Originally published on Legal Planet. Reprinted with permission.
The White House just released its proposed revisions to the rules about environmental impact statements. The White House Council on Environmental Quality (CEQ) simply does not have the kind of power that it is trying to arrogate to itself. Its proposal is marked by hubris about the government's ability to control how the courts apply the law.
That hubris is evident in the proposal's effort to tell courts when lawsuits can be brought and what kind of remedies they can provide. For instance, it states that issuance or refusal to issue an impact statement does not trigger the right to go to court, that no claim can ever be raised in court unless it was first raised by the agency, and that lawsuits must be always be brought quickly. Some of these might be right, some might not be, but all of them are up to the courts – not the White House – to decide.
The proposal also contains a discussion of how much deference it should receive from the courts, suggesting that it should receive Chevron deference. As I explained previously, this seems to be flatly wrong:
Congress never gave CEQ authority to issue binding regulations or to do anything else except issue advice. That means that CEQ's rules are not entitled to what courts call "Chevron deference," which would require courts to accept the CEQ position if it's reasonable. Instead, CEQ's rules can get only Skidmore deference. That means that courts should give a CEQ rule weight based on the "merit of its writer's thoroughness, logic, and expertness, its fit with prior interpretations, and any other sources of weight." This seems consistent with the Supreme Court's more specific statement, issued a decade before the Court clarified standards of deference, that an amended CEQ regulation is entitled to "substantial deference" if it there is a "well considered basis for the change."
Thus, it is up to the courts to decide whether the White House's arguments for changing the interpretation of the law are persuasive. Apparently, the White House thinks that it, not the courts, has the power to decide what the National Environmental Policy Act (NEPA) means and how courts should enforce it. If so, it's overestimating its authority badly.
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Daniel Farber | January 10, 2020
The White House just released its proposed revisions to the rules about environmental impact statements. The White House Council on Environmental Quality (CEQ) simply does not have the kind of power that it is trying to arrogate to itself. Its proposal is marked by hubris about the government's ability to control how the courts apply the law.
Daniel Farber | January 6, 2020
Australia is remarkably exposed to climate change and remarkably unwilling to do much about it. Conditions keep getting worse. Yet climate policy in Australia has been treading water or backpedaling for years.
James Goodwin | December 30, 2019
Here, in no particular order, are ten stories I will be following over the next year that could determine whether we will still have a regulatory system that is strong enough to promote fairness and accountability by preventing corporations from shifting the harmful effects of their activities onto innocent members of the public:
Daniel Farber | December 23, 2019
Like many humans, the Twenty-First Century’s teenage years were stormy.
James Goodwin | December 20, 2019
For many of us, the best way to characterize the past year in three words would be “too much news.” That sentiment certainly applies to the wonky backwater of the regulatory policy world. Today, that world looks much different than it did even just a year ago, and with still more rapid changes afoot, the cloud of uncertainty that now looms ominously over it doesn’t appear to be dissipating anytime soon. Here, in no particular order, are 10 of the biggest developments from the past year that have contributed to this disquieting state of affairs.
Dave Owen | December 18, 2019
This morning E&E News reported that researchers from the Netherlands and Environmental Defense had quantified a massive natural gas leak at an Exxon-subsidiary-owned well in Ohio. According to the study, the well leaked around 60,000 tons of methane. That made me wonder: what might the carbon tax bill for a leak like that be? The answer, of course, is $0.
James Goodwin | December 17, 2019
Last week, my CPR colleagues and I were honored to be joined by dozens of fellow advocates and member of the press for a webinar that explored the recent CPR report, Regulation as Social Justice: A Crowdsourced Blueprint for Building a Progressive Regulatory System. Drawing on the ideas of more than 60 progressive advocates, this report provides a comprehensive, action-oriented agenda for building a progressive regulatory system. The webinar provided us with an opportunity to continue exploring these ideas, including the unique potential of the regulatory system as an institutional means for promoting a more just and equitable society.
Daniel Farber | December 9, 2019
Originally published on Legal Planet. Reprinted with permission. Despite the efforts of the Trump administration, renewable energy has continued to thrive. Key states are imposing rigorous deadlines for reducing power generation from fossil fuels. Economic trends are also supporting renewables. In the first half of 2019, Texas produced more power from renewables than coal. Texas may […]
Daniel Farber | November 25, 2019
Originally published on Legal Planet. Reprinted with permission. The idea of low-hanging fruit is ubiquitous in environmental policy – sometimes in the form of a simple metaphor, other times expressed in more sophisticated terms as an assumption of rising marginal costs of pollution reduction. It's an arresting metaphor, and one that can often be illuminating. But […]