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Feb. 27, 2020 by David Driesen

Will the Supreme Court Create a Pathway to Autocracy in Consumer Protection Agency Case?

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 separation of powers.” Prosecutors in robust democracies, for example, enjoy some separation from the head of state, as they are expected to apply the law neutrally. In early America, prosecution was lodged outside of presidential control, among private citizens, state officials, and distant United States Attorneys. Electoral commissions and media regulators, here and …

Feb. 4, 2020 by James Goodwin
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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 …

Jan. 23, 2020 by James Goodwin
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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 – …

Jan. 23, 2020 by Dave Owen
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Originally published on Environmental Law Prof Blog. Reprinted with permission.

This morning, the U.S. Army Corps of Engineers and EPA released a final rule determining which aquatic features are covered by the Clean Water Act. Already, the press coverage is following a familiar pattern: farming lobbyists praise the rule as a major victory, and environmentalists condemn it as an abdication of clean water protection and water quality science. The former part of that pattern has always been interesting to me. It's true that the farm lobby has been a prominent and effective participant in debates about this rule and its predecessors. But I think much of its participation, and the resulting press coverage, has been misleading. This new rule does offer benefits to farmers (at a likely cost to water quality), but the benefits aren't likely to be nearly as great as the rhetoric would lead …

Jan. 22, 2020 by Katie Tracy, Robert Verchick
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​It's no secret that President Trump has harassed staff at federal agencies since his first moment in office. Days after his inauguration, he blocked scientists at the Environmental Protection Agency (EPA) and the U.S. Department of Agriculture (USDA) from talking to the press and the public. He famously cracked down on federal labor unions and chiseled early retirees of their expected pension benefits. Now he's requiring hundreds of staff from USDA's Economic Research Service and the Bureau of Land Management to leave their homes in the Washington area and move to offices out West or risk losing their jobs.

The administration has been particularly disdainful of the professional staff at the EPA – the people who work every day to make sure you can take a dip in the lake, fill your lungs on a morning walk, or drink from the tap without some nagging fear of …

Jan. 21, 2020 by Robert Glicksman, Alejandro Camacho
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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 …

Jan. 13, 2020 by Daniel Farber
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Originally published on Legal Planet. Reprinted with permission.

Last week's NEPA proposal bars agencies from considering many of the harms their actions will produce, such as climate change. These restrictions profoundly misunderstand the nature of environmental problems and are based on the flimsiest of legal foundations.

Specifically, the proposal tells agencies they do not need to consider environmental "effects if they are remote in time, geographically remote, or the product of a lengthy causal chain." The proposal also excludes "cumulative effects." [85 FR 1708] Not coincidentally, all of these restrictions target climate change, which involves very long-term, global, complex, and cumulative effects.

These restrictions fly in the face of everything we know about harm to the environment. We know that harm is often long-term rather than immediately obvious – think of chemicals that cause cancer decades after exposure. We also know that environmental effects aren't limited …

Jan. 10, 2020 by Daniel Farber
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Originally published on Legal Planet. Reprinted with permission.

The White House just released its proposed revisions to the rules about environmental impact statements. The White House Council on Environmental Quality (CEQ) simply does not have the kind of power that it is trying to arrogate to itself. Its proposal is marked by hubris about the government's ability to control how the courts apply the law.

That hubris is evident in the proposal's effort to tell courts when lawsuits can be brought and what kind of remedies they can provide. For instance, it states that issuance or refusal to issue an impact statement does not trigger the right to go to court, that no claim can ever be raised in court unless it was first raised by the agency, and that lawsuits must be always be brought quickly. Some of these might be right, some might not be …

Nov. 22, 2019 by James Goodwin
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This post was originally published on the Union of Concerned Scientists' blog. Reprinted with permission.

The Environmental Protection Agency (EPA) appears poised to take the next step in advancing its dangerous "censored science" rulemaking with the pending release of a supplemental proposal. The EPA presumably intends for this action to respond to criticism of the many glaring errors and shortcomings in its original proposal, hastily released in 2018. Unfortunately, if the leaked version of the supplemental proposal is any indication, the agency is no closer to curing one of the 2018 proposal's biggest defects: identifying a plausible legal authority to issue the rule in the first place. As such, if and when it's finalized, the rule is doomed to easy rejection on the judicial review that is certain to follow.

The censored science rule—perhaps more than any other action of the Trump-era EPA—has come to …

Nov. 21, 2019 by Sean B. Hecht
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Originally published on Legal Planet. Reprinted with permission.

Over a year ago, EPA issued a proposed rule, ostensibly to promote transparency in the use of science to inform regulation. The proposal, which mirrors failed legislation introduced multiple times in the House, has the potential to dramatically restrict EPA's ability to rely on key scientific studies that underpin public health regulations.

The rule, on its face, would require EPA to take actions inconsistent with statutory mandates, including requirements to use the best available science in its regulatory processes. Robinson Meyer of The Atlantic provided an informative discussion of the proposed rule last year. The latest draft proposed update to the proposal, discussed at a House Science Committee hearing this week, further confirms that the Trump administration isn't really interested in reining in agencies' power relative to Congress, or in other professed conservative values. In this bizarre apparent move …

CPR HOMEPAGE
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