By Fixing Congress, the Planned H.R. 1 Could Strengthen Public Protections, Too

by James Goodwin | December 13, 2018

Not long after their party regained control of the lower chamber in the midterm elections, House Democratic leaders unveiled their signature legislative action for the next Congress – a package of reform measures aimed at tackling some of the worst ethics abuses involving the Trump administration's top officials and members of Congress. Symbolically assigned the designation of H.R. 1 to underscore its status as the top legislative priority, the bill would do more than just restore the integrity of our key democratic institutions; it could also serve as a crucial first step toward strengthening our system of regulatory safeguards.

Though the actual language of H.R. 1 has not been released, the bill is expected to consist of three sections. First, it would introduce a number of ethics reforms aimed at high-ranking executive branch officials and members of Congress, including requiring presidential candidates to disclose their taxes and banning lawmakers from serving on for-profit corporate boards. Second, it would bring much-needed changes to campaign finance to limit the influence of corporate money. The most notable provision would seek to amplify the impact of small donations to candidates by using public funds to match them six to one. Third, the bill would seek to increase public access to the voting booth by, among other things, limiting abusive state voter ID requirements and establishing automatic registration for most of the voting-age public.

Taken together, these provisions could fundamentally recalibrate ...

The New WOTUS Proposed Rule and the Myths of Clean Water Act Federalism

by Dave Owen | December 11, 2018
Originally published on Environmental Law Prof Blog. This morning, the U.S. Army Corps of Engineers and EPA released a proposed new rule that would change the agencies' shared definition of "waters of the United States." That phrase defines the geographic scope of federal jurisdiction under the Clean Water Act.  The proposed rule would narrow the scope of federal jurisdiction, primarily in two ways.  First, it would eliminate jurisdiction for "ephemeral" streams – that is, streams where water flows only during ...

Two Years and Counting: Looking Forward

by Daniel Farber | December 10, 2018
Cross-posted from Legal Planet. In terms of regulatory policy, the second half of Trump's term is shaping up to look a lot like Obama's final two years in office. Congress won't be doing much to advance Trump's environment and energy agenda, as was the case with Obama. So, like Obama, Trump's focus will be on administrative action, particularly regulatory initiatives (or deregulatory ones, in Trump's case). The big question is how these efforts will fare in court. I want to ...

Two Years and Counting: A Historical Perspective

by Daniel Farber | December 06, 2018
Cross-posted from Legal Planet. This is the second of three posts assessing the first two years of the Trump administration. You can read the first post here. We all seem to be subscribed to the "All Trump News, All the Time" newsfeed. It may be helpful to step back a bit and compare Trump with his last Republican predecessor, George W. Bush. How do the two stack up? Bush and Trump were very different in character and style, but their ...

Two Years and Counting: Trump at Mid-Term

by Daniel Farber | December 03, 2018
Cross-posted from Legal Planet. In September 2017 – that seems so long ago! – Eric Biber and I released a report assessing the state of play in environmental issues 200 days into the Trump administration, based on an earlier series of blog posts. As we end Trump's second year, it's time to bring that assessment up to date. This is the first of three posts examining what Trump has done (and hasn't done) in terms of environment and energy. For ...

Opinion Analysis: Frogs and Humans Live to Fight Another Day

by Lisa Heinzerling | November 30, 2018
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). In a mixed-bag ruling, a unanimous Supreme Court returned Weyerhaeuser Co. v. U.S. Fish and Wildlife Service to the U.S. Court of Appeals for the 5th Circuit to decide several questions not answered on the first go-round. Chief Justice John Roberts’ opinion for the court appears calculated to decide just enough to justify shipping the case back to the lower court. ...

Federalism 'Collisions' in Energy Policy

by Alexandra Klass | November 20, 2018
Originally published in The Regulatory Review. Reprinted with permission. Like many areas of law, energy policy in the United States is both national and local. The boundary lines delineating federal and state authority are not always clear, leading to tension and disagreement between federal and state authorities. When tensions get too high, Congress can, and often has, stepped in to override state control in order to promote national interests. But when Congress faces partisan gridlock, an increasing number of disputes are ...

Does the President Really Matter to U.S. Participation in International Law? A View from the Perspective of Oceans Law

by Robin Kundis Craig | November 13, 2018
This post is part of a series of essays from the Environmental Law Collaborative on the theme "Environmental Law. Disrupted." It was originally published on Environmental Law Prof Blog. How much do presidents really matter to the United States' participation in international environmental law? Fairly obviously, presidential turnovers in the United States are absolutely critical to how the United States conducts its international relations. President George W. Bush's pursuit of Middle Eastern terrorists in the wake of 9/11, including wars ...

