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June 30, 2022 by Robert Fischman

Supreme Court Swings at Phantoms in West Virginia v. EPA

In West Virginia v. EPA, the U.S. Supreme Court slayed a phantom, a regulation that does not exist. Why? The justices in the majority could not contain their zeal to hollow out the EPA’s ability to lessen suffering from climate change in ways that impinge the profits of entrenched fossil fuel interests.

In doing so, the activist justices reached out to interpret the Clean Air Act despite the Court’s traditional restraint in deciding only cases where plaintiffs suffering individualized harm present a focused, redressable dispute. The Court has been particularly strict in foreclosing judicial review when environmental plaintiffs complain about prospective rules and actions. But today’s decision eagerly engaged with the speculative harms presented by West Virginia and coal companies. They were not harmed by a regulation that never took effect and that never will be implemented.

In its “what if” analysis, the Court claimed for itself the power that presidents historically exercised through selecting agency officials to implement the administration’s agenda. This decision narrows the interpretive authority of those appointed officials, such as the EPA Administrator. It substitutes the judiciary for the executive branch in fleshing out broad congressional commands, such as “prescribe regulations …

June 29, 2022 by Shelley Welton, James Goodwin
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This op-ed was originally published by The Revelator. Reprinted under Creative Commons license CC BY-NC-ND 3.0.

These days, the Federal Energy Regulatory Commission can no longer be described as a technocratic, under-the-radar agency that sets policies on energy infrastructure and market rules, rates, and standards.

As energy policy has become front-page news — driven by climate change and recent price volatility — FERC has begun updating its regulations to meet new exigencies. The agency has taken big steps this spring to support affordability and a transition to cleaner energy, including proposing updates to the way it permits natural gas pipelines and beginning to overhaul how regions plan and pay for the expansion of electricity transmission infrastructure.

These moves have provoked controversy because their stakes are high: Billions of dollars of infrastructure expenditures are on the table. What gets built, who pays, who hosts this infrastructure, and who makes …

June 27, 2022 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission. To learn more about the Federal Energy Regulatory Commission, its role in climate and energy justice, and how it can advance energy and regulatory democracy, see our April 2022 report.

The Federal Energy Regulatory Commission (FERC) has been called the most important environmental agency that no one has heard of. Recently, the D.C. Circuit decided two undramatic FERC cases that illustrate the agency's environmental significance. One involved a bailout to coal and nuclear plants, the other involved water quality.

The first case, Turlock Irrigation District v. FERC, involved FERC's role in approving licensing and relicensing of hydroelectric dams. It also raised an important issue about the role of state governments in approving federal projects and licenses.

Under the Clean Water Act, dam owners need to get certifications from state authorities that the dam will not …

June 23, 2022 by James Goodwin
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Any high school student can tell you that water follows the path of least resistance. A similar rule might be said to apply to corporate polluters and small government ideologues who now see the federal judiciary — especially a U.S. Supreme Court stocked with Trump-era judicial activists — as the path of least resistance in pursuing their agenda of the "deconstruction of the administrative state." The first case they have teed up for the October session of oral arguments is Sackett v. EPA, which the Court could use to gut the Clean Water Act.

Center for Progressive Reform Member Scholar William Buzbee is helping lead the defense of this bedrock environmental law. Working with the Georgetown Law Center's Environmental Law and Justice Clinic, Buzbee authored an amicus brief for members of Congress who support a strong Clean Water Act. In all, 167 members of Congress signed on …

June 17, 2022 by Thomas McGarity
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The U.S. Supreme Court's upcoming ruling on the U.S. Environmental Protection Agency's power to regulate greenhouse gases from coal-fired power plants offers an unwelcome opportunity for its conservative majority to advance the former Trump administration's goal of "deconstructing the administrative state."

The vehicle for advancing the Trump agenda is the obscure "major questions" doctrine, under which the Court insists that congressional delegations of power to regulatory agencies must be made with pinpoint precision on questions of "vast economic and political significance."

The Court invented the major questions doctrine about 20 years ago in a case involving the U.S. Food and Drug Administration's authority to regulate cigarettes, but it had used it only very rarely to overturn agency actions until Democratic presidents began to write regulations that aggressively protected public health, worker safety, and the environment.

