Originally published by The Regulatory Review. Reprinted with permission.
Much of the discussion of the Trump administration's failed handling of the COVID-19 pandemic has focused on its delayed, and then insufficiently urgent, response, as well as the President's apparent effort to talk and tweet the virus into submission. All are fair criticisms. But the bungled initial response—or lack of response—was made immeasurably worse by the administration's confused and confusing allocation of authority to perform or supervise tasks essential to reducing the virus's damaging effects. Those mistakes hold important lessons.
The administration's management of the pandemic has been hampered by misallocation of authority along three different but interacting dimensions. First, it has been marred by overlapping authority that has resulted in waste, while failing to capitalize on this overlap's potential to safeguard against shirking and inaction. Second, it has reflected a thoughtless mix of centralized and decentralized authority. Third, it has lacked a fundamentally important tool—the ability to coordinate the efforts of public and private actions to combat the crisis effectively and efficiently.
Almost from the virus's arrival, it was unclear who was supposed to be in charge. Initially, U.S. Department of Health and Human Services (HHS …
With the majority of states beginning to loosen their COVID-19 restrictions, many Americans who've been sheltering in place for the past few weeks are now facing a difficult choice: Go back to workplaces that might not be safe, or risk being fired. They'll face similar choices at grocery stores, pharmacies, home centers, and everywhere else they go where they must rely on the precautions taken by owners, managers, and others for their safety.
Eager to fire up the economy with an election approaching, Senate Majority Leader Mitch McConnell (R-KY) has announced his intention to block a fourth stimulus bill if it does not include a provision extending broad immunity to businesses for any COVID-19 infections they cause workers or customers. If adopted, such immunity from litigation would leave us all at the not-so-tender mercies of the marketplace. Shielded from accountability and stung by lost business, too many …
For decades, "states' rights" has been a rallying cry of the right wing. Most Americans are familiar with the dynamics that required the federalization of civil rights law, both in the 1860s and again in the 1960s, the protection of much of our nation's federal lands, and the national crises that necessitated the federal government to enact national minimum standards to protect public health and the environment. Many of us are also familiar with the right-wing backlash to these movements—indeed, the devolving of baseline environmental standards and public land management to the state and local level has been a keystone of the political right since at least Ronald Reagan's presidency.
But federalism—the division of authority between state and local governments, on one hand, and the federal government on the other—doesn't have to tilt in one (rightward …
Read Part I of this pair of posts on CPRBlog.
The coronavirus has already taught us about the role of citizens and their government. First, we have learned that we have vibrant and reliable state and local governments, many of which actively responded to the pandemic even as the White House misinformed the public and largely sat on its hands for months. Second, science and expertise should not be politicized. Instead, they are necessary factors upon which we rely for information and, when necessary, for guidance about which actions to take and about how we should live our lives in threatening circumstances.
From all of this, three recommendations emerge:
The states have been out in front in dealing with the coronavirus. Apart from President Trump's tardy response to the crisis, there are reasons for this, involving limits on Trump's authority, practicalities, and constitutional rulings.
As I discussed in a previous post, the president's power to deal with an epidemic is mostly derived from statutes. The available statutory powers include deploying federal resources and funding to support the states; controlling the movement of infected individuals across state lines and the U.S. border; and dealing with infections within the government's workforce. [Addendum: The way this was originally stated, it was a bit too narrow. The feds can also quarantine those who are likely to infect people who will cross state lines.]
States have broader powers. Governors, and often mayors, have the power to impose quarantines, close down …
Originally published on The Regulatory Review. Reprinted with permission.
Ever since Ronald Reagan declared government to be the problem rather than the solution, the federal bureaucracy has been the target of criticism from right-leaning think tanks, regulatory skeptics in academia, and politicians of all political persuasions. Lately, members of the federal judiciary have visibly joined this chorus of criticism.
Among the charges leveled against regulation and the agencies responsible for issuing and enforcing rules is the claim that, even assuming the validity of regulatory goals, traditional regulatory approaches too often fail to achieve them or impose unjustified social costs. Others assert that regulatory "intrusions" on the operation of the free market are antithetical to the protection of individual liberty and the economic system on which our nation was built.
We take a different view.
Government regulation serves a critical role in promoting the public interest by, for …
Every day seems to bring more news of the Trump administration's dogged efforts to reduce environmental protections and accelerate climate change with increased carbon emissions. But, as has been true since Trump took office, the picture at the state level is much different. State governments across the country have accelerated their efforts to decarbonize while efforts to save the coal industry have foundered. Here are some of the latest developments.
Earlier this month, Maryland's legislature adopted a 50 percent renewable energy mandate for 2030. The law also doubled the target for obtaining power from offshore wind. Governor Larry Hogan had vetoed an earlier increase in the renewable energy mandate in 2017 but was overridden by the legislature. Hogan, a possible primary challenger to Donald Trump, is still thinking over his next move at this writing.
In mid-April, New Jersey adopted a 50 …
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 resolved in the courts.
Over the past century, Congress has slowly carved out significant swaths of energy policy for federal control: oil and natural gas exports; automobile fuel economy standards; interstate transmission of electricity; permitting approval and eminent domain for interstate natural gas pipelines; and permitting approval for hydropower facilities and nuclear facilities. But much activity remains under state control: approval of interstate and intrastate oil …
In the era of Trump, one bright spot remains what's happening in cities across the nation. Here are some numbers: 402 U.S. mayors have endorsed the Paris Agreement and announced their intention of meeting its goals, while 118 have endorsed the goal of making their cities 100 percent renewable. A bit of quick research provides a sample of what some major cities are already up to:
Atlanta. Atlanta's city council has set ambitious goals: 100 percent renewable energy for city operations by 2025 and for the entire city a decade later.
Chicago. Chicago commissioned climate scientists to report on how climate change would impact the city. The report cites more heat waves and heavier rains and snows. The mayor has announced a plan to power city buildings with 100 percent renewable energy by 2025. The city has adopted an elaborate climate change adaptation plan.
Houston and …
In the early 1970s, Congress passed the Clean Air Act and Clean Water Act on nearly unanimous votes. The overwhelming support for these new laws reflected not only the horrific condition of America’s air, water, and landscape at the time, but also an appreciation of the collective action problem states faced, necessitating federal action.
The major environmental laws that passed in the following years were predicated on the need to set a federal floor for environmental standards in order to provide all Americans with a basic right to clean air, safe water, and a healthy environment, no matter the state they lived in. The laws also represented an understanding that states were no more likely to act alone in investing in new regulatory programs than a business would be to self-regulate without corresponding action from its competitors.
The clear consensus, then, was that the federal government …