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While President Trump finds “tariff” one of the most beautiful words in the English language, I myself prefer “anti-backsliding.” Back in January, Trump told the U.S. Environmental Protection Agency (EPA) to roll back efficiency standards on everything from light bulbs to shower heads. Some news outlets viewed this as an accomplished task, with headlines like “Trump Rolls Back Energy Standard.” But, as it turned out, not only was it not a done deal, it was also legally impossible. The reason: an anti-backsliding provision.

The U.S. Environmental Protection Agency’s (EPA) efforts to regulate carbon emissions from power plants have had a tortuous history, and we’re about to go through another round, with a rule from a Democratic administration being repealed and replaced by a Trump rule. The last time this happened, the Trump EPA said that its interpretation of the statute required an extraordinarily narrow substitute rule. Because of intervening legal changes, it won’t find it as easy to make that argument this time. In the end, the Trump substitute rule will undoubtedly be weak but not as weak as last time.

If you were looking for data-driven regulatory policy, you’re not going to find it in this administration. On the contrary, President Trump has marginalized economic analysis and wants to bulldoze environmental science. Thus, we are likely to get policies that are bad for the environment without being cost-justified while ignoring policies whose environmental benefits outweigh economic costs.

In recent days, President Donald Trump has said that he won’t provide relief for the Los Angeles fires unless California changes its voting laws and its water regulations. He also suggested that he’d like to abolish FEMA entirely. The first of Trump’s proposals is likely unconstitutional. The second one is both a terrible idea and beyond his legal authority.

A sleeper provision in one of President Donald Trump’s executive orders attempts to revolutionize the way the National Environmental Policy Act (NEPA) operates and cut environmental review to a minimum.

President-elect Donald Trump’s picks for office provide a strong hint of what the next year will look like. In Trump’s first term, government actions were often overturned by the courts. Agencies made basic mistakes: skipping mandatory procedural steps, ignoring important evidence, or failing to address opposing arguments. Many people thought he had learned his lesson and would pick competent, experienced administrators this time. They were mostly wrong.

They say that history never repeats itself, but it often rhymes. As in many sequels, there will be many things we’ve seen before. Much of that consisted of an all-out attack on environmental law. If you hated the original, you won’t enjoy watching the same thing the second time around. But there are a few additions to the cast and some new backdrops on the set. Today, I’m going to talk about some areas of continuity.

When the U.S. Supreme Court overruled Chevron, one effect was to raise a crucial question about how courts should apply the National Environmental Policy Act (NEPA). For decades, courts have deferred to regulations issued by the White House Council on Environmental Quality (CEQ). The basis for that deference was a bit fuzzy, but now it is much fuzzier. 

This is the final installment in our series of posts about the causation issue under NEPA. In our previous post, we laid out NEPA’s purposes and why analogies to tort law can misfire because that area of law has very different purposes. Today, building on our recent working paper, we explain the functional approach to causation that we believe courts should apply.