USCapitol-twilight-wide.jpg
Feb. 28, 2019 by James Goodwin

Resolution of Disapproval: Call for Repealing the CRA Featured in 'The Environmental Forum'

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 covering a wide variety of workplace, financial, and environmental protections. In the article, I argue that this experience has fully normalized abuse of the CRA, in which narrow partisan majorities use the law's expedited procedures to block implementation of broadly popular public interest laws – laws that those same members of Congress don't have …

Feb. 19, 2019 by Joel Mintz
epa-hq-cc-nrdc-wide.jpg

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
WorkerSafetyCollage_wide.jpg

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
WorkerSafetyCollage_wide.jpg

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
WorkerSafetyCollage_wide.jpg

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
WorkerSafetyCollage_wide.jpg

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
USCapitol_wide.JPG

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 …

Jan. 9, 2019 by Daniel Farber
calculator-buttons-wide.jpg

This op-ed was orignally published in the Washington Monthly.

In December of 2017, Donald Trump gathered the press for a variation on a familiar activity from his real estate mogul days. Stretched between a tower of paper taller than himself, representing all current federal regulations, and a small stack labeled "1960," was a thick piece of red ribbon – red tape, if you will. The president promised that "we're going to get back below that 1960s level." With his daughter Ivanka and other advisors by his side, Trump used comically large scissors to cut the ribbon.

Cutting regulations has been a priority for nearly every Republican politician since at least the 1980s. But the Trump-era GOP, unsatisfied with the existing deregulatory toolkit, has found a bigger pair of scissors. Call it cost-cost analysis: to justify getting rid of regulations they dislike, Republicans have decided to systematically …

Dec. 11, 2018 by Dave Owen
stream-oregon-wide.jpg

Originally published on Environmental Law Prof Blog.

This morning, the U.S. Army Corps of Engineers and EPA released a proposed new rule that would change the agencies' shared definition of "waters of the United States." That phrase defines the geographic scope of federal jurisdiction under the Clean Water Act. 

The proposed rule would narrow the scope of federal jurisdiction, primarily in two ways.  First, it would eliminate jurisdiction for "ephemeral" streams – that is, streams where water flows only during and shortly after precipitation events. Second, it would eliminate jurisdiction for wetlands that lack an intermittent or permanent surface connection to navigable-in-fact waterways and that are not directly adjacent to those waterways. In practice, this will mean removing protections for wetlands that are close to surface waterways and are connected to those surface waterways through groundwater flows.

In the rule itself, and in the rhetoric surrounding …

Dec. 10, 2018 by Daniel Farber
SupCtColumns_wide.jpg

Cross-posted from Legal Planet.

In terms of regulatory policy, the second half of Trump's term is shaping up to look a lot like Obama's final two years in office. Congress won't be doing much to advance Trump's environment and energy agenda, as was the case with Obama. So, like Obama, Trump's focus will be on administrative action, particularly regulatory initiatives (or deregulatory ones, in Trump's case). The big question is how these efforts will fare in court. I want to discuss three aspects of that question: timing, judicial review of statutory issues, and judicial review of policy analysis.

Timing. The Trump people are keenly aware that some of Obama's most important rules were still in the litigation process when he left office, which has kept those rules hanging in the wind for the two years since Trump took office. They seem desperate to avoid the same fate …

CPR HOMEPAGE
More on CPR's Work & Scholars.
May 4, 2022

Clarifying the Congressional Review Act

April 25, 2022

Biden Undoes NEPA Rollback

July 20, 2021

The Specter of Dictatorship Behind the Unitary Executive Theory

March 2, 2021

Recalculating the Cost of Climate Change

Feb. 23, 2021

The Hill Op-ed: Biden Has the Power to Restore Good Governance

Jan. 25, 2021

The Controversial Congressional Review Act

Jan. 20, 2021

The Era of 'Small Government' Must End: Reflections on the Capitol Insurrection