Act Two: Answering the Clear Mandate for Vigorous Oversight

by Matt Shudtz | November 08, 2018
For two years, President Trump has attempted to steer federal policy in ways that undercut core American values. His vision of government – to the extent one can divine a coherent vision – lacks compassion, fairness, a commitment to equal voice and opportunity, and concern for the long-term threats that families and communities cannot address on their own. Instead, the president has embarked on a campaign to remake the core institutions of our democracy in a new, authoritarian mold. And ...

Warren's Bill Presents Progressive Vision for Rulemaking Reform

by James Goodwin | November 08, 2018
Originally published in The Regulatory Review. Reprinted with permission. By even cost-benefit analysis — the most biased metric — regulations are improving America, producing benefits that exceed costs by a ratio of as much as 12-to-1, according to the most recent figures from the Trump Administration. Of course, those numbers barely scratch the surface of what regulations actually "do." Thanks in part to the Clean Air Act, for example, the median concentration of lead in the blood of children between one ...

Argument Analysis: Yukon-Charley Continues to Commandeer Gray Cells

by Sandra Zellmer | November 06, 2018
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). Alaska hunter John Sturgeon is asking the Supreme Court to slam the door on the National Park Service's ability to apply its nationwide hovercraft ban to the Nation River within the Yukon-Charley Rivers National Preserve. Sturgeon's attorney, Matthew Findley, told the justices during oral argument yesterday that the Alaska National Interest Lands Conservation Act prevents the Park Service — but not ...

Argument Analysis: Justices Express Skepticism over Using Legislative Motive in Pre-emption Analysis

by Emily Hammond | November 06, 2018
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 heard oral argument yesterday morning in Virginia Uranium Inc. v. Warren, which concerns the largest uranium deposit in the United States, located in south-central Virginia. The petitioners are owners of the deposit who wish to mine uranium, and they are challenging a 1983 statute by which the Virginia General Assembly imposed a moratorium on uranium mining. Although all ...

For Parents of Rape Survivors, OIRA's 'Open Door' to Nowhere

by James Goodwin | November 06, 2018
The meeting logs for the White House Office of Information and Regulatory Affairs (OIRA) – the small but powerful bureau that oversees federal rulemaking efforts on behalf of the president – have looked a little different in recent weeks. As usual, they are graced by high-priced corporate lobbyists and attorneys from white-shoe law firms, along with a smattering of activists from public interest organizations. But also signing in have been nearly a dozen ordinary Americans, representing only themselves, and they've ...

Argument Preview: Can a Hovercraft Navigate the Shoals of Yukon-Charley?

by Sandra Zellmer | October 31, 2018
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US). Click here to read Professor Zellmer's follow-up analysis of the oral arguments in this case. “Alaska is different.” So said Chief Justice John Roberts when the U.S. Supreme Court last took up this case two years ago in Sturgeon v. Frost (Sturgeon I). When the court hears a second oral argument in Sturgeon v. Frost (Sturgeon II) next Monday, it will once ...

OSHA's Fall Regulatory Agenda: Worker Protections Not a Priority

by Katie Tracy | October 22, 2018
The Trump administration has few plans to protect workers from emerging workplace health and safety hazards, according to the regulatory agenda released by the White House on October 16. This is nothing new for this administration, which has consistently neglected to take up worker protections, instead focusing the Occupational Safety and Health Administration's (OSHA's) resources on delaying and rolling back existing safeguards.  Among the rules in OSHA's crosshairs, the agency plans to revoke a requirement for employers with 250 or ...

Trump's Fall Anti-Safeguards Agenda: No Country for Young Children

by James Goodwin | October 17, 2018
The Trump administration's Fall 2018 regulatory agenda dropped late last night, and as with previous iterations of this preview of what's to come on the regulatory front, it is chock full of numbers – at least the kinds of numbers partisan ideologues and regulated industries care about. But what these numbers don't reveal are the kinds of things a decent society cares about. Basic things like how well we are protecting the health and welfare of children, for example. Already, ...

Justice Delayed: Mercedes-Benz's Diesel Pollution Remains Unprosecuted

by Joel Mintz | October 16, 2018
To serve the cause of justice, law enforcement must be prompt, even-handed, and appropriate to the circumstances of individual cases. In their handling of an important recent pollution case, however, the enforcement activities of the Environmental Protection Agency (EPA) and the U.S. Department of Justice (DOJ) have been none of those things. The case involves the alleged use by Mercedes-Benz of software "defeat devices" in its diesel cars to override pollution control devices. There is considerable evidence that Mercedes' misconduct was ...

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, ...

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.

Recommended Resources:
Regulatory Policy
Assault on Our Safeguards

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