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June 19, 2020 by William Buzbee

The Supreme Court's DACA Decision, Environmental Rollbacks, and the Regulatory Rule of Law

On June 18, the U.S. Supreme Court struck down the Trump administration's rescission of the Obama administration's immigration relief program known as Deferred Action for Childhood Arrivals (DACA). In explaining and then defending its DACA rollback, the Trump administration had raised an array of claims that, if accepted, would have undercut numerous regulatory rule of law fundamentals. Instead, the Court strengthened these longstanding requirements. Department of Homeland Security (DHS) v. Regents will become central to battles over the many Trump administration rollbacks and reversals of environmental and other regulations.

In the Trump DACA rescission, the administration relied heavily on an argument it has often deployed to justify regulatory rollbacks. It claimed that the Obama administration DACA policy was so legally flawed that the Trump team had no choice but to reverse the policy. And in this DACA rescission, like many of its environmental regulatory rollbacks, the Trump regulators provided little more than conclusory analysis of reliance interests flowing from the earlier action and similarly skimpy analysis of effects of the new actions. Similarly flawed approaches combining new disavowals of legal authority with skewed and often conclusory analysis of effects are especially evident in climate deregulatory actions and the "waters …

June 18, 2020 by Daniel Farber
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Originally published on Legal Planet. Reprinted with permission.

On June 16, the D.C. Circuit Court of Appeals decided two cases that add to the legal difficulties the Trump EPA will face in court. The difficulties relate to two proposed EPA rules that attempt to hamstring future efforts to impose tighter restrictions on pollution. Both EPA rules rely on vague, general grants of rulemaking authority from Congress. That just became more tenuous.

One of the EPA proposals is the so-called "science transparency rule," which is perversely designed to limit EPA's future ability to utilize well-regarded scientific studies. The other proposal will reduce the agency's flexibility in conducting cost-benefit analysis of future regulations.

In attempting to find legal authority for these rules, EPA has looked to general grants of rulemaking authority. One such law is the Federal Housekeeping Act. That law (which may not actually apply to …

April 30, 2020 by Robert Verchick
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No one really expected FEMA’s leadership of the coronavirus response to be inspiring or even, to put it bluntly, moderately competent. Still, I’ve been puzzled by several reports from state leaders and others that federal authorities have been confiscating purchased medical supplies without explanation or, at least in one case, compensation.

I don’t mean situations where a federal agency outbids someone or orders a vendor to sell to the federal government instead. That happens, too, and the practice is controversial. I’m talking about instances in which federal officials show up unannounced at a warehouse or a port and physically seize crates of medical gear that had been on their way to some needy hospital or test center that had paid or agreed to pay for them. The agent flashes a badge, the goods are trucked out, and no one knows where they go …

April 8, 2020 by David Driesen
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Last week, Hungarian President Viktor Orbán used the coronavirus as an excuse to secure emergency legislation giving him permanent dictatorial powers. President Trump has long admired Orbán and emulated the democracy-undermining strategies that brought Hungary to this point — demonizing opponents; seeking bogus corruption investigations against opposition politicians; using vicious rhetoric, economic pressures, and licensing threats to undermine independent media; and whipping up hatred of immigrants.

President Trump also has copied Orbán in destroying the rule of law and honest government by subjugating the executive branch of government to his will. He has made it clear to every government employee that standing up for the law or truth in opposition to Trump triggers dismissal. For example, he's conducted a campaign of retaliation against executive branch employees who dared testify truthfully to his corruption during the impeachment process, and just last week, fired the intelligence community's inspector general who …

April 3, 2020 by Joseph Tomain
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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:

  1. Regarding the precautionary principle, we should recognize there are two dimensions to the approach. First, moving slowly and watchfully can save lives. We cannot rush to put dangerous and ineffective drugs and other medical supplies on the market …

April 2, 2020 by Joseph Tomain
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In this time of pandemic, we are learning about our government in real time – its strengths and weaknesses; the variety of its responses; and about our relationship, as citizens, to those we have elected to serve us. Most importantly and most immediately, we have learned the necessity of having a competent, expert regulatory structure largely immune from partisan politics even in these times of concern, anxiety, and confusion.

