CPR Archive for Rena Steinzor

The Major Rules Doctrine -- A 'Judge-Empowering Proposition'

by Rena Steinzor | October 11, 2018

This post was originally published as part of a symposium on ACSblog, the blog of the American Constitution Society. Reprinted with permission.

Now that they have a fifth vote, conservative justices will march to the front lines in the intensifying war on regulation. What will their strategy be? Two tactics are likely, one long-standing and one relatively new. Both have the advantage of avoiding the outright repudiation of Chevron v. NRDC, 467 U.S. 837 (1984), although, as a practical matter, the outcome will be the same.

The first is to pull most cases into Step One of Chevron, granting unto judges the exclusive authority to say what regulatory statutes mean when they use faux plain meaning words like (in)appropriate, (un)acceptable, and (in or un)feasible. As construed in multiple lower course opinions applying Chevron, such terms signify congressional intent that agencies gap-fill, making science-based choice that Congress did not resolve.

The second is the so-called "major rules doctrine," which would allow conservatives to substitute their policy preferences in cases they decide are too important to be left to the civil service and the president. In theory, application of this new approach begins by sorting regulations into two categories — routine rules, which would be submitted to a Chevron analysis, and major rules that will have great consequence for the economy. A rule identified as inexpensive under traditional cost-benefit analysis should not qualify, although the doctrine is so elastic that ...

The Hill Op-Ed: Brett Kavanaugh's Opportunistic Corner Cutting

by Rena Steinzor | August 30, 2018
This op-ed originally ran in The Hill. Tens of thousands of thoughtful — and not so thoughtful — words have been written about Supreme Court nominee Brett Kavanaugh’s substantive positions on issues the court will face. At least one question has not been addressed, however: Is Judge Brett Kavanaugh so ideological about certain topics that he veers toward sloppiness? As a law professor, I spend a lot of time around first-year law students, introducing them to the professional standards that ...

Baltimore Sun Op-Ed: Baltimore Employer of Smothered Worker Should Be Held Criminally Accountable

by Rena Steinzor | June 12, 2018
This op-ed originally ran in the Baltimore Sun. On June 5, a 19-year-old construction worker named Kyle Hancock was smothered to death when a deep trench where he was working collapsed. R.F. Warder Inc., the construction company that hired Hancock to help fix a leaking sewage pipe, and the bosses it employed are responsible for his death, plain and simple. Their failure to shore the trench to prevent a collapse was grossly negligent, readily foreseeable, eminently preventable and, therefore, criminal. The ...

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. ...

The Hill Op-ed: Justice Dept's Enforcement Policies Make Change for the Worse

by Rena Steinzor | February 22, 2018
This op-ed originally ran in The Hill. Attorney General Jeff Sessions has wasted little time portraying himself as the prosecutor-in-chief of street — as opposed to white collar — crime, rejecting this month even a broadly bipartisan effort to reduce sentences for nonviolent crime supported by a coalition that spans the Koch brothers and the NAACP. Civil enforcement has also fallen off, as documented in investigative reporting by The New York Times and others. Both trends will almost certainly continue given ...

Bay Journal Op-Ed: Bay Jurisdictions' No-action Climate Policy Puts Restoration in Peril

by Rena Steinzor | December 14, 2017
This op-ed originally ran in the Bay Journal. Reprinted with permission. Despite research demonstrating that climate change is adding millions of pounds of nutrient pollution to the Chesapeake Bay, Maryland Gov. Larry Hogan and his Bay states colleagues appear to be taking a page from the Trump playbook: Ignore this inconvenient truth. Doubts about whether climate change is caused by humans and threatens the planet are rapidly going the way of urban legend. Just ask any resident of Puerto Rico, the ...

The Trump Deregulatory Agenda: Health, Safety, Environmental, and Consumer Protection Rules in the Crosshairs

by Rena Steinzor | August 02, 2017
Obama's Fall 2016 Versus Trump's Spring 2017 Unified Agendas On July 20, 2017, the Trump administration announced that it was going to kill hundreds of rules considered by previous administrations to protect public health, worker and consumer safety, the environment, and working people navigating the financial services marketplace. The Trump Spring 2017 "regulatory agenda" was lengthy and complicated. To understand its full implications, you needed to compare it to the last regulatory agenda issued by the Obama administration in the ...

New Analysis Exposes the Trump Administration's Rulemaking Delays

by Rena Steinzor | July 19, 2017
Early in the Trump administration, news about delayed and "disappeared" rules emerged in several media outlets. Many of these delays were driven by a memo issued by Trump White House Chief of Staff Reince Priebus on January 20, 2017, which "froze" the implementation of rules until March 21, 2017, so that a representative of the administration could review them. Freezing rules for a limited amount of time is standard practice for newly inaugurated presidents. But the White House and agency ...

White Collar Crime and the Trump Administration

by Rena Steinzor | April 27, 2017
Cross-posted by permission from the Columbia Blue Sky Blog. The Obama administration had a mixed record on white collar crime. On one hand, it extracted $4 billion and a guilty plea from BP in the wake of the Deepwater Horizon spill. On the other hand, it allowed HSBC, then the fourth largest bank in the world, to sign a deferred prosecution agreement (DPA) over charges of laundering money for a Mexican drug cartel and serving as a banker for illicit ...

