Originally published on Legal Planet. Reprinted with permission.
The Trump administration's major deregulatory efforts share a common theme. They assiduously avoid having to rely on scientific or economic evidence. Confronting that evidence is time-consuming and difficult, particularly when it often comes out the other way. Instead, the administration has come up with clever strategies to shut out the evidence.
The effort to repeal the Clean Power Plan illustrates some of these strategies. The Obama administration's plan would have cut carbon emissions from power plants along with destructive particulate emissions from those plants. The Trump administration didn't have much of a policy argument against the plan. So instead, it argued that the Clean Air Act just didn't give EPA the power to take sensible measures against climate change. As the old trial lawyer's saying puts it, "If the evidence is against you, argue the law."
The Clean Power Plan repeal also illustrates another strategy: Come up with a rationale for ignoring evidence that you don't like. This strategy wasn't part of the formal justification for repealing the Clean Power Plan. Instead, it was used in the cost-benefit analysis accompanying the formal repeal, where EPA chose to rely on calculations that didn't include key health benefits. EPA's proposed new science policy takes a similar approach. The proposal is that EPA completely ignore scientific studies unless all of the data can be made public, which conveniently eliminates a lot of public health studies involving confidential patient information.
A combined version of the two strategies argues that certain environmental harms must be ignored as legally irrelevant. For example, in reconsidering a regulation limiting mercury emissions from power plants, EPA argues that it is legally required to ignore evidence that the regulation would save thousands of lives. Why? Because those lives will be saved for the wrong reason: Not directly from the reduction in mercury but because cutting mercury automatically cuts other deadly pollutants. Rather than seeing this as "two for the price of one," EPA proposes to close its eyes to the evidence. Another example is the proposal to reform the way that environmental impact statements are done. Based on some tenuous legal arguments, the proposal calls for ignoring serious impacts that happen to be delayed, at a distance, or due to complicated chains of causation. Again, the point is to eliminate consideration of evidence that any policy analyst would consider highly relevant.
This desperate attempt to avoid the evidence might almost suggest that the administration has an ulterior motive. Which of course it does: Promoting activities that harm the environment but enrich industry.
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Daniel Farber | March 26, 2020
The Trump administration's major deregulatory efforts share a common theme. They assiduously avoid having to rely on scientific or economic evidence. Confronting that evidence is time-consuming and difficult, particularly when it often comes out the other way. Instead, the administration has come up with clever strategies to shut out the evidence.
Liz Fisher, Sidney A. Shapiro | March 25, 2020
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.
Darya Minovi | March 24, 2020
As the coronavirus (COVID-19) continues to spread around the globe, the inequalities in American society have come into even sharper relief. People with low incomes who are unable to work from home risk being exposed to the virus at work or losing their jobs altogether. Their children may no longer have access to free or reduced-price meals at school. They are also less likely to have health insurance, receive new drugs, or have access to primary or specialty care, putting them at a greater risk of succumbing to the illness. As with any shock to the system – natural disaster, conflict, and now a pandemic – vulnerable populations are hit hardest and have a harder time bouncing back.
Katie Tracy | March 23, 2020
As the coronavirus (COVID-19) sweeps the planet, it threatens billions of people and all but promises a global economic recession of uncertain magnitude. As I'm sure you are, I’m deeply concerned about what this means for my family, my neighbors, and my broader community.
Katie Tracy | March 23, 2020
In a previous post, Katie Tracy explored five essential elements of an effective response to the coronavirus (COVID-19) pandemic. They included closure of all nonessential businesses, paid sick leave and family medical leave, health and safety standards for infectious diseases, hazard pay, and workers' compensation. Here are five more things we need to protect workers and our economy from the crisis.
K.K. DuVivier | March 19, 2020
Offshore wind holds huge promise as a renewable electricity source. Using existing turbine technologies, the U.S. potential is 2,058,000 megawatts (MW), enough to generate double the electricity demand of the entire United States in 2015. About 80 percent of that electricity demand is along the coasts, so getting the power to the public could prove easier than transmitting it from wind-rich midwestern states. Utilities from eight states up and down the East Coast from Maine to Virginia have committed to procuring 22,500 MW of offshore wind so far, and wind power appeared poised to take off when the Department of the Interior awarded 11 commercial offshore leases in 2016.
James Goodwin | March 19, 2020
Earlier this week, a group of 25 Center for Progressive Reform (CPR) Board Members, Member Scholars, and staff signed a joint letter urging Russell Vought, Acting Director of the White House Office of Management and Budget (OMB), to direct federal agencies to hold open active public comment periods for pending rulemakings amid the COVID-19 pandemic. The letter further urges Vought to extend comment periods for at least 30 days beyond the end of the crisis.
Alexandra Klass | March 18, 2020
Our vast public lands and waters are both a major contributor to the global climate crisis and a potential solution to the problem. The extraction and use of oil and gas resources from public lands and waters produce 20 percent of U.S. greenhouse gas (GHG) emissions. If the public lands were its own nation, it would be the fifth largest global emitter of GHGs. The scale of this problem has been exacerbated by the current administration.
Daniel Farber | March 18, 2020
Now that President Trump has belatedly declared a national emergency, what powers does he have to respond to the coronavirus pandemic? There has been a lot of talk about this on the Internet, some of it off-base. It's important to get the law straight. For instance, there's been talk about whether Trump should impose a national curfew, but I haven't been able to find any legal authority for doing that so far. The legal discussion of this issue is still at an early stage, but here are some of the major sources of power and how they might play out.