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July 19, 2018 by Daniel Farber

Kavanaugh's Threat to Government Transparency and Accountability

This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court.

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 …

July 17, 2018 by Alexandra Klass
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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 of the world's most toxic industries to the edge of the Boundary Waters. Despite the devastating impact expected on the local economy and environment, President Donald Trump's Interior Department is bending over backwards to support the push to pollute.

If allowed, Twin Metals is expected to locate its processing plant on the banks of Birch Lake, a popular fishing and recreation lake that flows into the …

July 12, 2018 by Daniel Farber
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At the end of June, in a vote divided along partisan lines, the Federal Energy Regulatory Commission (FERC) handed down a sweeping order that will impact electricity markets in a wide swath of the country – likely at the expense of renewable energy and nuclear power. Unfortunately, like Trump's power plant bailout, the result may be to delay the closing of coal-fired power plants. That's a serious problem. A new study by researchers at Resources for the Future shows that a two-year delay in plant closings would cause 353-815 deaths and release 22 million extra tons of carbon. A two-year delay would cause one death for every four or five coal mining jobs it saved for those two years.

The FERC order applies to PJM, which operates a vast part of the national grid encompassing much of the mid-Atlantic, upper South, and Midwest. My first thought was that …

July 10, 2018 by Matt Shudtz
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This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court.

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 by the Senate. 

Trump and the current congressional majority are busy with their attempts at "deconstructing the administrative state." Kavanaugh might tip the balance in that direction on the Supreme Court, as well, particularly given his record of animosity against sensible safeguards during his time on the …

July 9, 2018 by David Driesen
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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 play its constitutional role of protecting the rule of law from Trump’s relentless assault on our safeguards and our democracy.

The Constitution requires Senate confirmation, not to rubber stamp presidential appointments, but to ensure nominees are dedicated to carrying out the law. Alexander Hamilton explained in The Federalist Papers that the Constitution authorizes the Senate to disapprove of presidential nominees to discourage the president from nominating …

July 5, 2018 by James Goodwin
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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 organization of accountants to help promote regulatory compliance assistance for small businesses. 

The SBA is a government agency that helps support the formation and growth of small businesses in the United States, relying on various programs such as subsidized loans and government contracting preferences. The Office of Advocacy is a semi-autonomous bureau located within SBA that is charged with advocating for the interests of small businesses in …

July 2, 2018 by Daniel Farber
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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 could help check an out-of-control presidency. In the long run, however, it could also hinder progressive regulatory efforts.

As my wife reminds me from time to time, not everyone in the world spends their time on administrative law. So, before I get to that, I'll start with a quick review of the Chevron doctrine, partly drawn from earlier posts. If you don't need that, just skip …

CPR HOMEPAGE
More on CPR's Work & Scholars.
July 31, 2018

Pruitt's Super-Polluting Parting Shot

July 31, 2018

South Florida Sun Sentinel Op-Ed: Kavanaugh May Limit Environmental Protections If Confirmed to Supreme Court

July 30, 2018

American Prospect Commentary: Judge Kavanaugh's Deregulatory Agenda

July 27, 2018

EPA Releases Assessment of Chesapeake Bay Restoration Progress

July 26, 2018

Judge Brett Kavanaugh: Environmental Policymaker

July 25, 2018

Imagining a Justice Kavanaugh: For One Endangered Frog, Might Justice Scalia Have Been a Kinder, Gentler Jurist?

July 25, 2018

What Does Kavanaugh's Supreme Court Nomination Mean for Chesapeake Bay Restoration Effort?