The doctrine is at the heart of …

June 9, 2022 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

Should regulators take into account harm to people in other countries? What about harm to future generations? Should we give special attention when the disadvantaged are harmed? These questions are central to climate policy and some other important environmental issues. I’ll use cost-benefit analysis as a framework for discussing these issues. You probably don’t need my help in thinking about the ethical issues, so instead I’ll focus on legal and economic considerations.

Other countries. When the Trump administration estimated the harmfulness of climate change, its answer was about a tenth of the Obama administration’s estimate. The main difference is that Trump counted only impacts within the borders of the United States. There’s been considerable discussion of this issue among academics. Generally, cost-benefit analysis of government regulations has focused on harm within …

May 25, 2022 by Daniel Farber
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This post was originally published by Legal Planet. Reprinted with permission.

In West Virginia v. EPA, the U.S. Supreme Court is reviewing former President Obama’s Clean Power Plan. The Clean Power Plan (CPP) itself no longer has any practical relevance, but there’s every reason to predict the Court will strike it down. The big question is what the Biden administration should do next. That depends on the breadth of the Court’s opinion.

The Clean Power Plan was the centerpiece of the Obama administration’s climate policy. It had three pillars: (1) reductions in emissions from coal-fired power plants; (2) shifts by the owners of coal plants to gas and renewables, and of gas-fired plants to renewables; (3) shifts by states toward the same kinds of shifts for their overall power mixes.

The Clean Power Plan has no practical significance today: the deadlines in …

May 24, 2022 by Bill Funk
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The Fifth Circuit Court of Appeals ruling in Jarkesy v. Securities and Exchange Comm'n is a potential blockbuster. In 2020, the Securities and Exchange Commission (SEC) held that George Jarkesy had engaged in misrepresentation in certain public statements, thereby committing securities fraud. The SEC ordered Jarkesy to cease and desist and to pay a civil penalty. In addition, the agency barred him from certain securities industry activities.

Jarkesy petitioned for review of the SEC's decision. In that petition, he did not challenge the agency's substantive decisions. Instead, he argued that the decision was unconstitutional for three reasons: Jarkesy had a right to a trial by jury, rather than an administrative decision; the decision flowed from an improper delegation of legislative authority to the SEC; and because the administrative law judge (ALJ) who rendered the initial decision was unconstitutionally protected from removal except for cause.

The Fifth Circuit …

May 23, 2022 by Alex Kupyna
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While the Center for Progressive Reform staff advocate for stronger protections from toxic chemical spills, none of our experts assumed that one of our own would gain firsthand experience on the matter.

That all changed last January, when Board Member and Scholar Sid Shapiro received a surprise midnight phone call warning him that a nearby fertilizer plant in Winston-Salem, N.C., had just caught fire. Inside the plant and stored in a tank outside were 500 tons of highly explosive ammonium nitrate, threatening to incinerate nearby communities.

In the In Our Backyard Podcast, hosted by the Blue Ridge Environmental Defense League, Shapiro, David Flores, a former senior policy analyst at the Center, and Senior Policy Analyst Darya Minovi shared their perspectives on the Winston-Salem incident and what it means for communities at risk of chemical spills, which are disproportionately low-wealth communities of color. They explored the health …

May 4, 2022 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

Soon after Trump took office, Republicans used the Congressional Review Act (CRA) to overturn sixteen Obama-era regulations. If they win control of the government in 2024, they'll undoubtedly do the same thing to Biden regulations. It behooves us, then, to understand the effect of these legislative interventions. A Ninth Circuit ruling last week in a case involving bear baiting, Safari Club v. Haaland sheds new light on this murky subject.

The CRA provides a fast-track process for Congress to repeal administrative regulations. Such a repeal also impacts the agency's power to issue new regulations. In the absence of further legislation, an agency may not reissue the rule in "substantially the same form" or issue a "new rule that is substantially the same" as the overturned rule. As a thorough report by the Congressional Research Service explains …

CPR HOMEPAGE
More on CPR's Work & Scholars.
June 30, 2022

Supreme Court Swings at Phantoms in West Virginia v. EPA

June 29, 2022

The Revelator Op-Ed: Regulators Have a Big Chance to Advance Energy Equity

June 27, 2022

Two FERC Cases and Why They Matter

June 23, 2022

Member Scholar Buzbee Leads Congressional Amicus in Crucial Supreme Court Clean Water Act Case

June 17, 2022

The Supreme Court's Demolition Agenda

June 9, 2022

Whose Interests Count? And How Much?

May 25, 2022

After the Court Rules: Gaming out Responses to a Cutback in EPA Authority