The Flight from Evidence-Based Regulation
Originally published on Legal Planet. Reprinted with permission.
The Trump administration's major deregulatory efforts share a common theme. They assiduously avoid having to rely on scientific or economic evidence. Confronting that evidence is time-consuming and difficult, particularly when it often comes out the other way. Instead, the administration has come up with clever strategies to shut out the evidence.
The effort to repeal the Clean Power Plan illustrates some of these strategies. The Obama administration's plan would have cut carbon emissions from power plants along with destructive particulate emissions from those plants. The Trump administration didn't have much of a policy argument against the plan. So instead, it argued that the Clean Air Act just didn't give EPA the power to take sensible measures against climate change. As the old trial lawyer's saying puts it, "If the evidence is against you, argue the law."
The Clean Power Plan repeal also illustrates another strategy: Come up with a rationale for ignoring evidence that you don't like. This strategy wasn't part of the formal justification for repealing the Clean Power Plan. Instead, it was used in the cost-benefit analysis accompanying the formal repeal, where EPA chose to rely on calculations that …
Whatever one's political views, the end goal regarding the coronavirus (COVID-19) is the same – to minimize the number of people dying and suffering from severe disease. As commentators have repeatedly noted, we need genuine expertise for that. Beyond involving scientists and physicians in decision-making, there are three steps in determining what that expertise should look like and how we tap into it most effectively.
First, the experts can inform decision-making, even if uncertainty will remain. While we can all agree on the end point – no one dying – how to get there is not clear, even to the experts. Rigorous expert judgment and a respect for science are therefore required. Expertise is developed not just from professional training, but from experience in using that training over and over, building up a store of experience that makes one a better expert.
Ultimately, however, the choices in uncertain situations are …
As the coronavirus (COVID-19) continues to spread around the globe, the inequalities in American society have come into even sharper relief. People with low incomes who are unable to work from home risk being exposed to the virus at work or losing their jobs altogether. Their children may no longer have access to free or reduced-price meals at school. They are also less likely to have health insurance, receive new drugs, or have access to primary or specialty care, putting them at a greater risk of succumbing to the illness. As with any shock to the system – natural disaster, conflict, and now a pandemic – vulnerable populations are hit hardest and have a harder time bouncing back.
In addition to socioeconomic risk factors, a less obvious but often inescapable hazard puts poor people in a literal and figurative chokehold: pollution. People with underlying health conditions, such as heart …
Earlier this week, a group of 25 Center for Progressive Reform (CPR) Board Members, Member Scholars, and staff signed a joint letter urging Russell Vought, Acting Director of the White House Office of Management and Budget (OMB), to direct federal agencies to hold open active public comment periods for pending rulemakings amid the COVID-19 pandemic. The letter further urges Vought to extend comment periods for at least 30 days beyond the end of the crisis.
Meaningful public participation is one of the bedrock principles upon which our regulatory system is based. Among other things, by enlisting the dispersed expertise of the public, it ensures higher-quality regulatory decision-making, and it imbues the process and its results with a crucial measure of credibility and legitimacy.
This goal of meaningful public participation is most notably enshrined in the Administrative Procedure Act’s requirement that agencies provide members of the public …
Originally published on Legal Planet. Reprinted with permission.
Now that President Trump has belatedly declared a national emergency, what powers does he have to respond to the coronavirus pandemic? There has been a lot of talk about this on the Internet, some of it off-base.
It's important to get the law straight. For instance, there's been talk about whether Trump should impose a national curfew, but I haven't been able to find any legal authority for doing that so far. The legal discussion of this issue is still at an early stage, but here are some of the major sources of power and how they might play out.
The Stafford Act (major disasters and national emergencies). Trump has specifically invoked the emergency provisions of the Stafford Act. The Stafford Act, which is mostly administered by FEMA, covers federal responses for two categories of events: major disasters and …
From the farm fields of California to the low-lying neighborhoods along the shores of the Chesapeake Bay, structural racism and legally sanctioned inequities are combining with the effects of the climate crisis to put people in danger. The danger is manifest in heat stroke suffered by migrant farmworkers and failing sewer systems that back up into homes in formerly redlined neighborhoods. Fortunately, public interest attorneys across the country are attuned to these problems and are finding ways to use the law to force employers and polluters to adapt to the realities of the climate crisis.
The second installment in CPR's climate justice webinar series showcased some of the important work these public interest advocates are doing and explored how their efforts are affected by enforcement policy and resource changes at regulatory agencies, from the federal level on down. Scroll down to watch a recording of the hour-long …
On March 3, the Supreme Court will hear a plea to invent a new rule of constitutional law with the potential to put an end to the republic the Constitution established, if not under President Trump, then under some despotic successor. This rule would end statutory protections for independent government officials resisting a president’s efforts to use his power to demolish political opposition and protect his party’s supporters. Elected strongmen around the world have put rules in place allowing them to fire government officials for political reasons and used them to destroy constitutional democracy and substitute authoritarianism. But these authoritarians never had the audacity to ask unelected judges to write such rules, securing their enactment instead through parliamentary acts or a referendum.
The blessings of liberty in this country and other functioning democracies depend in important ways on something that legal scholars call the “internal …
On Thursday, the House Oversight and Reform Committee's Environment Subcommittee will hold a hearing to examine the harm to children posed by the Trump administration's attack on one of the most wildly successful clean air protections in American history: the Obama-era Mercury and Air Toxic Standards (MATS). The rule, adopted in 2012 after literally decades in the making, has reduced coal-fired power plant emissions of brain-damaging mercury by more than 81 percent, acid gases by more than 88 percent, and sulfur dioxide by more than 44 percent. Altogether, its pollution reductions have saved thousands of lives.
The February 6 hearing is part of a series that will highlight the despicably cruel impacts the Trump administration's assault on our safeguards is having on the nation's children. The other hearings will look at the administration's actions on the poverty line calculation, fair housing accountability, and the Supplemental Nutrition Assistance …
When the Trump administration released its recent proposal to gut the National Environmental Policy Act (NEPA), it trumpeted the action as a long-overdue step to "modernize" the law's implementation by "simplifying" and "clarifying" its procedural and analytical requirements for federal agencies. If these words sound familiar, that's because they're the disingenuous claptrap that opponents of regulatory safeguards repeatedly trot out to camouflage their efforts to rig legislative and rulemaking processes in favor of corporate polluters. Put differently, those terms might as well be conservatives' code words to describe something that will cause more trips to the emergency room for urban children who suffer from asthma, more toxic contaminants in our drinking water, more irreversible degradation of fragile wetlands, and more runaway climate change.
To wit, it was not so not long ago when opponents of regulatory safeguards used these exact words – modernize, simplify, and clarify – …
This op-ed was originally published in The Hill.
The Trump administration has fired the latest salvo in its never-ending assault on environmental safeguards: a proposal from the White House Council on Environmental Quality (CEQ) to overhaul its regulations governing federal agency compliance with the National Environmental Policy Act (NEPA).
The proposal would narrow the scope of NEPA’s protections, weaken federal agency duties when the law applies, and attempt to shield violations of NEPA from judicial oversight. More significantly, the proposal is wildly inconsistent with NEPA’s most fundamental goal: fostering deliberation and democratic participation to improve the government’s capacity to promote social welfare.
NEPA relies on four key mechanisms.
First, it directs all federal agencies to accompany proposals for “major federal actions significantly affecting the quality of the human environment” with a detailed environmental impact statement (EIS) comparing the environmental impacts of the proposed action …
