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March 29, 2022 by James Goodwin

Safeguarding the Right to Vote Through a Strong Regulatory System

This op-ed was originally published by The Regulatory Review. Reprinted with permission.

The regulatory system, contrary to the claims of its conservative critics, is an indispensable part of the broader civic infrastructure on which our democracy is built. Significantly, the ability to exercise voting rights—the most visible and potent act of civic engagement—necessitates a stronger and more inclusive regulatory system.

Effective civic engagement is a skill that requires practice to develop and maintain, not unlike playing piano or speaking a foreign language. This reality is especially true of voting, which involves more than just turning out for elections. Discerning voters must understand the issues at stake, demand high-quality candidates, and monitor public officials' performance to hold them accountable.

Observers of the United States' constitutional system of governance have long praised the wide variety of social institutions that allow us to hone our civic engagement skills. Nearly 200 years ago, Alexis de Tocqueville marveled at the vast array of civic associations in the United States, famously calling them our "schools of democracy."

Today, the regulatory system stands as one of the most important of these Tocquevillian schools of democracy, although few might think of it in these terms …

March 22, 2022 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

In describing cost-benefit analysis to students, I've often told them that the "cost" side of the equation is pretty simple. And it does seem simple: just get some engineers to figure out how industry can comply and run some spreadsheets of the costs. But this seemingly simple calculation turns out to be riddled with uncertainties, particularly when you're talking about regulating the energy industry. Those uncertainties need more attention in designing regulations.

The U.S. Environmental Protection Agency (EPA) confronted some of these issues recently in its reevaluation of a regulation limiting mercury emissions from coal power plants. (You might wonder why EPA was taking this look backwards; the reason was basically that the U.S. Supreme Court told them to do so.) In 2011, EPA had estimated that the compliance cost would work out to …

March 14, 2022 by Sidney Shapiro
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This op-ed was originally published in The Regulatory Review. Reprinted with permission.

When it comes to historically marginalized groups, an “out of sight and out of mind” approach has too often infected agency policymaking. Agencies have responded with outreach to marginalized communities, but regulatory policymaking is hardly inclusive.

Last January, President Biden required the government to increase engagement “with community-based organizations and civil rights organizations,” and the Administrative Conference of the United States responded with a multiday forum on underserved communities and the regulatory process.

Addressing the lack of participation by marginalized communities in regulatory decision-making is crucial, but there is another fundamental issue. The input of marginalized communities will not matter if agencies ignore or devalue it because these insights are not expressed using the standard narratives of policymaking.

Bruce Williams and Albert R. Matheny identify three “languages” used in public policy debates: managerial, pluralist, and …

March 8, 2022 by David Driesen
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Arguments and judicial reasoning in administrative law cases usually focus on the case at hand. Indeed, the Administrative Procedure Act (APA) commands that narrow focus. The APA does not give the courts any role in shaping the laws governing administrative agencies, for that is what Congress does. Instead, it gives the courts a modest, albeit difficult responsibility: They may determine whether a particular agency action is arbitrary and capricious or contrary to law. Therefore, parties challenging an agency rule they disapprove of generally argue that the agency has violated some restraint stated in the statute or exercised its discretion in an arbitrary way.

But in the U.S. Supreme Court case heard last week about the scope of EPA's authority to regulate greenhouse gas emissions (West Virginia v. EPA), coal companies relied heavily on a "parade of horribles" argument — a listing of bad things that …

March 2, 2022 by Allison Stevens
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Imagine you're in the market for a new furnace. You decide to buy a more fuel-efficient system — even though the price tag is higher — because it will lower your monthly heating bills. Another selling point: The fuel-efficient furnace emits less carbon into the atmosphere — a benefit you can't quite quantify but that you value nonetheless for its small salubrious effect on the planet.

Policymakers go through a similar — though much more complex — process when implementing laws. But an obscure federal mandate known as cost-benefit analysis renders them unable to fully account for costs and benefits that are difficult to measure in dollars and cents, like the large-scale value to society of federal rules that protect public and environmental health.