One of life’s lessons that most of us have learned, most likely from our mothers, is that it is better to be safe than sorry. That bit of folk wisdom has been embedded in environmental law for about three decades, where it is known as the precautionary principle. Briefly, that principle can be explained this way: “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for …

March 16, 2020 by Karen Sokol
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"This report is a catalogue of weather in 2019 made more extreme by climate change, and the human misery that went with it." That is the statement of Brian Hoskins, chair of Imperial College in London's Grantham Institute for Climate Change, about the recently released State of the Climate in 2019 by the World Meteorological Organization (WMO). Like the Intergovernmental Panel on Climate Change (IPCC), the WMO compiles information from scientists all over the world that has been a key driver of international climate law and policymaking. One of the IPCC's reports was similarly dire to that of the WMO's, but not without hope.

Although anthropogenic greenhouse gas emissions have disrupted the planet's climate system in ways that have already caused and will continue to cause massive harms all over the world, the IPCC warned, we still have time to prevent a level of disruption that …

Oct. 10, 2019 by James Goodwin
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Last week, President Trump unleashed the latest volley in his administration's efforts to bring about the "deconstruction of the administrative state" with the signing of two new executive orders relating to agency issuance and use of "guidance documents." The first purports to ensure "improved agency guidance," while the second claims to promote "transparency and fairness" in the use of guidance for enforcement actions. The bottom line for the orders is that, with a few potentially big exceptions, they are unlikely to have much practical impact. Instead, this is mostly a messaging exercise by the Trump administration aimed at advancing the broader conservative campaign to delegitimize the regulatory system by propagating the tired old myth that regulatory agencies are unaccountable and pose a threat to our society.

Before diving into orders' substance, two housekeeping points need to be addressed. First, what are guidance documents anyway? They …

Oct. 10, 2019 by James Goodwin
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Just when it seemed that President Donald Trump was completely immune to accountability for his various abuses of power, impeachment proceedings against him have quickly picked up steam over the last couple weeks.

Laying aside what happens with Trump, it's significant that it was a whistleblower complaint from a current CIA officer that helped expose the president's misconduct. (Reports that a second whistleblower, another intelligence official, is preparing to step forward have emerged in recent days.)

Therein lies one of the many important civics lessons to be drawn from the bit of history we're witnessing: The process to this point has confirmed the value of a high-quality, independent, and professional federal bureaucracy to the effective functioning of our democracy. For starters, while Trump administration political appointees and members of Congress on both sides of the aisle are likely to dominate the headlines as this drama plays out …

Sept. 16, 2019 by Amy Sinden
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Originally published in The Revelator. Reprinted under Creative Commons license CC BY-NC-ND 3.0.

The Trump EPA last month proposed a new plan to remove oil and gas developers’ responsibility for detecting and fixing methane leaks in their wells, pipelines and storage operations. This proposal to axe the Obama-era methane rule is notable for two reasons. First, it is a huge step backward in the race to stabilize the climate, just at the moment scientists warn we need to move forward with unprecedented speed. Second, it’s the latest in a growing list of Trump rollbacks opposed by the very industries they’re purportedly intended to help.

The Obama EPA put the methane rule in place for good reason: Methane is a powerful driver of climate disruption. While it doesn’t linger in the atmosphere as long as carbon dioxide, for the 10 or 20 years it …

CPR HOMEPAGE
More on CPR's Work & Scholars.
June 19, 2020

The Supreme Court's DACA Decision, Environmental Rollbacks, and the Regulatory Rule of Law

June 18, 2020

D.C. Circuit Restricts 'Housekeeping' Regulations

April 30, 2020

Did FEMA Take Your Mask?

April 8, 2020

Hungarian Democracy Destruction and Public Health: Alternatives to Empowering Trump

April 3, 2020

Precaution and the Pandemic -- Part II

April 2, 2020

Precaution and the Pandemic -- Part I

March 16, 2020

Trump's Bungling of Coronavirus Response Mirrors His Approach to Climate Crisis