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Oct. 30, 2017 by William Buzbee

The Hill Op-Ed: Trump Administration's Clean Power Plan Repeal Proposal Is Illegal

This op-ed originally ran in The Hill.

The Trump administration's efforts to sidestep finalized regulations through stays or delays have so far met with judicial rejection in three straight decisions.

As these courts have concluded, such a deregulatory strategy violates settled law that administrative agencies are bound by their own finalized regulations until they undo them through a new full rulemaking process.

Environmental Protection Agency Administrator Scott Pruitt last week published a proposal to repeal the Obama administration's Clean Power Plan that similarly is headed for rocky shoals. 

The plan, although stayed pending resolution of legal challenges, is a fully finalized regulation, setting in place a federal-state process to reduce greenhouse gas emissions contributing to climate change from existing power plants.

Pruitt's proposed repeal has been criticized for its skewed cost-benefit analysis reversals and climate progress losses. But this repeal proposal suffers from two related illegalities, perhaps springing from Pruitt's political focus on pleasing favored constituencies regardless of what the law actually allows. An eventual legal loss might still be a political win.

Read the full op-ed in The Hill.

June 15, 2017 by William Buzbee
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This op-ed originally ran in The New York Times.

After decades of failed efforts to enact "regulatory reform" bills, Congress appears to be within a few votes of approving reform legislation that would strip Americans of important legal protections, induce regulatory sclerosis and subject agencies that enforce the nation's laws and regulations to potentially endless litigation.

This is not reform. These bills would sabotage agency regulation with legislative monkey wrenches. Key compromises about agency power and procedures, worked out under the 1946 Administrative Procedure Act, would be discarded by these overwhelmingly anti-regulatory bills. And because they would be statutory changes, not mere presidential edicts, these changes would likely long outlive the Trump administration.

It is easy to complain about regulation, of course, and much could surely be improved. But government rules are the foundation of the safety net that protects Americans. Are you ready to abandon …

Sept. 23, 2016 by William Buzbee
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Next Tuesday, the U.S. Court of Appeals for the D.C. Circuit will hear four hours of argument over the Clean Power Plan (CPP). Federalism-linked statutory, regulatory, and doctrinal law has been and will be crucial to the CPP's fate, and several issues of federalism will play a key role.

In designing the CPP, the U.S. Environmental Protection Agency built on states' actions in reducing greenhouse gas (GHG) emissions in recent years through use of GHG trading regimes, and nudging or requiring power plants to produce energy through cleaner or renewable sources. The CPP's core requirements – capped pollution targets for each state – are built on EPA's assessment of what "best systems of emission reduction" have been "adequately demonstrated," and derives the targets from that assessment.

States were able to make such progress during recent decades due both to their longstanding powers to …

June 3, 2015 by William Buzbee
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William W. Buzbee, Professor of Law, Georgetown University Law Center, offers his comments here regarding the May 27, 2015 released final rule and accompanying materials regarding what waters are federally protected “waters of the United States.”  Professor Buzbee is also a founding member-scholar of the Center for Progressive Reform.  He has testified repeatedly before congressional committees about these issues and in 2006 served as co-counsel for an unprecedented bipartisan amicus brief of former US EPA Administrators filed with the Supreme Court.  Wwb11@law.georgetown.edu.  Office phone (202) 661-6536.

The United States Environmental Protection Agency and the Army Corps of Engineers on May 27, 2015 released their much awaited and debated final rule articulating what are federally protected jurisdictional “waters of the United States.”  Before anyone outside the executive branch could have possibly read the 700 plus pages of legal analysis in the new “Waters Rule” (also …

June 3, 2014 by William Buzbee
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On June 2, 2014, the United States Environmental Protection Agency issued its much awaited and debated proposed Clean Air Act Section 111(d) regulations to reduce greenhouse gas (GHG) emissions from existing electric utility generating units, colloquially referred to as power plants.  And because the largest GHG emitters in this category are coal burning plants, such plants and linked businesses and coal-intensive jurisdictions all have nervously awaited these proposals.  In an earlier blog analysis, I assessed the statutory language and how it provides EPA with considerable latitude to allow for flexibility and trading of pollution.

Now we have the actual proposal, which in turn solicits comments as the next step in the notice and comment process.  Weighing in at 645 pages, this proposal will be scrutinized by  legions of lawyers, environmentalists, and political pundits in the coming months.  Nevertheless, a quick review of this important proposal reveals …

Oct. 15, 2013 by William Buzbee
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In late September, the EPA proposed regulation of new power plants’ greenhouse gas emissions (GHGs) under the Clean Air Act’s “New Source Performance Standards” (NSPS) provisions. Now an often little noticed follow-on provision—Section 111(d)--- is suddenly in the spotlight. Section 111(d) requires regulation of existing sources that are in categories of polluters subject to NSPS regulation. President Obama, EPA, industry, environmental groups, and states have all entered the fray about what Section 111(d) requires and allows. 

