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March 13, 2019 by Daniel Farber

Why Is Trump Getting the Cold Shoulder from the Car Companies?

Originally published on Legal Planet.

Usually, you'd expect a regulated industry to applaud an effort to lighten its regulatory burdens. So you would think that the car industry would support Trump's effort to roll back fuel efficiency standards for new vehicles and take away California's authority to set its own vehicle standards. But that effort is being met by silence in some cases and vocal opposition in others. According to E&E News, "senior officials from EPA and the National Highway Traffic Safety Administration . . . told automakers to support the rollback or risk angering President Trump by siding with California's more stringent tailpipe emissions rules. But since the call, not one automaker has issued a statement of support." Some, like Ford, remain openly opposed to the rollback, which attempts to freeze federal fuel efficiency standards and oust California from setting its own standards.

One reason for the industry's lack of enthusiasm is probably doubt that the rollback will actually succeed. In fact, the odds are good that the rule will not survive litigation. California has some good arguments that the waiver it received during the Obama administration, which empowered the state to set its own standards, is irrevocable. In addition, the …

March 12, 2019 by Laurie Ristino
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The Democratic majority in the U.S. House of Representatives has a weighty agenda – from policy reform to oversight of the Trump administration. Given all that the House Democrats have on their plate, urging them to restore policy rationality by making the support of science-based policy central to their strategy might seem like a prosaic ask, but it's critically important.  

Without science as the lodestar for government policymaking, anything goes, which is exactly the problem. As the Union of Concerned Scientists documented in a recent report, the Trump administration has been marginalizing science and isolating federal scientists for the past two years. Trump appointees have systematically undercut the science-based policies and regulations forged to protect human health and the environment. This has opened the door to irrational policymaking aimed at benefiting the industries and special interests to which these appointees are linked.

The bipartisan design of our …

March 11, 2019 by Joel Mintz
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This post is adapted from a recent law review article published in the University of Missouri—Kansas City Law Review.

In myriad ways – from speeches, favoritism toward polluting industries, and ill-advised regulatory rollbacks – the Trump administration has consistently exhibited unrestrained antagonism toward regulatory safeguards for health, safety, and the environment. One of the earliest manifestations of that antagonism – and arguably one of the most pernicious – was an executive order signed by the president only ten days after his term began.

Executive Order 13771, hereafter referred to as the "one-in, two-out" order, contained three directives to all federal departments and agencies. First, it provided that "unless prohibited by law, whenever an executive department or agency…publicly proposes for notice and comment or otherwise promulgates a new regulation, it shall identify at least two existing regulations to be repealed." Second, for fiscal year 2017, the president's order directed …

Feb. 28, 2019 by James Goodwin
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The return of divided government promises to bring with it a welcome, albeit temporary, reprieve from the unprecedented abuse of the Congressional Review Act (CRA) that we witnessed during the 115th Congress. As I argue in an article featured in the March/April edition of The Environmental Forum, published by the Environmental Law Institute, the CRA has become far too dangerous a law – and the happenstance of divided government should not be the only thing protecting the public interest from future abuses. Rather, recent experience has provided us with all the evidence we need to repeal the CRA – for the good of public health, safety, and the environment, as well as the integrity of our democratic institutions.

During the 115th Congress, anti-safeguard lawmakers demonstrated the full destructive potential of CRA, with Republicans working with President Donald Trump to deploy the law to repeal 16 different regulatory safeguards …

Feb. 19, 2019 by Joel Mintz
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This op-ed was originally published in The Hill.

The Environmental Protection Agency (EPA) released an annual report Feb. 8 on its enforcement activities in fiscal 2018. After wading through a bushel full of cherry-picked case studies and a basket of bureaucratic happy talk, the report paints a dismal picture of decline in a crucially important EPA program.

