Dec. 10, 2018 by Daniel Farber

Two Years and Counting: Looking Forward

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 discuss three aspects of that question: timing, judicial review of statutory issues, and judicial review of policy analysis.

Timing. The Trump people are keenly aware that some of Obama's most important rules were still in the litigation process when he left office, which has kept those rules hanging in the wind for the two years since Trump took office. They seem desperate to avoid the same fate, so they are rushing to get a tremendous number of rules issued in time for the courts to make definitive rulings before the end of Trump's term. But this strategy has its risks. It increases the chances that the agencies will make analytic mistakes or simply overlook issues, which courts may seize upon …

Dec. 6, 2018 by Daniel Farber

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 regulatory aims were similar. Bush and Trump were both trying to steer the country in the same directions in terms of regulatory policy: increased use of fossil fuels, less environmental regulation. But the Republican Party has been radicalized since Bush's day, and in environmental affairs, the Trump administration reflects that radicalization.

For instance, whereas Bush actually created important ocean national monuments (though it was a bit out …

Dec. 3, 2018 by Daniel Farber

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 this first post, I'll follow the same outline as the 9/17 report but omit a lot of the detail.

Legislation. Eric and I considered substantive legislative changes very unlikely although potentially very damaging. Almost no substantive changes have made it through Congress. The one exception was the provision in the Senate tax bill for opening up ANWR for drilling, which was able to use reconciliation procedures since it …

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