July 9, 2019 by Robert Glicksman

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

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 enshrined in the Constitution. Finally, imagine a jurisprudence in which judges are committed to fashioning (or refashioning) administrative law doctrine to shackle the authority of agencies to which Congress has delegated regulatory authority at every opportunity. That is the world to which some members of the Supreme Court appear to aspire.1

In the waning days of the Supreme Court’s 2018–2019 term, a four-Justice plurality in Gundy v. United States2 concluded that a provision of the Sex Offender Registration and Notification Act (“SORNA”) authorizing the Attorney General to specify the applicability of the Act’s registration requirements and to prescribe rules for registration did not amount to an unconstitutional delegation of legislative power. Three other members of …

April 11, 2019 by Alejandro Camacho, Robert Glicksman

Originally published by The Conversation.

The Trump administration's push to boost fossil fuel extraction has received a major setback. On March 29, Judge Sharon Gleason of the U.S. District Court for Alaska ruled invalid Trump's order lifting a ban on oil and gas drilling in much of the the Arctic Ocean and along parts of the North Atlantic coast. Gleason held that the relevant law – the 1953 Outer Continental Shelf Lands Act – authorizes presidents to withdraw offshore lands from use for energy development, but not to reverse such decisions by past administrations.

If this ruling is upheld on appeal, it would bolster lawsuits contesting another controversial action by President Trump: Removing some 2 million acres from the Bears Ears and Grand Staircase-Escalante national monuments in Utah, which were created by Presidents Obama and Clinton respectively under the Antiquities Act of 1906.

As scholars of environmental and …

July 19, 2018 by Robert Glicksman

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 his lieutenants pulled the plug, presumably because they didn't want to have to face its likely findings. They told investigators it was "because they did not believe it would produce any new information and felt costs would exceed the benefits."

The Trump administration's insistence on suppressing scientific evidence of health risks inconvenient to extractive industries is at once shocking and unsurprising …

July 5, 2017 by Robert Glicksman

Originally published by the George Washington Law Review

How should a court assessing a regulatory takings claim define the "property" allegedly taken to assess the degree of the economic impact the regulation has on it? That question has plagued the Supreme Court for nearly a century, with different and conflicting answers emerging, sometimes in relatively rapid succession. In Murr v. Wisconsin,1 the Court has provided its most comprehensive answer to the so-called "denominator" question so far, although even the analytical framework the Court provides leaves ample room for refinement in future cases.

Not until 1922 did the Supreme Court clearly establish that the Fifth Amendment's prohibition on the taking of property without just compensation (which applies to the states through the Fourteenth Amendment) applies to regulations as well as physical intrusions and compelled transfers of title. The case in which it did so provided its …

May 1, 2017 by Robert Glicksman

Donald Trump's antagonism toward environmental and natural resource protections seems to know no bounds, legal or otherwise. Among his latest targets are our national monuments, which include some of the most beautiful and historically, scientifically, culturally, and ecologically important tracts of federally owned lands.

During the reign of destruction the president has unleashed in his first 100 days in office, his commitment to fossil fuel resource extraction and development regardless of the impact on our nation's natural resource heritage has become clear. Trump signed a bill repealing the Interior Department's regulations restricting mountaintop removal mining practices that impair water quality and create gaping landscape wounds. He blocked long overdue revisions to the Bureau of Land Management's land use planning rules that afforded greater importance to the protection of ecological integrity and required the agency to consider the impacts of climate change on public lands. He revoked the …

March 2, 2017 by Robert Glicksman

In his first speech upon assuming his duties as EPA Administrator, Scott Pruitt informed the agency's employees that "regulators exist to give certainty to those that they regulate." No, Mr. Pruitt, they do not. Regulators and the regulations they are responsible for adopting and enforcing exist to protect the public interest. In particular, they exist to correct market failures, such as the refusal of polluting industries to internalize the costs of the harm they do to public health and the environment. 

Of course, well-constructed regulations will also create certainty, and regulated entities typically prefer such certainty so they are able to understand their responsibilities and plan for compliance. Sometimes, they are even willing to support tougher regulations (especially if there is only one set to worry about) instead of having to accommodate multiple sets of rules. 

Regulations can even benefit the regulated community in many ways …

Feb. 28, 2017 by Robert Glicksman

Imagine you come across a colleague sitting at his desk amid piles of yellowed papers. When you ask what he is working on, he says it's his annual family budget. "What's with all the old papers?" you might ask. "Oh," he replies, "I always work my new budget off my receipts and bills from 1983, the year we married. Some of them are getting pretty hard to read." "Don't you keep updated records?" you might ask. "And haven't your family finances changed significantly over the last 34 years? I know one of your kids is going to college this fall. You've bought a new house, and you and your wife have switched jobs since then." "Well, yes," your colleague says, "but 1983 is the baseline for us." 

No reasonable person would plan a budget this way. Yet it is exactly the approach …

Jan. 19, 2017 by Robert Glicksman

Rep. Ryan Zinke, a congressman from Montana and Donald Trump's pick for the next Secretary of the Interior, said some encouraging things in his Senate hearing on January 18. First, he acknowledged that the climate is changing and that "man has had an influence," disavowing Trump's notorious statement that climate change is a hoax. Second, he stated in strong terms his opposition to divestiture of the lands and resources owned by the federal government, declaring that "I am absolutely against transfer and sale of public lands. I can't be more clear." Third, he reiterated his support for continuing congressional financing of the Land and Water Conservation Fund, which has enabled federal, state, and local governments to acquire millions of acres of land for recreational purposes since its creation in 1965. 

Each of these positive sentiments comes with significant caveats attached to them, however. Let …

June 28, 2016 by Robert Glicksman

The most important lessons can be the hardest to learn. Sometimes they even take a crisis. We can hope that the sorry saga of Flint, Michigan's lead-poisoned water will be such a teachable moment for at least some of the anti-government crowd, finally driving home the point that government has a vital role in protecting health and safety, and that it can only play it if it takes the responsibility seriously and is provided the wherewithal to do its job properly. 

President Barack Obama has often been a champion of active government of the sort that was missing in action in Flint. History will surely regard him that way, with health care reform, climate change regulation, the auto industry bailout, the 2009 stimulus bill, and Dodd-Frank on the list of examples. But as is so often the case, a closer look tells a more conflicted tale …

June 10, 2016 by Robert Glicksman

Originally published by the George Washington Law Review

The Supreme Court held in U.S. Army Corps of Engineers v. Hawkes Co.1 that a determination by the United States Army Corps of Engineers ("Corps") that the owners of land used for peat mining were obliged to apply to the Corps for a permit under the Clean Water Act ("CWA")2 before dredging or filling the land was a judicially reviewable final agency action. Although this conclusion seems unremarkable, the case potentially packs a more significant punch from the perspective of administrative and, especially, environmental law. Some background on the history of the Court's involvement with the relevant CWA permit program helps to understand why.

The Supreme Court has had a contentious relationship with the CWA, and in particular with its dredge and fill (or section 404) permit program since the dawn of the 21st …

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