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July 1, 2021 by Daniel Farber

The Illusions of Takings Law

This post was originally published on Legal Planet. Reprinted with permission.

For the last century, the Supreme Court has tried to operationalize the idea that a government regulation can be so burdensome that it amounts to a seizure of property. In the process, it has created a house of mirrors, a maze in which nothing is as it seems. Rules that appear crisp and clear turn out to be mushy and murky. Judicial rulings that seem to expand the rights of property owners turn out to undermine those rights. The Court's decision last week in Cedar Point Nursery v. Hassid illustrates both points.

Cedar Point Nursery involved a California law giving labor organizers the right to go into a farm to talk with farmworkers, thereby interfering with the owner's ability to exploit its workers. (No, that's not quite the language the Court used.) The Supreme Court held that, because the government was authorizing an intrusion onto farmland, this was a taking of property that the government would have to pay for. Rick Frank wrote a great overview of the ruling's implications last week, but I want to dive deeper into a couple of points.

The Court's ruling seems simple enough …

June 28, 2021 by Alina Gonzalez
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This month, environmental justice advocate Sharon Lavigne won the world's largest prize for environmental advocacy for blocking a chemical giant from building a roughly $1.3 billion plastic manufacturing plant in St. James Parish, Louisiana, a majority-Black community. Funded by the late Richard and Rhoda Goldman, the annual Goldman Environmental Prize is awarded to six people around the world who protect and enhance the environment in their communities

At the outset, Wanhua Chemical, the company behind the proposed facility, seemed likely to prevail. Wanhua is the world's largest producer of methylene diphenyl diisocyanate (MDI), showing its dominance in the global market.

But Lavigne did not falter. Through courage and persuasion, she defeated the petrochemical titan, which wielded power over local and state governments to the detriment of community members. For far too long, the petrochemical industry has targeted low-income communities and communities of color, believing it can …

June 25, 2021 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

Even most lawyers, let alone the rest of the population, are a bit fuzzy on how the regulatory system works. As the Biden administration is gearing up to start a slew of regulatory proceedings, here's what you need to know about the process.

Issuing Regulations

Q: Where do agencies like EPA get the power to create regulations?

A: EPA and other agencies are created by Congress. They also get the power to issue regulations from laws passed by Congress. For instance, the Clean Water Act tells EPA to issue regulations based on the "best available technology" for controlling the discharge of toxic water pollutants.

Q: Who decides whether an agency should start the process to issue a new regulation?

A: Some statutes set deadlines and require agencies to act. In those situations, a court can intervene …

June 24, 2021 by Maggie Dewane, Allison Stevens, Laurie Ristino, Victor Flatt, Steph Tai
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The Center for Progressive Reform stands with all who are working to advance equity and equality for LGBTQ Americans. To commemorate Pride Month, we asked three CPR leaders to weigh in on progress in this area. Below, Board Member Laurie Ristino and Member Scholars Victor Flatt and Steph Tai offer their perspectives on progress made and work to do, as well as misperceptions about the LGBTQ community and lessons learned from past victories.

Laurie Ristino

Laurie Ristino

“Over the last several decades, LGBTQ rights have made serious progress, gains that require vigilant advocacy to retain and further equal justice for all LGBTQ people.  

“At the same time, the struggle for BIPOC rights continues. In America, we have simply failed to address racial injustice and inequity. What can we learn from the advocacy successes of the LGBTQ experience to move the dial forward so all Americans may enjoy the same …

June 16, 2021 by Robin Kundis Craig
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This is the second of of a two-part post. Part I is available here.

In the first part of this post, I briefly touched on the chaotic history of the EPA and Army Corps' definition and regulation of "waters of the United States" under the Clean Water Act. I also pointed out that this definition and its varying interpretations across courts and administrations can have significant impacts on water pollution prevention and the protection of our nation's waterways. With the Biden administration tackling a redo of the "waters of the United States" rule, court challenges are sure to follow. In this post, I'll explore three approaches to the rule that might help it survive judicial review.

