Where's the Beef?

by Daniel Farber | July 15, 2019

Originally published on Legal Planet

Mississippi recently passed a law that has the effect of banning terms like "veggie burger." It's easy to imagine other states passing similar laws. From an environmental view, that's problematic, because beef in particular is connected with much higher greenhouse gas emissions than plant products. It's not just the methane from cow-burps, it's also all the carbon emissions connected with growing corn to feed the cattle. But in addition to its environmental drawbacks, the Mississippi law is subject to severe constitutional problems.

I had to do a little digging to find the law itself. It's an amendment to a law requiring truthful labeling of meat products. It reads as follows: "A food product that contains cultured animal tissue produced from animal cell cultures outside of the organism from which it is derived shall not be labeled as meat or a meat food product. A plant-based or insect-based food product shall not be labeled as meat or a meat food product." The goal is to eliminate terms like "veggie burger" or "soy hot dog", on the theory that burgers and hot dogs are "meat food products."

The most obvious stumbling block is the First Amendment. Laws limiting commercial speech such as advertising and food labels must pass what's called the Central Hudson test, after the case where it was created. The Court explained that test as ...

Kisor v. Wilkie: A Reprieve for Embattled Administrative State?

by Robert Glicksman | July 10, 2019
Originally published by The George Washington Law Review. Reprinted with permission. Imagine a world in which administrative agencies whose actions are challenged in court are afforded little respect and even less deference from reviewing courts. Imagine further that congressional efforts to vest authority in these agencies to act as guardians of public health and safety, environmental integrity, consumer interests, and economic security are viewed as alarming threats to liberty and to the very foundations of the separation of governmental authority ...

The Witching Auer

by Daniel Farber | July 08, 2019
Originally published on Legal Planet. The Supreme Court’s recent opinion in Kisor v. Wilkie was eagerly awaited by administrative law experts. It is one skirmish in the ongoing war over deference to agencies. In this case, the issue was whether to overrule the Auer doctrine, which requires courts to defer to an agency’s reasonable interpretation of its own regulations. This doctrine, like its big brother, the Chevron doctrine, has become a target for conservative scholars and judges. The Auer doctrine has ...

Op-Ed Shines Light on Trump EPA's Efforts to Re-Rig Cost-Benefit Analysis for Polluters

by James Goodwin | July 02, 2019
Last night, CPR Member Scholar Amy Sinden and I published an op-ed in The Hill explaining the dangers of a new rulemaking recently launched by Environmental Protection Agency (EPA) Administrator Andrew Wheeler and former air office Assistant Administrator Bill Wehrum. Through this rulemaking, Wheeler and Wehrum – both former industry lobbyists – will kick off the EPA's agency-wide effort to overhaul how it conducts cost-benefit analysis for its pending rules to ensure that this methodology remains heavily biased in favor ...

The Census Case and the Delegation Issue

by Daniel Farber | July 01, 2019
Originally published on Legal Planet. In a recent decision, four of the conservative Supreme Court Justices indicated a desire to limit the amount of discretion that Congress can give administrative agencies. If taken literally, some of the language they used would hobble the government by restricting agencies like EPA to "filling in the details" or making purely factual determinations. Some observers have feared that the conservatives were on the verge of dismantling modern administrative law. As I indicated in a ...

Justice Gorsuch versus the Administrative State

by Daniel Farber | June 27, 2019
Originally published on Legal Planet. Gundy v. United States was a case involving a fairly obscure statute regulating sex offenders, but some have seen it as a harbinger of the destruction of the modern administrative state. In a 4-1-3 split, the Court turned away a constitutional challenge based on a claim that Congress had delegated too much authority to the executive branch. But there were ominous signs that at least four Justices are willing to change the ground rules in ...

Opinion Analysis: Virginia's Moratorium on Uranium Mining Is Not Pre-empted, but the Role of Legislative Purpose Remains Open for Debate

by Emily Hammond | June 18, 2019
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). The Supreme Court has concluded that Virginia's decades-old moratorium on uranium mining is not pre-empted by the Atomic Energy Act. But there is no clear answer to the question that pervaded the briefing and oral argument: What is the proper role for state legislative purpose in a pre-emption analysis? Monday's judgment was accompanied by three opinions: a lead opinion written by ...

Pollution Bursts and Public Health

by Daniel Farber | June 13, 2019
Originally published on Legal Planet. When a facility installs and operates the required pollution control equipment, we normally think of the pollution problem as solved. But there still may be bursts of pollution associated with start-up, shut-down, accidents, or external events. A recent study of pollution in Texas shows that these events have substantial health impacts, involving significant deaths and overall costs of about a quarter billion dollars a year in that state. Ironically, the study comes out at the ...

Getting Ready for Conference on Regulation as Social Justice

by James Goodwin | May 31, 2019
Next Wednesday, June 5, CPR is hosting a first-of-its-kind conference on Regulation as Social Justice: Empowering People Through Public Protections, which will bring together a diverse group of several dozen advocates working to advance social justice to serve as a wellspring for the development of a progressive vision for the future of U.S. regulatory policy. Much of the day’s proceedings will be dedicated to an innovative form of small group discussion sessions that we refer to as “Idea Exchanges,” which ...