This issue presents several important choices and issues. First, regulation of existing US fossil fuel burning power plants—the source of over 30% of US carbon dioxide emissions-- is unavoidably central to US efforts to reduce GHG emissions. Second, in the face of the federal government’s long climate change inaction, many states and regions have already created programs and laws designed to reduce GHG pollution …

Oct. 1, 2013 by William Buzbee
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On September 17th, 2013, US EPA released a massive 331 page draft report distilling peer reviewed science regarding “connectivity” of various sorts of American water bodies with larger bodies of waters, such as rivers and lakes.   It also sent to the White House for review a draft proposed rule about how it and the Army Corps of Engineers would determine what sorts of waters would count as “waters of the United States” subject to federal jurisdiction under the Clean Water Act. Simultaneously, EPA (perhaps at the request of the White House) withdrew a draft 2011 “guidance” document regarding what “waters” could be protected; it had been in limbo for many months before the White House regulatory “czar,” the Office of Information and Regulatory Affairs (OIRA). So far, no one outside of the executive branch has seen the new proposed rule, and the science report is just …

Jan. 8, 2013 by William Buzbee
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The Supreme Court ruled today that the 9th Circuit committed a legal error in holding the Los Angeles County Flood Control District liable for violations of its Clean Water Act (CWA) “municipal separate storm sewer system” (or MS4) pollution discharge permit. The suit, Los Angeles County Flood Control District v. Natural Resources Defense Council, had been initiated by NRDC and allied environmental groups, and its victory below was reversed.   A loss for the environment? Actually, the careful and narrow Supreme Court ruling dodged a potential weakening of the CWA, and appears to have left open for consideration whether conceded permit violations by the Los Angeles County District meant it deserved to be held liable. The case potentially could have weakened the centrality of self-reported discharge permit violations and decades of rulings that such violations result in strict liability. The Court, however, dodged such a result, explicitly leaving …

Feb. 23, 2011 by William Buzbee
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The Supreme Court today issued its much-awaited ruling in Williamson v. Mazda. Could an injured or deceased plaintiff sue under common law for damages allegedly attributable to the lack of a rear inner seat seatbelt, when the Department of Transportation (DOT) had declined to require such belts while requiring other seat belts?   The case on its face appeared much like the Court’s earlier Geier v. American Honda Motor Co decision, issued in 2000, in which the Court held that a common law injury claim for the lack of an airbag was preempted due to DOT’s decision to allow manufacturers to choose among safety devices.   Many lower courts had read Geier expansively, thus preempting claims like those now presented in Williamson. But the reach of that ruling was always in question since the Geier case could also be read in a narrow way, limited to the …

April 1, 2010 by William Buzbee
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Federalism battles over state roles under federal climate legislation may have appeared settled, but they are once again under debate. The previous leading bills–the Waxman-Markey bill passed by the House, and the Boxer-Kerry bill passed out of a committee in the Senate–lost momentum several months ago. After several months of legislative inaction, Senators Kerry, Graham, and Lieberman have been working on a new piece of climate legislation. After the senators’ comments indicated that this bill might broadly undercut state and local government actions to address climate risks, fourteen senators and a group of leaders of state environmental agencies recently sent letters to Kerry, Graham, and Lieberman arguing for preservation of state authority to address climate ills. These letters show that some national and state leaders appreciate the importance of climate federalism choices and the value of state action. However, despite historical lessons, a decade of …

CPR HOMEPAGE
More on CPR's Work & Scholars.
Oct. 30, 2017

The Hill Op-Ed: Trump Administration's Clean Power Plan Repeal Proposal Is Illegal

June 15, 2017

New York Times Op-ed: Regulatory 'Reform' That Is Anything But

Sept. 23, 2016

Federalism Games in the Clean Power Plan Battle

June 3, 2015

The New Final 'Waters of the United States' Rule: Separating Rhetoric and Reality

June 3, 2014

EPA's Proposed Power Plant Regs: Solid Legal Footing, Considerable Flexibility

Oct. 15, 2013

Regulating Existing Power Plants Under Clean Air Act 111(d) (Part I): The CAA's Language & Structure

Oct. 1, 2013

The Ongoing Waters War: Understanding the Firestorm Over US EPA's Massive Draft Report and New Army Corps and EPA Proposed Rule on Connectivity of America's Waters