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May 4, 2022 by Daniel Farber

Clarifying the Congressional Review Act

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, however, no one really knows what "substantially the same" means. More than "a little similar" and less than "identical," presumably, but that leaves a very large gray area.

Some agencies have concluded that they can't even issue a rule dealing with the same subject as the old one. A couple of agencies …

May 2, 2022 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

Court watchers and environmentalists are waiting with bated breath for the U.S. Supreme Court to rule on West Virginia v. EPA, the Court's most important climate change case in a generation. The issue in that case is what, if anything, the U.S. Environmental Protection Agency (EPA) can do to regulate carbon emissions from power plants and factories. Last week, conservative states asked the Court to intervene in another climate change case. How the Court responds could give us hints into just how far the activist conservative majority is likely to go in the West Virginia case.

The new case is a challenge to the government's use of the social cost of carbon in making decisions about regulation. The social cost of carbon is an estimate of the harm done by the emission of a …

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

Last week, the White House undid an effort by the Trump administration to undermine the use of environmental impact statements. The prior rules had been in effect since 1978. Restoring the 1978 version was the right thing to do. The Trump rules arbitrarily limited the scope of the environmental effects that the U.S. Environmental Protection Agency (EPA) can consider under the National Environmental Policy Act (NEPA). Their goal was clearly to prevent consideration of climate change.

More specifically, the Trump revision cut references to indirect or cumulative environmental impacts and discouraged consideration of effects that are remote in time, geographically remote, or the product of a lengthy causal chain. These restrictions flew in the face of everything we know about harm to the environment. We know that harm is often long-term rather than immediately obvious …

April 12, 2022 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

The Trump administration left a trail of regulatory destruction behind it. Cleaning up the mess and issuing new regulations is Priority #1 for the Biden administration. Under U.S. Environmental Protection Agency (EPA) head Michael Regan, the effort is beginning to pick up steam.

EPA has begun the year with several major new regulatory efforts. No one of them is transformative standing alone, but their cumulative impact will be substantially cleaner air and lower carbon emissions.

February 28. EPA proposed an unexpectedly strong expansion of the existing rules governing interstate air pollution. The proposal would strengthen existing limits for coal and gas-fired power plants, but it would also add other categories of industry such as cement. In addition, it adds western states like California to the rule's coverage. EPA estimates that the benefits of the rule …

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

The Biden administration is slowly grinding away at an important regulatory task: reconsidering the air quality standards for particulates and ozone. Setting those standards is an arduous and time-consuming process, requiring consideration of reams of technical data. For instance, a preliminary staff report on fine particulates (PM2.5) is over 600 pages long. When the process is done, the result will not only be better protection of public health. It will also be a reduction in emissions of carbon dioxide and other global warming agents.

Quick legal background: The Clean Air Act requires EPA to set national ambient air quality standards or NAAQS (pronounced "knacks"). They are supposed to be set at a level that, "allowing an adequate margin of safety, are requisite to protect the public health." They're supposed to be revised every five …

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 15, 2022 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

On March 11, there were two seismic shocks in the world of gas pipeline regulation. The Federal Energy Regulatory Commission (FERC) has spent years resisting pressure to change the way it licenses new gas pipelines. The whole point of a natural gas pipeline is to deliver the gas to users who will burn it, thereby releasing carbon dioxide into the atmosphere. FERC has steadfastly refused to take those emissions into account. The D.C. Circuit held that position illegal in an opinion released last Friday. That same day, by coincidence, FERC published guidelines in the Federal Register explaining how it proposed to consider those emissions.

The D.C. Circuit opinion followed up on previous rulings but left no room for doubt about the court's position. The case involved a minor pipeline upgrade by the Tennessee Natural …

Feb. 28, 2022 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

The environmental justice movement began with a focus on neighborhood struggles against toxic waste facilities and other local pollution sources. That focus now includes other measures to ensure that vulnerable communities get the benefit of climate regulations. The most powerful tool for assisting those communities, however, may be the National Ambient Air Quality Standards (NAAQS). The NAAQS (pronounced "knacks") are supposed to be the maximum amount of air pollution consistent with protection of public health and welfare.

Air pollution is the biggest threat to low-income communities and communities of color. As the American Lung Association has said:

    "The burden of air pollution is not evenly shared. Poorer people and some racial and ethnic groups are among those who often face higher exposure to pollutants and who may experience greater responses to such pollution. Many studies have …

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 …

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

Clarifying the Congressional Review Act

May 2, 2022

Taking the Supreme Court's Temperature on Global Warming

April 25, 2022

Biden Undoes NEPA Rollback

April 12, 2022

Regan Hits His Stride

April 4, 2022

Pollution Control as Climate Policy

March 22, 2022

(Mis)Estimating Regulatory Costs

March 15, 2022

Pipelines, Emissions, and FERC