EPA's Mission: The Original Understanding Wasn't Cutting Regulatory Costs

by Daniel Farber | March 21, 2019

Originally published on Legal Planet.

What is EPA’s mission? To what extent is minimizing regulatory costs part of the core mission, as the Trump Administration seems to believe? Does the Trump-Pruitt/Wheeler view comport with original intent? History makes it clear that the answer is “no.”

The title of the agency itself suggests that the core mission is protecting the environment, just as the core mission of the Defense Department is presumably national defense (though cost isn’t irrelevant in either setting). It’s worthwhile, however, to take a closer look at the marching orders given to the agency when it was formed. As it turns out, we do have clear evidence of what Congress and the President had in mind.

EPA wasn’t established by a statute. It was established through a special process that no longer exists for government reorganization, which allowed the President to pull units out of existing parts of the government and put them together in a new agency. The process was initiated through an executive order by President Nixon.

In explaining his plan in a message to Congress, President Nixon said that “Our national government today is not structured to make a coordinated attack on the pollutants which debase the air we breathe, the water we drink, and the land that grows our food. Indeed, the present governmental structure for dealing with environmental pollution often defies effective and concerted action.” His message explained that the “principal aims” ...

Public Interest Community Calls on EPA Administrator to Halt Dangerous 'Benefits-Busting Rule'

by James Goodwin | March 19, 2019
Today, the Center for Progressive Reform and 46 other environmental, labor, and public health organizations sent a letter to Environmental Protection Agency (EPA) Administrator Andrew Wheeler calling on him to withdraw the agency's pending "benefits-busting" rule. Wheeler was recently confirmed as the official agency head, and, as the letter notes, he can begin his tenure on the right track by abandoning this dangerous rulemaking. The proposal is a vestige of the disastrous Scott Pruitt era that would radically overhaul how the ...

Declaring a Climate Change Emergency: A Citizen's Guide

by Daniel Farber | March 14, 2019
Originally published on Legal Planet. The possibility of declaring a national emergency to address climate change will probably remain under discussion for the next couple of years, particularly if the courts uphold Trump's "wall" emergency. For that reason, I thought it might be helpful to pull together the series of blog posts I've written on the subject. I want to emphasize three key points at the beginning: Declaring a climate emergency should be off the table if the Supreme Court rules ...

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

by Daniel Farber | March 13, 2019
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 ...

Can the House Save Science from the Trump Purge?

by Laurie Ristino | March 12, 2019
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 ...

Due to NEPA, Trump's 'One-In, Two-Out' Order Does Not Apply to Environmentally Protective Regulations

by Joel Mintz | March 11, 2019
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 ...

The Potential Benefits of Declaring a Climate Emergency

by Daniel Farber | March 04, 2019
Originally published on Legal Planet. I have a confession: When I started thinking about the possibility of a climate emergency declaration, it was mostly as a counterpoint to Trump's possible (now certain) declaration of an immigration emergency. As I've thought about it, however, it seems to me that there are enough potential benefits to make the idea worth serious consideration. A relatively restrained use of emergency powers could still have some real payoff. In general, I'm not in favor of expanding ...

New on 'Connect the Dots': The Frontline Communities Fighting Back Against Polluting Pipelines

by James Goodwin | February 21, 2019
For affected indigenous communities in the United States and Canada, new oil and gas pipelines snaking across their lands represent a new kind of attack. Dirty, polluting, dangerous, and built without the communities' consent, these pipelines are the inevitable outcome of North America's hydraulic fracturing and tar sands oil "revolutions" that have played out in recent decades. These indigenous frontline communities must bear the disproportionate costs brought about by developed nations' continued addiction to fossil fuels, all without seeing most ...

It's Official: Trump's Policies Deter EPA Staff from Enforcing the Law

by Joel Mintz | February 19, 2019
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 ...

National Security, Climate Change, and Emergency Declarations

by Daniel Farber | February 18, 2019
Originally published on Legal Planet. Trump finally pulled the trigger and declared a national emergency so he can build his wall. But if illegal border crossings are a national emergency, then there's a strong case for viewing climate change in similar terms. That point has been made by observers ranging from Marco Rubio to Legal Planet's own Jonathan Zasloff in a post last week. I agree, but I want to dig deeper because it's such an important point. In order to ...

Does the Future Have Standing?

by Daniel Farber | February 07, 2019
Originally published on Legal Planet. Climate change is not just a long-range problem; it's one that will get much worse in the future unless major emissions cuts are made. For instance, sea levels will continue to rise for centuries. But the people who will be harmed by these changes can't go to court: they haven't been born yet. How can their interests be represented in court? And even people now alive who might still be around in, say, 2100, will ...

Flipping the Conservative Agenda

by Daniel Farber | January 31, 2019
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 ...

Cap-and-Trade Could Fill Gaps in Governor Wolf's Climate Change Executive Order

by Amy Sinden | January 30, 2019
This post was originally published by JURIST. The news on the climate crisis has been bad lately and getting worse. In the face of President Trump's continued denial and his administration's diligent efforts to roll back every shred of progress made by the Obama administration and to prop up an ailing coal industry, the warnings from the scientific community have only become more dire. In November, 13 of Trump's own agencies released a 1,600-page report confirming that climate change is ...

The Worst of a Bad Lot

by Daniel Farber | January 24, 2019
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. ...

What's Wrong with Juliana (and What's Right?)

by Daniel Farber | January 22, 2019
Originally published on Legal Planet. Juliana v. United States, often called the "children's case," is an imaginative effort to make the federal government responsible for its role in promoting the production and use of fossil fuels and its failure to control carbon emissions. The plaintiffs ask the court to "declare [that] the United States' current environmental policy infringes their fundamental rights, direct the agencies to conduct a consumption-based inventory of United States CO2 emissions," and use that inventory to "prepare and ...

Wheeler Hearing Provides Opportunity to Learn More about 'Benefits-Busting' Rule

by James Goodwin | January 15, 2019
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 ...

Using Emergency Powers to Fight Climate Change

by Daniel Farber | January 14, 2019
Originally published on Legal Planet. Republicans are apparently worried that if Trump could use emergency powers by declaring border security a national emergency, the next president could do the same thing for climate change. There's no doubt that this would be far more legitimate than Trump's wall effort. Border crossings are much lower than they were ten years ago; he has said in the recent past that his prior efforts have vastly improved border security. In contrast, the Pentagon has classified ...

How Trump Officials Abuse Cost-Benefit Analysis to Attack Regulations

by Daniel Farber | January 09, 2019
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 ...

Environmental Policy

The planet faces unprecedented environmental challenges. Heading the list of threats is climate change, but other problems persist, including air and water pollution, toxic waste, and the protection of natural resources and wildlife. In recent years, we've been reminded that many of these problems , in their way, magnify the harm from natural disasters.

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

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The Year Ahead

Farber | Dec 31, 2018 | Environmental Policy

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Farber | Dec 31, 2018 | Environmental Policy

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