  1. Openly Acknowledge that Section 404 of the Clean Water Has Hijacked the “Waters of the United States” Discussion and Provide a Corrective

    The Clean Water Act, for better or for worse …

June 16, 2021 by Robin Kundis Craig
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This is the first of of a two-part post. Part II is available here.

Last week, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers announced that the regulations defining “waters of the United States” under the Federal Water Pollution Control Act (better known as the Clean Water Act) are once again going to change.

The importance of that announcement is best demonstrated through a quick recap of the chaos that has dominated this element of Clean Water Act jurisdiction. In the 1980s, the EPA and Army Corps finally agreed on a regulatory definition of “waters of the United States,” a phrase that Congress had used in its 1972 overhaul of the Federal Water Pollution Control Act to define “navigable waters.” The phrase is also one of the key jurisdictional terms defining the waters to which the restructured law applies.

“Waters of …

June 15, 2021 by Alina Gonzalez
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A few years ago, the prospects of offshore wind energy seemed lofty, but the industry is finally taking off. As part of his efforts to combat climate change, President Joe Biden has pledged to double offshore wind production by 2030. This commitment stems from the enormous benefits and potential that wind energy can provide as we transition to clean, sustainable energy. 

Harnessing something as intangible as wind may seem like an unlikely source of energy, but it’s downright powerful, thanks to the design and capacity of offshore wind farms. A single rotation of General Electric’s most powerful turbine, Haliade-X, can power a household in the United Kingdom for two days. Results may differ slightly in the United States because the average U.S. household uses about three times more electricity than the average U.K. household. 

Last month, the Biden administration approved the Vineyard Wind …

June 10, 2021 by James Goodwin
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Political Interference from White House Regulatory Office May Have Played a Role

The Labor Department’s emergency COVID standard, released today, is too limited and weak to effectively protect all workers from the ongoing pandemic. The workers left at greatest risk are people of color and the working poor.

Workers justifiably expected an enforceable general industry standard to protect them from COVID-19, and the Center for Progressive Reform (CPR) has been calling for such a standard since June 2020. But what emerged after more than six weeks of closed-door White House review was a largely unenforceable voluntary guidance document, with only health care workers receiving the benefit of an enforceable standard.

The interference with the COVID standard by the White House regulatory office, the Office of Information and Regulatory Affairs (OIRA), sends the wrong signal about the Biden administration's commitment to improving the regulatory review process, which …

June 9, 2021 by James Goodwin
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In addition to cleaning up our environment, the U.S. Environmental Protection Agency (EPA) must also clean up the mess the Trump administration left behind.

The Biden EPA recently took an important step in this direction by finalizing its plan to rescind a Trump-era rule that would drastically overhaul how it analyzes the rules it develops to implement the Clean Air Act. If implemented, Trump's "benefits-busting" rule would have sabotaged the effective and timely implementation of this popular and essential law, which protects the public from dangerous pollution that worsens asthma and causes other diseases. The rescission is slated to take effect next week.

On June 9, the EPA held a public hearing to gather feedback on rescinding the rule, which CPR has been tracking for several years. CPR Member Scholars Rebecca Bratspies and Amy Sinden joined me in testifying in support.

A New and Better Approach …

June 9, 2021 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

Hurricanes Harvey and Maria. California wildfires. Superstorm Sandy. The great Texas blackout. The list goes on.

These mega-events dramatize the need to improve our disaster response system. The trends are striking: escalating disaster impacts, more disaster clustering, more disaster cascades, and less predictability. We need to up our game. Lisa Grow Sun and I discuss the implications in a new paper, but here are a few of the key takeaways.

Escalating impacts. From 1980 to 2020, there were an average of seven billion-dollar events per year. (Interestingly, nearly half of them were in Texas.) But from 2015-2020, the average was 16 per year. 2020 had a record-breaking 22 billion-dollar events. Why? It's partly higher GDP and population, so more people and wealth are at risk. More people and infrastructure are located in high-risk areas, especially coasts …

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