Trump EPA Hiding Hundreds of Deaths in Plain View

by Daniel Farber | May 28, 2019
According to press reports, EPA is preparing to ignore possible deaths caused by concentrations of pollutants occurring below the national ambient air quality standards (NAAQS). This is a key issue in a lot of decisions about pollution reduction. For instance, there is no NAAQS for mercury, but pollution controls on mercury would, as a side benefit, reduce pollution levels of harmful particulates. According to EPA’s prior cost-benefit analyses, those reductions could save many lives even in areas where current levels of ...

EPA's Partial Retreat on Cost-Benefit Analysis

by James Goodwin | May 22, 2019
In a memo sent last week but just now released, EPA Administrator Andrew Wheeler backtracked a bit on one of the administration's initiatives to undercut sensible safeguards. His May 13 memo abandons the agency's push last year to establish uniform standards for bending agency decision making in favor of cost-benefit analysis, regardless of statutory directives, and instead directs that this effort follow a statute-by-statute approach. Wheeler’s retreat on this particular effort to ignore the life-saving benefits of environmental rules is good ...

CPR Member Scholars Feature Prominently in this Year's Duke Administrative Law Symposium

by James Goodwin | May 20, 2019
The annual Duke Law Journal Administrative Law Symposium has long served as one of the most prestigious fora for cutting-edge administrative law scholarship. This year's event, which featured the leadership and contributions of six CPR Member Scholars, was no exception. Each symposium is built around a theme, and this year's topic was "Deregulatory Games," which examined how the Trump administration's aggressive and often bizarre assault on our system of regulatory safeguards has tested the long-standing doctrines, norms, and institutions of ...

Buzbee in NYT: Census Case Tests SCOTUS Majority's Commitment to Political Neutrality

by Matthew Freeman | April 23, 2019
CPR Member Scholar Bill Buzbee has an op-ed in The New York Times this morning in which he observes that the Supreme Court’s conservative majority faces a true rubber-meets-the-road test as it considers the Trump administration’s determination to add a citizenship question to the 2020 census, despite multiple procedural and substantive problems with the plan. The administration’s thinly veiled objective with the additional question is to discourage participation in the census by non-citizens, who might understandably fear that revealing their ...

CPR Scholars and Staff Call on EPA to Abandon Proposed Attack on Mercury Rule

by James Goodwin | April 18, 2019
One of the most successful environmental regulations in U.S. history is under attack from the Trump EPA – and its demise might be accomplished by shady bookkeeping. That is the conclusion of comments filed by Center for Progressive Reform Member Scholars and staff on April 17. Since it was issued in 2011, the Mercury and Air Toxics Standard (MATS), which establishes rigorous technology-based standards to limit hazardous air pollution from fossil-fueled power plants – has reduced electric utilities' emissions of ...

OMB Leveraging the CRA to Add to Its Oversight of Independent Regulatory Agencies

by Bill Funk | April 16, 2019
Last week, the acting director of the Office of Management and Budget (OMB) issued a memorandum to all agencies regarding compliance with the Congressional Review Act (CRA). This memo supersedes one issued in 1999 and pulls independent regulatory agencies – specifically designed by Congress to be less prone to political interference than executive agencies – into a far more centralized CRA review process. The CRA requires federal agencies to send newly adopted rules to the House and Senate before the ...

CPR Member Scholars to EPA: Clean Water Rule Rollback Based on Bad Law, Weak Science

by Matt Shudtz | April 15, 2019
The federal Clean Water Act has been a resounding success as a tool for restoring our nation's waterways and preserving wetlands and other vital components of our ecosystems. But that success depends, in part, on restricting development in ecologically sensitive areas. That's why the Trump administration has proposed to narrow the scope of the Clean Water Act's protections. Not by amending the law, mind you – that wasn't possible when Republicans controlled both houses of Congress, much less now. Instead, ...

What Else Should Congress Investigate?

by Daniel Farber | April 12, 2019
Originally published on Legal Planet. Every day, it seems that there is a headline about some investigation involving campaign finance violations, the White House, or the actions of some foreign power. Perhaps that's all the bandwidth that Congress has. But there are other areas calling out for inquiry. Here are just a few: CAFE Standards. The car industry asked for delays and modifications in fuel efficiency standards. The administration came back with a drastic rollback that went far beyond what ...

Economists vs. Environmentalists: Time for D├ętente?

by Daniel Farber | April 09, 2019
Originally published on Legal Planet. Cost-benefit analysis has long been the target of environmentalist ire. But one lesson of the Trump years has been that economic analysis can be a source of support for environmental policy — it is the anti-regulatory forces who have to fudge the numbers to justify their actions. Most energy and environmental economists are aghast at Trump's assaults on climate change regulations — many of them would instead favor stricter regulation over the status quo. Maybe ...

Regulatory Policy

When it comes to health, safety and the environment, executive branch enforcement of the law has become yet another arena to fight and re-fight policy battles presumably settled in Congress. In particular, regulated entities, including companies that pollute or  make potentially dangerous products, spend millions working to block, delay, and unravel such protections.

Kisor v. Wilkie: A Reprieve for Embattled Administrative State?

Glicksman | Jul 10, 2019 | Regulatory Policy

The Witching Auer

Farber | Jul 08, 2019 | Regulatory Policy

The Census Case and the Delegation Issue

Farber | Jul 01, 2019 | Regulatory Policy

Justice Gorsuch versus the Administrative State

Farber | Jun 27, 2019 | Regulatory Policy
Recommended Resources:
Climate Change
Time for Real Action on Global Warming

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