CPR Archive for Emily Hammond

The Importance of the Murray Energy Case and Administrative Procedure

by Emily Hammond | April 21, 2015

Last week, the D.C. Circuit heard oral argument on a highly unusual attempt to short-circuit EPA’s rulemaking process for greenhouse gas regulation of existing power plants.  Despite statutory and constitutional hurdles to premature litigation, the petitioners—the coal-fired industry and coal-producing states—argued that the importance of the proposed rule justifies court intervention.

The rule’s importance is precisely why it is critical that the agency complete the administrative process.

That industry groups will file lawsuits over EPA’s greenhouse gas initiatives is unremarkable.  After all, litigation is to be expected:  frequently, both the regulated community and public interest groups challenge major environmental rules.  Nor is it unusual that interested parties may attempt to hijack a regulatory policy before a rule is finalized.  Scholars have documented (for example, here, here, and here) the many contacts between agencies and regulated industries that occur at various stages of a rules’ development.  What is more, contacts—from any interested party—are perfectly legal provided the agency discloses anything it relies on in support of the rule.  Congressional pressure and Presidential direction may also be brought to bear on agencies during their decisionmaking processes.

But one institution stands apart: the courts.  That the third branch will not interfere with agencies’ unfinished business is one of the strongest principles of both administrative and constitutional law.  First, the whole point of proposing a rule and taking comments is to enhance the administrative law values ...

Power Plant Regulation and the Rhetoric of Reliability

by Emily Hammond | March 15, 2013
The coal-fired power plant industry has always fought air-emissions standards enacted pursuant to the Clean Air Act (CAA).  But the industry has increasingly raised the specter of reliability problems, arguing that EPA’s recent “tsunami” of regulations will cause a “train wreck,” forcing companies to retire aging plants so rapidly that lost capacity will outpace the development of new sources.  The result, they maintain, will be such an unmanageable strain on the regional grids that they will have to impose brownouts ...

Keeping the Independent Agencies Independent

by Emily Hammond | September 13, 2012
The proposed Independent Agency Regulatory Analysis Act, S. 3468, is a troubling idea. As Rena Steinzor explained here when the bill was introduced, it would authorize the President to bring independent agencies under the purview of OIRA.  This proposal is worrisome given the persistent flaws inherent in OIRA’s cost-benefit approach; extending the reach of a poorly functioning process is hard to justify.  But even more problematic is where S. 3468 treads:  the domain of independent agencies.  This development calls for ...

Also from Emily Hammond

 Emily Hammond is a Professor of Law at the George Washington University Law School.

Power Plant Regulation and the Rhetoric of Reliability

Hammond | Mar 15, 2013 | Environmental Policy

Keeping the Independent Agencies Independent

Hammond | Sep 13, 2012 | Regulatory Policy

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