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June 19, 2020 by William Buzbee

The Supreme Court's DACA Decision, Environmental Rollbacks, and the Regulatory Rule of Law

On June 18, the U.S. Supreme Court struck down the Trump administration's rescission of the Obama administration's immigration relief program known as Deferred Action for Childhood Arrivals (DACA). In explaining and then defending its DACA rollback, the Trump administration had raised an array of claims that, if accepted, would have undercut numerous regulatory rule of law fundamentals. Instead, the Court strengthened these longstanding requirements. Department of Homeland Security (DHS) v. Regents will become central to battles over the many Trump administration rollbacks and reversals of environmental and other regulations.

In the Trump DACA rescission, the administration relied heavily on an argument it has often deployed to justify regulatory rollbacks. It claimed that the Obama administration DACA policy was so legally flawed that the Trump team had no choice but to reverse the policy. And in this DACA rescission, like many of its environmental regulatory rollbacks, the Trump regulators provided little more than conclusory analysis of reliance interests flowing from the earlier action and similarly skimpy analysis of effects of the new actions. Similarly flawed approaches combining new disavowals of legal authority with skewed and often conclusory analysis of effects are especially evident in climate deregulatory actions and the "waters …

May 28, 2020 by Katlyn Schmitt, Dave Owen
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Sometime soon, EPA is expected to release its final rule limiting state and tribal authority to conduct water quality certifications under section 401 of the Clean Water Act. A water quality certification is the most important tool states have to ensure that any federally permitted project complies with state water quality protections.

States often impose conditions on such projects that are more stringent than federal requirements in order to protect drinking water and local aquatic habitat, among other reasons. The Clean Water Act also empowers states to deny certifications and stop a project from moving forward if it would still violate the state's water quality standards even after conditions are imposed.

The rulemaking was spurred by an executive order from President Trump last year. The order directed the EPA to change the 401 certification process, with an ostensible focus on "the need to promote timely Federal-State cooperation …

May 20, 2020 by Darya Minovi, James Goodwin
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Earlier this week, we submitted a public comment to the Environmental Protection Agency (EPA), criticizing the agency's March 2020 supplemental proposal for its “censored science" rulemaking. This rule, among other things, would require the public release of underlying data for studies considered in regulatory decision-making, and thus might prevent the agency from relying on such seminal public health research as Harvard’s Six Cities study, which have formed the backbone of many of the EPA’s regulations, simply because they rely on confidential data.

First proposed during the brief and tumultuous tenure of former EPA Administrator Scott Pruitt, the rule, officially known by its Orwellian moniker “Strengthening Transparency for Regulatory Science,” has become a key part of the Trump administration’s assault on the agency’s credibility and authority. Indeed, the arrival of this administration has seen the EPA completely abandon its mission of protecting public health …

April 27, 2020 by Katie Tracy
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Tomorrow, April 28, is Workers' Memorial Day, a day the labor movement established to mourn workers killed on the job and to renew the fight for the living. This year, as the coronavirus pandemic grinds on, taking its toll on workers and their families, we’re reminded more than ever of how critical it is to guarantee all workers the right to a safe and healthy workplace.

Even before COVID-19, a typical day in the United States saw 14 workers killed on the job – hardworking people who set out for work, never to return home. In 2018, 5,250 workers – one worker every 100 minutes – died on the job. Black and Latinx workers were hit hardest in 2018, with a 16 percent increase from 2017 in black worker deaths and a 6 percent increase in Latinx worker deaths. As in years past, tens of thousands of additional …

April 21, 2020 by Brian Gumm
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On April 17, CPR Board President Rob Verchick joined EPA enforcement chief Susan Bodine and other panelists for an American Bar Association webinar on environmental protections and enforcement during the COVID-19 pandemic. During the event, Bodine expressed "surprise" that the agency's pandemic enforcement policy was so roundly criticized, but she shouldn't have been caught off guard by those critiques.

As Verchick noted during the discussion, "The problem with [weakening monitoring and pollution reporting requirements] is that fenceline communities have no idea where to look. They have no idea if the facilities in their backyards are…taking a holiday from pollution requirements or not."

