Kavanaugh's Threat to Government Transparency and Accountability

by Daniel Farber | July 19, 2018

Presidents control crucial government agencies with authority over the environment, food and drug safety, and workplace conditions. Through various environmental, health, safety, and other laws, Congress has given these agencies broad authority to issue rules and regulations that affect the lives of every American. But current law provides safeguards against arbitrary decisions – safeguards that Judge Brett Kavanaugh would weaken or eliminate if confirmed to the U.S. Supreme Court.

These safeguards are designed to promote public input and force agencies to disclose their evidence and reasoning to public scrutiny. Agencies must disclose proposed rules, obtain public comment, and then provide explanations of their decisions. As interpreted by the courts, this means an agency has to provide enough information to allow substantive comments, and it has to give a reasoned explanation for its decisions. But Kavanaugh seemingly wants to give agencies much more ability to hide the ball. 

In a case called American Radio Relay League v. FCC, Kavanaugh advocated radical surgery on current safeguards. Briefly, the case involved a Bush-era FCC approval of a promising new technology for using power lines to supply broadband internet, which could result in radio interference. Based on studies by its staff, the FCC decided that a few simple precautions would prevent any serious interference. But it didn't release the studies until it was sued under the Freedom of Information Act. And even when its decision was being reviewed by a court, it ...

The Hill Op-Ed: Trump's Policies Blasting at the Foundations of Conservation in Public Land Law

by Robert Glicksman | July 19, 2018
This op-ed originally ran in The Hill. Last month, two Inspectors General issued scathing reports about their departments' behavior. The Justice Department's IG got all the attention, while largely overlooked was a disturbing report from the Interior Department IG, who concluded that the agency had no reasonable rationale for halting a major study of the health risks of mountaintop removal mining. The study was already under way, and nearly half of its $1 million price tag had already been spent, but Secretary Ryan Zinke and ...

Duluth News Tribune Op-Ed: U-turn on Twin Metals a Massive Giveaway of Irreplaceable Public Resources

by Alexandra Klass | July 17, 2018
This op-ed originally ran in the Duluth News Tribune. Any Minnesotan who has ever dipped a canoe paddle, pitched a tent, or laced up a hiking boot while visiting the Boundary Waters Canoe Area Wilderness can tell you why it is the nation's most-visited wilderness area and considered a crown jewel of Minnesota. Unfortunately, Twin Metals, a subsidiary of the Chilean mining giant Antofagasta PLC, has its eye on the area in hopes of operating a sulfide-ore copper-nickel mine, bringing one ...

If Confirmed, Kavanaugh Would Tilt Supreme Court against Public Protections

by Matt Shudtz | July 10, 2018
Last night, President Donald Trump set the stage for a contentious debate about American social and economic welfare in the decades to come, nominating a Washington insider with a narrow worldview to the Supreme Court. Brett Kavanaugh's opinions on issues related to reproductive and civil rights are at the forefront of many voters' minds, but there's another danger that deserves just as much attention: What Kavanaugh would do on issues involving protections for consumers, workers, and the environment if confirmed ...

Senate Must Preserve Rule of Law When Considering Benczkowski and Pruitt's Successor

by David Driesen | July 09, 2018
In addition to deciding the fate of a Supreme Court nominee, the Senate must soon consider whether to approve Brian Benczkowski as head of criminal enforcement for the Department of Justice and a nominee to replace Scott Pruitt as EPA administrator. In early 2017, I urged senators to fulfill their constitutional responsibilities by only approving nominees who would faithfully execute the laws of the United States. But the Senate approved Pruitt anyway, with disastrous results. The chamber now needs to ...

Scott Pruitt Wants to Pick Winners and Losers by Cooking the Books at EPA

by James Goodwin | June 28, 2018
UPDATE (July 2, 2018): EPA has granted a one-month extension to its original comment period. Public comments on the advance notice of proposed rulemaking are now due on August 13. Soon after his confirmation, EPA Administrator Scott Pruitt quickly set out to take a "whack-a-mole" approach to advancing his anti-safeguard agenda, attacking particular rules designed to protect Americans and the environment from specific hazards – climate change, various air and water pollutants, and so on – one by one. But ...

Nothing to Celebrate as TSCA Reform Turns Two

by Katie Tracy | June 22, 2018
June 22 marks the two-year anniversary of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (colloquially referred to as TSCA reform or new TSCA). The 2016 law provided some hope that the U.S. Environmental Protection Agency (EPA) would finally address the potential risks from tens of thousands of untested and unregulated chemicals common in our households and hygiene products, our food and drinking water, our air, and our workplaces. Unfortunately, under President Trump and Scott Pruitt's leadership, ...

At Small Business Hearing, CPR's Ristino Will Connect the Dots between Strong Safeguards and Strong Small Farms

by James Goodwin | June 21, 2018
This morning, CPR Member Scholar and Vermont Law School Professor Laurie Ristino will testify at a hearing before the Subcommittee on Agriculture, Energy, and Trade of the House Small Business Committee. The majority's not-so-subtle objective for the hearing is to apply familiar conservative talking points against federal regulations to the specific context of small farms.  In contrast to the subcommittee majority's three witnesses, all of whom represent industry trade associations that have strongly criticized environmental and other regulations in the ...