Beware Compounded Drugs -- Especially Under Trump's FDA

by Rena Steinzor | December 14, 2016
A burgeoning and little-regulated private industry that specially mixes drugs at so-called compounding pharmacies poses a public-health hazard that the Trump administration is about to make a whole lot worse. An earlier version of this story appeared in The American Prospect.  President-elect Donald Trump has pledged to eliminate 70 to 80 percent of all federal regulations, and the Food and Drug Administration's (FDA) rulebook is near the top of his list. Close Trump adviser Newt Gingrich has denounced the FDA ...

One Step Forward and Two Steps Back on Toxic Chemicals

by Rena Steinzor | May 24, 2016
This post has also been published on The Huffington Post. Within the next few days, Congress is likely to enact the first update of a major environmental statute in many years. Widely hailed as a bipartisan compromise, legislation to amend the Toxic Substances Control Act (TSCA, pronounced like the opera Tosca) was made possible by the steely and relentless determination of the U.S. chemical industry. The deal places burdens on the Environmental Protection Agency (EPA) that will undermine public health ...

We Need to Get Back to Work

by Rena Steinzor | May 13, 2016
Originally published on RegBlog by CPR Member Scholar Rena Steinzor. Rulemaking has slowed to a crawl throughout the executive branch. If an agency does not have a statutory mandate to undertake such a brutal and resource-intensive process, the choice to accomplish its mission through any other means will be tempting. Of course, if the policy issues are controversial, no pathway to their redress—rule, adjudication, guidance, or bully pulpit—will be problem-free. The opposition party made clear, almost as soon as President Barack Obama ...

Steinzor Reacts to Blankenship Sentencing

by Rena Steinzor | April 06, 2016
Today, U.S. District Court Judge Irene Berger sentenced former Massey Energy CEO Don Blankenship for conspiring to violate federal health and safety standards at the Upper Big Branch Mine in West Virginia. Upper Big Branch exploded and killed 29 miners in April 2010. CPR Member Scholar Rena Steinzor, Professor of Law at the University of Maryland Francis King Carey School of Law, issued the following statement: "Although Mr. Blankenship won't spend much time in jail, an outcome determined by a ...

Steinzor Reacts to SCOTUS Chesapeake Bay Case

by Rena Steinzor | February 29, 2016
The Supreme Court today denied certiorari in a case challenging the watershed-wide effort led by the EPA to reduce pollution flowing into the Chesapeake Bay. The Court's action leaves standing a lower court ruling upholding the effort. CPR Member Scholar Rena Steinzor, Professor of Law at the University of Maryland Francis King Carey School of Law, issued the following reaction: "The Supreme Court's decision is a milestone victory for the restoration of the Chesapeake Bay and the thousands of local waters in the Bay watershed. Today's ...

Blankenship Convicted in Massey Coal Mine Disaster

by Rena Steinzor | December 03, 2015
Justice was done today by a hard-working jury in West Virginia that convicted Don Blankenship of conspiracy to obstruct federal mine safety rules.  This conspiracy was the primary cause of an enormous explosion that killed 29 men in the worst mine disaster in 40 years.  Although the jury was not presented with the question of whether Blankenship was directly responsible for the explosion, it did decide that he played Russian roulette with miners’ lives.  By underfunding efforts to comply with and harassing ...

Steinzor Reacts to GM Settlement Deal

by Rena Steinzor | September 17, 2015
CPR Member Scholar Rena Steinzor reacted to today's announcement of a settlement between General Motors and the Justice Department over charges stemming from the company's failure to disclose a deadly ignition defect it millions of its cars. Steinzor said: This settlement is shamefully weak. GM and its executives knew for years that they had a big problem with the ignition switch, which caused cars to stall at high speeds, depriving drivers of power steering, brakes, and airbags.  The company’s dysfunctional ...

Kill a Worker? You're Not a Criminal. Steal a Worker's Pay? You Are One.

by Rena Steinzor | July 16, 2015
Labor Secretary Tom Perez came into office pledging to create good jobs and take on the economic injustice that oppresses blue-collar workers, from raising the minimum wage and restoring unpaid overtime to combatting wage theft. Luckily, the head of his Wage and Hour Division, David Weil, the author of a revelatory report on how to make the most of strategic enforcement, has moved out quite aggressively.  It’s a pity that other, even more serious crimes, don’t seem to get the ...

CPR's Steinzor on the Third Circuit Court's Decision to Uphold the Chesapeake Bay's TMDL Program

by Rena Steinzor | July 06, 2015
The Third Circuit’s decision today is a tremendous victory for the elusive goal of restoring the Chesapeake Bay to the point that it is ecologically healthy.  As the Third Circuit made clear, the Farm Bureau’s relentless and self-serving opposition to EPA’s leadership in this area misreads the law.  Strong federal pollution controls are the last hope for the largest estuary in the world and for the millions of people who trek to its shores to enjoy its amazing beauty.  The ...

Also from Rena Steinzor

Rena Steinzor is a Professor of Law at the University of Maryland Francis King Carey School of Law, and a past president of the Center for Progressive Reform. She is the author of Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction.

The Major Rules Doctrine -- A 'Judge-Empowering Proposition'

Steinzor | Oct 11, 2018 | Regulatory Policy

The Hill Op-Ed: Brett Kavanaugh's Opportunistic Corner Cutting

Steinzor | Aug 30, 2018 | Regulatory Policy

The Guidance Racket

Steinzor | Mar 27, 2018 | Regulatory Policy
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