Verchick added, "Companies don't know what their competitors are doing, and so now you've got companies who might be thinking, oh, well, my competing facilities, maybe they're taking advantage of this and I must, too, because nobody knows who's taking advantage …

April 17, 2020 by Matthew Freeman
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Every four years, as presidential elections draw near, the political appointees driving the incumbent administration's regulatory agenda put their feet on the gas, working to cover as much ground as they can before their boss's term is up. It makes no difference whether the current White House occupant is running for reelection or heading off into presidential library-land; they all want to get as much done while they control the steering wheel.

The one thing that usually constrains them, particularly first-termers, is the politics of the moment. Candidates for reelection aren't interested in seeing their agencies promulgate rules that will inflame opposition, and retiring presidents worry a lot about their legacy and aren't so eager to tarnish it with firestorm-inducing midnight regulations. That, at least, has been the norm. But as with so many other things about the Trump administration, standard rules don't apply. And so, we're …

April 10, 2020 by Rena Steinzor
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If you were the head of the U.S. Environmental Protection Agency (EPA) as news of the coronavirus pandemic hit, what would you do to implement your mission to protect public health?

The best answer has three parts: first, determine what specific categories of pollution could exacerbate the disease; second, assemble staff experts to develop lists of companies that produce that pollution; and, third, figure out how the federal government could ensure that companies do their best to mitigate emissions.

Rather than take that approach, EPA enforcement chief Susan Bodine issued a memo late last month offering businesses assurance that EPA would overlook certain regulatory violations for the duration of the COVID-19 crisis. Public interest groups, already alarmed by the possibility that regulatory rollbacks at the agency would continue at a relentless pace despite the pandemic, were apoplectic …

April 8, 2020 by Joel Mintz
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Originally published on Expert Forum, a blog of the American Constitution Society. Reprinted with permission.


It has often been observed that natural disasters bring out the best and worst in people. Sadly, with regard to environmental protection, the coronavirus pandemic has brought out the worst in the Trump administration. Using the pandemic as a pretext, Trump's EPA has continued to propose and implement substantial rollbacks in important safeguards to our health and the environment while issuing an unduly lax enforcement policy.

For example, the administration recently issued a final rule rolling back automobile fuel efficiency standards. Its new regulation effectively undoes the federal government's program to limit greenhouse gas emissions. In a severe blow to global efforts to address the climate crisis, the regulation allows motor vehicles driven in the United States to emit almost 1 billion tons more carbon dioxide than would have been permitted under …

March 25, 2020 by Sidney Shapiro, Liz Fisher
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Whatever one's political views, the end goal regarding the coronavirus (COVID-19) is the same – to minimize the number of people dying and suffering from severe disease. As commentators have repeatedly noted, we need genuine expertise for that. Beyond involving scientists and physicians in decision-making, there are three steps in determining what that expertise should look like and how we tap into it most effectively.

First, the experts can inform decision-making, even if uncertainty will remain. While we can all agree on the end point – no one dying – how to get there is not clear, even to the experts. Rigorous expert judgment and a respect for science are therefore required. Expertise is developed not just from professional training, but from experience in using that training over and over, building up a store of experience that makes one a better expert.

Ultimately, however, the choices in uncertain situations are …

Feb. 27, 2020 by David Driesen
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On March 3, the Supreme Court will hear a plea to invent a new rule of constitutional law with the potential to put an end to the republic the Constitution established, if not under President Trump, then under some despotic successor. This rule would end statutory protections for independent government officials resisting a president’s efforts to use his power to demolish political opposition and protect his party’s supporters. Elected strongmen around the world have put rules in place allowing them to fire government officials for political reasons and used them to destroy constitutional democracy and substitute authoritarianism. But these authoritarians never had the audacity to ask unelected judges to write such rules, securing their enactment instead through parliamentary acts or a referendum.

The blessings of liberty in this country and other functioning democracies depend in important ways on something that legal scholars call the “internal …

CPR HOMEPAGE
More on CPR's Work & Scholars.
June 19, 2020

The Supreme Court's DACA Decision, Environmental Rollbacks, and the Regulatory Rule of Law

May 28, 2020

The Whittling Away of State Clean Water Act Authority

May 20, 2020

CPR Urges EPA to Abandon Unjustified and Harmful Censored Science Rulemaking

April 27, 2020

Workers Memorial Day 2020

April 21, 2020

CPR's Verchick Notes Weakening Environmental Enforcement during Pandemic Endangers Fenceline Communities

April 17, 2020

Goodwin: Censored Science Rule Lacks Legal Basis

April 10, 2020

The Pandemic and Industry Opportunism