Despite its name, a true analysis of a rule's full benefits is impossible.

I mean, really: How can public officials put a price on a stable climate or …

Feb. 24, 2022 by Joel Mintz
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In its first year in office, the Biden administration has, to its credit, reversed a number of anti-environmental policies initiated by former President Donald Trump.

Gone is the previous administration's infamous "two-for-one" policy, under which federal agencies had to eliminate two regulatory requirements for every new regulation they proposed. Numerous Trump-era initiatives that cut back needed air and water quality protections have also been rescinded. And, thankfully, the U.S. Environmental Protection Agency (EPA) and other federal agencies are once again focused on responding to the mounting dangers posed by the climate crisis.

Given these steps forward, it is perplexing that the current administration has not yet restored a critical environmental tool that has proven workable and highly beneficial in past years: EPA's Supplemental Environmental Projects (SEPs).

Top photo by the Natural …

Feb. 10, 2022 by James Goodwin
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When the conservative movement contrived to pack the U.S. Supreme Court with right-wing ideologues, one of the goals was to create a powerful ally in its campaign to dismantle the federal regulatory system, which we all depend on every day to safeguard our families, communities, and environment. With its recent decision in the emergency vaccine-or-test case, the Court’s conservative supermajority gave its clearest signal yet that it will advance this campaign from the bench.

The unsigned majority opinion and the concurrence authored by Justice Neil Gorsuch, when read together, lay out a comprehensive blueprint for defeating regulation in the public interest. Significantly, the arguments they raise are firmly grounded in the long-standing conservative myth that the regulatory system lacks sufficient “democratic accountability.” Quoting the late Justice Antonin Scalia, the concurrence casts the stakes in stark terms, warning …

Feb. 3, 2022 by Daniel Farber
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This op-ed was originally published by The Regulatory Review. Reprinted with permission.

In recent decades, the U.S. Supreme Court has become increasingly interventionist on issues relating to the appointment and removal of officials. Nondelegation arguments have also escalated and even non-constitutional doctrines such as Chevron are debated in constitutional terms. But according to originalist scholars, who say that the Constitution should be understood based on its meaning at the time of drafting, these are necessary developments.

Although I am not an originalist, I had assumed that the originalist case must be a powerful one to justify such a forceful effort to overturn existing precedent. That turns out to have been a mistake on my part. Writing a book on presidential power led me to take a much closer look at the historical record and the recent scholarship on these questions. The work of scholars such as …

Jan. 31, 2022 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

The Office of Information and Regulatory Affairs (OIRA) oversees government regulation across the federal government. Some portray it as a guardian of rationality, others as biased in favor of industry. Public information about OIRA is so limited that it's impossible to know one way or the other, due to the veil of secrecy that surrounds the place.

Here's a list of a dozen things we don't know, but should, about this secretive office:

  1. How is the place organized? The EPA Office of Policy has an organization chart. Not so OIRA.

  2. Who are the staff, what are their qualifications, and how much experience do they have? There's word of mouth about this, but no hard data. How much expertise the staff has in epidemiology, econometrics, modeling, or other specialties is unknown. Where do OIRA folks go when …

Jan. 31, 2022 by David Driesen
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This op-ed was originally published in The Regulatory Review. Reprinted with permission.

The idea that unelected judges rather than an elected U.S. President should resolve "major questions" that arise in the course of executing law makes no sense. And the idea that major questions should be resolved to defeat policies that the two Houses of the U.S. Congress and the President have agreed to makes even less sense. Yet, the so-called "major questions doctrine" endorsed by the U.S. Supreme Court's current majority suggests that the rule of law only governs minor cases, not matters of "vast economic and political significance."

In important cases, the Court has abandoned the role that the Administrative Procedure Act assigns it—checking the executive branch when it contravenes the policies that Congress and the President have approved. Instead, it has assumed the role of constraining the faithful execution …

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