EPA's data indicate that it initiated and concluded approximately 1,800 civil judicial enforcement cases in 2018 — fewer than half the number it handled in fiscal 2008, the last year of the George W. Bush administration. The agency required violators to invest $3.95 billion to control their excessive pollution last year, a far cry from the $21.3 billion in pollution control expenditures that resulted from EPA enforcement in 2011. Similarly, the total amount of administrative and civil penalties that EPA extracted from environmental violators was at its lowest …

Feb. 4, 2019 by James Goodwin
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Tomorrow morning, Neomi Rao, the current administrator of the White House Office of Information and Regulatory Affairs (OIRA), is set to appear before the Senate Judiciary Committee for a hearing on her nomination to the U.S. Court of Appeals for the D.C. Circuit. If confirmed, she would fill the open seat once occupied by Supreme Court Justice Brett Kavanaugh.

Administrator Rao's nomination has prompted intense media and public scrutiny of her background, and appropriately so, given the high stakes involved. Her long history of controversial writings, combined with a troubling record as President Donald Trump's "regulatory czar" (or de-regulatory czar, in this case) will give the committee's members much to ponder when deciding whether to promote her to what is widely regarded as the second-most powerful court in the United States.

Rao, as it turns out, has long been a lightning rod of controversy, and …

Jan. 31, 2019 by Daniel Farber
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Originally published on Legal Planet.

Conservatives, with full support from Donald Trump, have come up with a menu of ways to weaken the regulatory state. In honor of National Backward Day – that's an actual thing, in case you're wondering, and it's today – let's think about reversing those ideas. In other words, let's try to come up with similar mechanisms to strengthen protections for public health and the environment instead of weakening protections. It's an interesting experiment, if nothing else.

Here's what the Backward Day effort might look like:

The 2-for-1 Executive Order. One of Trump's first actions was to issue an executive order calling for repealing two regulations for every new regulation. Let's reverse that: if the government is going to repeal a regulation that protects public health or the environment, it needs to adopt two new protective regulations to take its place. After all, protecting the …

Jan. 24, 2019 by Daniel Farber
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Originally published on Legal Planet.

The Trump administration has many energy and environmental initiatives, none of them good. But in terms of shoddy analysis and tenuous evidence, the worst is the administration's attempt to freeze fuel efficiency standards. For sheer lack of professionalism, the administration's cost-benefit analysis is hard to match. And you can't even say that the administration is captive to industry, because this isn't something industry asked for. It's a case of untethered ideology trumping evidence and economics.

By way of background, §202 of the Clean Air Act requires EPA to impose standards for emissions from new motor vehicles once it has found that a pollutant endangers human health or welfare. During the Obama administration, EPA issued such standards for greenhouse gases, in tandem with the National Highway Traffic Safety Administration (NHTSA, pronounced 'nitsa'), which regulates fuel efficiency standards for vehicles. The car industry was …

Jan. 17, 2019 by Daniel Farber
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Originally published on Legal Planet.

In theory, cost-benefit analysis should be just as relevant when the government is deregulating as when it is imposing new regulations. But things don't seem to work that way. This is the second of two blog posts analyzing how costs and benefits figured in decisions during the past two years of unified GOP control of the federal government (read the first post here). Today, I focus on Congress.

For the first time in history, Congress made aggressive use of the Congressional Review Act (CRA) to roll back federal regulations. It had only been used once before, but in 2017, Congress overturned fifteen government regulations in short order. Liberals decried these regulatory rollbacks as a mass attack on the environment and the public interest more generally. Conservatives applauded Congress for cutting the heavy cost of government regulation and boosting the economy. It appears …

Jan. 15, 2019 by James Goodwin
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During his tenure, former Environmental Protection Agency (EPA) Administrator Scott Pruitt launched multiple assaults on environmental and public health safeguards. His attacks on clean air standards and water quality regulations made so little sense in our reality that he went to the absurd and extreme lengths of creating an alternative reality to make them look legitimate. That alternative reality is rendered in the "benefits-busting" rule, which would systematically distort the analyses EPA economists conduct to assess the economic impacts of the agency's pending rulemakings. With Acting Administrator Andrew Wheeler's Senate confirmation hearing scheduled for January 16, lawmakers will have the opportunity to learn more about this dangerous rulemaking – and hopefully call upon Wheeler to abandon it altogether.

As I explained in a previous post, the Trump EPA's benefits-busting rule is all about denying the real, positive impacts that environmental safeguards are making in our communities. Specifically, it …

CPR HOMEPAGE
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Citizen Suits, Environmental Settlements, and the Constitution: Part I

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