This op-ed was originally published in The Hill, and the full version is available on the paper's website. It was published before Sens. Joe Manchin and Chuck Schumer announced their deal on the Inflation Reduction Act.
The Biden administration’s path forward on climate change — as the widely deployed metaphor goes — has become more difficult with the U.S. Supreme Court’s recent decision in West Virginia vs. Environmental Protection Agency (EPA) and Sen. Joe Manchin’s (D-W.Va.) apparent veto of a reconciliation package that contains climate measures. If the Biden administration is to successfully navigate that path — and it must if we are to avert the worst consequences of the climate crisis — the president will need to abandon the “compass” that his predecessors have relied on for decades to guide their policy agenda: Executive Order 12866: Regulatory Planning and Review.
First issued in 1994, the executive order empowers a small White House bureau called the Office of Information and Regulatory Affairs (OIRA) to review and approve agencies’ biggest or most controversial rules. The order further requires OIRA to evaluate those rules using a methodology called “cost-benefit analysis,” which is highly biased against protective safeguards and provides convenient cover for politicized interference in agency decision-making.
Fortunately, President Joe Biden seemed to recognize early on that Executive Order 12866 presented an unnecessary obstacle to the realization of his administration’s policy goals. On the first day of his administration, Biden also issued a memo on “Modernizing Regulatory Review,” which called for changes that would make regulatory review and analysis supportive of stronger safeguards. The memo also acknowledged the need to depoliticize the review process and make regulatory analysis more attentive to social justice.
But in the 18 months since, the Biden administration has not taken any steps to implement these changes. The recent setbacks to the administration’s climate agenda from the Supreme Court and Manchin should force a rethink on this neglect. Crucially, progressive reforms to the regulatory process would directly answer the core challenges those setbacks present.
In West Virginia vs. EPA, the Supreme Court’s six conservative members invoked the newly minted “major questions doctrine” in striking down an Obama administration-era rule to limit greenhouse gas emissions from fossil-fueled plants. This doctrine holds that if an agency wishes to undertake a novel approach to policymaking that might have significant economic or political implications, then it must be prepared to point to clear and specific legislative authority supporting that action. As such, it would seem to cast a dark shadow over the Biden administration’s use of regulations to address climate change.
Showing 2,821 results
James Goodwin | July 27, 2022
The Biden administration’s path forward on climate change -- as the widely deployed metaphor goes -- has become more difficult with the U.S. Supreme Court’s recent decision in West Virginia vs. Environmental Protection Agency (EPA). If the Biden administration is to successfully navigate that path -- and it must if we are to avert the worst consequences of the climate crisis -- the president will need to abandon the “compass” that his predecessors have relied on for decades to guide their policy agenda: Executive Order 12866: Regulatory Planning and Review.
Thomas McGarity, Wendy Wagner | July 25, 2022
Law professors dream of the day when the U.S. Supreme Court will rely on one of their publications for a proposition that is crucial to the outcome of an important case. What better validation of all the blood, sweat, and tears that were poured into the publication? What an existential high to know that they have finally arrived at the pinnacle. We experienced none of those emotions when reading Chief Justice John Roberts' opinion in West Virginia v. EPA. The citations to our work were both minor and innocuous, so that fact helps allay any sense of accomplishment. But equally significant, the Court's analysis bears little relationship to our own understanding of Section 111(a) of the Clean Air Act.
Grace DuBois | July 20, 2022
Corporations’ widespread use -- and abuse -- of forced arbitration in employment contracts allow them to steal billions of dollars from workers every year with impunity. Employers have unilaterally imposed mandatory arbitration agreements onto 60 million American workers, and the practice is only becoming more widespread. By 2024, 80 percent of nonunion workers will be subject to forced arbitration.
Daniel Farber | July 20, 2022
What government powers would be unlocked by declaring a climate change emergency? One immediate possibility would be to use the same power that former President Trump used to divert military construction funds to other uses -- in this case, perhaps building wind or solar farms or new transmission lines. But what else could President Biden do?
Daniel Farber | July 19, 2022
Based on press reports, it now seems likely that President Joe Biden will soon declare climate change to be a national emergency. Would this be legal? Would it unlock important powers that could be used to fight climate change? My answers are: It would probably be legal, and it would unlock some significant powers. But an emergency declaration is not a magic wand that gives presidents a blank check. It would allow some constructive steps to be taken, but within limits.
Grace DuBois | July 19, 2022
Wage theft is a massive crisis for workers, but federal, state, and local agencies have failed to address the problem. Wage theft occurs in many forms: Paying wages lower than the minimum wage, not paying overtime wages, coercing employees to work "off the clock" before or after shifts, prohibiting workers from taking legally mandated breaks, confiscating tips, and more.
Minor Sinclair | July 15, 2022
Nationally, nonprofit organizations employ about 10 percent of the entire private workforce. That’s 12 million paid workers -- nearly as many as the entire manufacturing field. Many of those employees, with the exception of higher-paid college and hospital workers, earn $4 to $5 per hour less in terms of total compensation than similar workers in private industry. Many factors contribute to the nonprofit wage gap. For some organizations, a reliance on donations or government contracts puts a ceiling on employee compensation. For others, mission-first means serving the cause even if it means sacrificing the financial well-being of the employees tasked with doing the actual work. This is unacceptable -- especially during a time when the nonprofit world is increasingly focused on the importance of aligning mission and human-resource policies. But figuring out how to make that alignment happen is the tricky part.
Alexandra Rogan | July 15, 2022
Without Senator Joe Manchin's (D-WV) support, a key energy bill will fail to move forward in the U.S. Senate. The bill's provisions would have taken needed steps toward limiting the global average temperature change to 1.5 degree Celcius, the goal of the Paris Climate Agreement, and transitioning our nation to a clean energy economy.
Hannah Klaus | July 13, 2022
Duke Energy, a major corporation with near-monopoly control over North Carolina’s electric grid, has outsized influence over the state’s decarbonization plan, which is now under review. The state legislature ordered the utility commission to make a 70 percent reduction in carbon emissions by 2030 and to reach carbon neutrality by 2050. Duke Energy has submitted a plan to the commission to meet those goals, but the plan fails to take affordability and equity into full account. What’s worse: Low-wealth people aren’t required -- or, in many cases, even able -- to participate in the planning process. They’re shut out.