred to as the Magna Carta of U.S. environmental law, NEPA has two main goals.

First, it seeks to force federal agencies to consider the potential adverse effects of their proposed actions before they commit to taking them.

Second, it requires agencies to disclose the results of these deliberations so the public can assess the merits of agency action and let agencies, the President, and the U.S …

Aug. 26, 2020 by Matt Shudtz
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Since the very beginning of the pandemic, public health officials have warned of a second wave of COVID infections. With no epidemiological background, I’d say the impact of the virus looks more like a wildfire rolling across a forest seeking fresh fuel. But I fear that I am on the front side of a different sort of second wave.

When the pandemic forced shutdowns across the country in March and April, millions of Americans lost their jobs. Some of us, myself included, were fortunate to work for organizations that have been able to weather the storm in a “virtual office.” But with September approaching, and schools forced to navigate uncharted waters, there are hard choices to be made.

My wife and I had to make one such choice not long ago, and as a result, I'm leaving the best job I've ever had.

I have two …

Aug. 25, 2020 by James Goodwin
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This week, CPR is launching its Beyond 12866 initiative, an online platform focused on promoting a progressive vision for rebuilding the U.S. regulatory system. Such a regulatory system will be essential not only to achieving the progressive vision of a more just and equitable society; it will also do the heavy practical lifting needed for implementing key elements of a progressive policy agenda, such as the Green New Deal, Medicare for All, and Black Lives Matter movement.

This initiative begins from the recognition that in the near term, such progressive regulatory reform will need to be accomplished administratively, as opposed to legislatively, given the divisive politics of the issue and ongoing congressional dysfunction more generally. Using such administrative tools as executive orders and memoranda, the president in particular has considerable influence over how the regulatory system operates, and appropriately so given his (gendered language intended, unfortunately …

Aug. 24, 2020 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

The response to the COVID-19 pandemic has driven home some lessons about governance. Those lessons have broader application — for instance, to climate governance. We can't afford for the federal government to flunk Crisis Management 101 again.

Here are five key lessons:

  1. Effective leadership from the top is indispensable. Major problems require action by multiple federal agencies. These agencies need help coordinating; they may also need to be pushed into changing priorities and revamping procedures to deal with a major new issue. This is going to be very much true of climate policy. The trick is to provide leadership without hampering front-line agencies.

  2. Agency expertise is also indispensable. We've seen how decision-making in the White House has too often ignored the expertise of public health experts. The result is bad policy. Trump is extreme in this …

Aug. 20, 2020 by James Goodwin
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The Congressional Review Act (CRA) is a bad law and should be repealed. Yet, it has taken on outsized importance given that it provides one of the few vehicles for moving substantive legislation through a hyper-polarized Congress. The upcoming elections are thrusting it back in the spotlight, so let’s talk about the CRA and how opponents of the Trump administration’s assault on public safeguards might put it to its highest and best use.

First things first, though: The CRA only becomes viable if the Democrats sweep the presidential election and secure majorities in both chambers of Congress. Some polling suggests that the stars appear to be aligning in this fashion, just as they did at the beginning of the Trump administration when the full aggressive force of the CRA was first deployed. If this happens, that means any rules issued “late enough” in the Trump …

Aug. 13, 2020 by William Buzbee
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This afternoon, Science magazine is publishing an article [abstract available, article itself behind paywall] I co-authored with a number of distinguished environmental science professors from around the country. The article dissects the rule and shows the remarkable disregard for science that the Trump administration displayed in its recent dismantling of the 2015 Clean Water Rule, which protected millions of miles of rivers and acres of wetlands from polluters.

The article makes clear that the Trump administration’s Navigable Waters Protection Rule (NWPR), which just went into effect in June, has gutted protections for whole categories of waters despite the Clean Water Act’s express mandate that regulators protect the “chemical, physical, and biological integrity” of the nation's waters.

The scientist co-authors show how the new deregulatory action ignores or downplays what the best science establishes about the connectivity and functions of waters previously protected. The Obama-era rule …

Aug. 13, 2020 by Amanda Cohen Leiter
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This post was originally published by American Rivers. Reprinted with permission.

I have a confession: I didn’t used to “get” environmental justice. I admit that not as an inadequate apology to those of you who have lived with environmental injustice or dedicated your lives to fighting it, but instead as an invitation to others to join my journey toward greater understanding.

I have cared about the environment for as long as I can remember. As a kid, I explored Shenandoah National Park with my parents and brother. Since high school, my favorite pastimes have involved outdoor adventures. I still enjoy scaring my mom by picking up snakes (sorry mom!); I revel in the feeling of stretching out in a sleeping bag after a long day on a trail; I love teaching my kids to climb rocks and roll kayaks. I can’t remember a time when …

Aug. 12, 2020 by Sidney Shapiro
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This post was originally published by the Yale Journal on Regulation's Notice & Comment blog. Reprinted with permission.

In 1958, civil rights leaders, including Dr. Martin Luther King, Jr. and Andrew Young, met in New York with Reverend Everett Parker, who was the Director of the Office of Communications of the United Church of Christ. The Office was an advocacy arm of the church, whose members’ commitment to civil rights dated back to colonial times. The civil rights leaders sought the Office’s assistance because of their concern about the biased coverage of the civil rights movement by Southern television stations. After years of litigation, the meeting led to two decisions in the D.C. Circuit (United Church of Christ I & United Church of Christ II) that blocked efforts by the Federal Communications Commission (FCC) to relicense WLBT, a Jacksonville, Mississippi television station, which had …

Aug. 11, 2020 by Samuel Boden, Kim Sudderth
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On October 20, 1994, rising floodwaters from the San Jacinto River in Houston, Texas, caused a pipeline to break open, allowing gasoline to gush out and the river to catch fire. Such flooding is increasingly likely as the effects of climate change take hold, and yet, in the quarter century since that disaster, the federal government has implemented no new regulations to ensure that oil and gas operators are adequately preparing for the risks from more frequent and intense floods caused by the climate crisis.

In April 2019, the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration issued an unenforceable notice reminding pipeline operators that severe flooding still threatens the integrity of their infrastructure. Similarly, prompted by chemical disasters during recent hurricanes, the U.S. Chemical Safety and Hazard Investigation Board (CSB) alerted industrial facilities of the potential chemical disasters that could be …

Aug. 5, 2020 by Darya Minovi, Katlyn Schmitt
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In July, the Maryland Department of Environment (MDE) released the findings of a new ambient air quality monitoring project focused on the state’s Lower Eastern Shore. This effort was announced more than a year ago as a partnership between the Delmarva Poultry Industry (DPI), a trade group for just what it sounds like, and MDE to monitor ammonia and particulate matter emissions from industrial poultry operations.

The number of registered poultry CAFOs, or concentrated animal feeding operations, in Maryland has increased from seven in 2009 to 544 today, and the vast majority are located on the state’s Lower Eastern Shore. For years, residents have complained of foul odors emanating from nearby CAFOs, in addition to nausea, eye and throat irritation, and respiratory ailments. These symptoms are consistent with exposure to high levels of ammonia — a compound emitted when chicken litter breaks down, making it a …

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