Deconstructing Regulatory Science

by Wendy Wagner | June 19, 2018
Originally published on The Regulatory Review. Reprinted with permission. The U.S. Environmental Protection Agency (EPA) Administrator Scott Pruitt recently opened another front in his battle to redirect the agency away from its mission to protect human health and the environment. This time, he cobbled together a proposed rule that would drastically change how science is considered during the regulatory process. Opposition soon mobilized. In addition to the traditional forces of public interest groups and other private-sector watchdogs, the editors of the ...

Agency U-Turns

by Daniel Farber | June 18, 2018
Cross-posted from LegalPlanet. The Trump administration is doing its best to wipe out Obama's regulatory legacy. How will the courts respond to such a radical policy change? The philosophical clash between these last two presidents is especially stark, but this is far from being the first time that agencies have taken U-turns. This is the fifth time in the past 40 years that control of the White House has switched parties, with accompanying changes in regulatory approaches. Yet the underlying statutory ...

Laying Down the Law on Rule Delays

by Lisa Heinzerling | June 14, 2018
Originally published on The Regulatory Review. Reprinted with permission. Since the Reagan administration, it has become commonplace for new presidential administrations, in one of their first official acts after inauguration, to freeze at least some pending regulatory actions of the prior administration. These freezes have been of varying breadth and have taken varying forms. The Trump administration’s regulatory freeze was notable for its sweeping scope and blunderbuss execution. In the early months of President Donald J. Trump’s presidency, agencies delayed many ...

Symposium on Regulatory Safeguards Features Warren, Frosh, Three CPR Scholars

by James Goodwin | June 04, 2018
Tuesday afternoon, three CPR Member Scholars – William Buzbee, Lisa Heinzerling, and Rena Steinzor – will be among the experts featured at a major symposium on the threats facing our system of regulatory safeguards. The symposium, The War on Regulation: Good for Corporations, Bad for the Public, was organized by the Coalition of Sensible Safeguards (CSS), which CPR co-leads as an executive committee member, and will include a keynote address from Sen. Elizabeth Warren (D-MA) and closing remarks from Maryland ...

Shapiro Takes on Pruitt's Pseudo-Transparency Rule

by Matthew Freeman | May 29, 2018
While most of the press EPA Administrator Scott Pruitt is getting these days has to do with his various over-spending scandals, his more lasting impact is likely to be his scorched-earth approach to environmental protections. In an op-ed in The Hill earlier this month, CPR’s Sid Shapiro highlighted one way Pruitt hopes to make an across-the-board, anti-environment impact: By limiting the scope of scientific studies that his agency may consider when developing safeguards. Under the guise of greater transparency, Pruitt ...

New Report: It's Time to Repeal the Congressional Review Act

by James Goodwin | May 02, 2018
Over the last couple of weeks, conservatives in Congress have continued their assault on public safeguards using the once-obscure and once-dormant Congressional Review Act (CRA). If their latest adventure succeeds, it will be the 16th public protection that these members, working with in concert with President Donald Trump, have obliterated over the last year, laying waste to a broad and diverse range of measures related to public health, safety, the environment, and consumer financial protection.  The anti-safeguard lawmakers behind these ...

Scholars Call Out Congressional Committee for 'Mythification' of NEPA

by James Goodwin | April 24, 2018
Tomorrow, anti-environmental members of the House Natural Resources Committee will hold a hearing provocatively titled, "The Weaponization of the National Environmental Policy Act and the Implications of Environmental Lawfare" – yet another in a long line of conservatives' attempts to justify myriad legislative attacks against this bedrock environmental law. As more than 100 CPR Member Scholars and other academic leaders explain in a letter to committee members, though, the hearing would be more aptly titled "The Mythification of NEPA."  The ...

At House Judiciary Hearing, CPR's Hammond Calls Out Efforts to Rig Environmental Review Process

by James Goodwin | April 12, 2018
This morning, CPR Member Scholar and George Washington University Law Professor Emily Hammond is set to testify before the House Judiciary Committee's Subcommittee on Regulatory Reform, Commercial, and Antitrust Law at a hearing that will look at two highly flawed bills. While their particulars differ, each is conspicuously (if a bit clumsily) designed to rig the environmental permitting process to allow industry groups to ram through big infrastructure and construction projects while shutting out the public from its traditional and ...

CPR's 2018 Op-Eds, Part One

by Matthew Freeman | April 11, 2018
CPR’s Member Scholars and staff are off to a fast start on the op-ed front in 2018. We list them all on our op-ed page, but here’s a quick roundup of pieces they’ve placed so far. Member Scholar Alejandro Camacho joins his UC-Irvine colleague Michael Robinson-Dorn in a piece published by The Conversation. In "Turning power over to states won't improve protection for endangered species," they summarize their recent analysis of state endangered species laws and state funding for enforcement. They ...

The Guidance Racket

by Rena Steinzor | March 27, 2018
Originally published on The Regulatory Review. Reprinted with permission. The spirited conservative attack on regulatory guidance is both puzzling and hypocritical. Admittedly, agencies sometimes issue guidance to avoid the quicksand of informal rulemaking. But the law makes clear that without full-dress procedure, guidance can never replace rules and statutes in enforcement actions. Remedying agency overreach in the rare circumstances when enforcement cases are based primarily on guidance is a straightforward legal matter—defendants have only to tell their problems to a judge. ...

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