Law Commons^™

Delegating Climate Authorities, Mark P. Nevitt

Faculty Articles

The science is clear: the United States and the world must take dramatic action to address climate change or face irreversible, catastrophic planetary harm. Within the U.S.—the world’s largest historic emitter of greenhouse gas emissions—this will require passing new legislation or turning to existing statutes and authorities to address the climate crisis. Doing so implicates existing and prospective delegations of legislative authority to a large swath of administrative agencies. Yet congressional climate decision-making delegations to any executive branch agency must not dismiss the newly resurgent nondelegation doctrine. Described by some scholars as the “most dangerous idea in American law,” the …

Agency Genesis And The Energy Transition, Sharon B. Jacobs

Publications

Commentators and policymakers frequently propose new government agencies in response to novel or intractable problems. New agencies can refocus public attention on the problems they regulate. They can attract new talent and bypass calcified or captured channels. But they are also costly, and there is no guarantee that they will be more successful than their predecessors.

This Article examines agency genesis at the state level. In the process, it expands recent thinking about the administrative separation of powers to the states. At the federal level, setting up agency rivalries within the executive branch can be an effective tool for mitigating …

#Betterrules: The Appropriate Use Of Social Media In Rulemaking, Stephen M. Johnson

Articles

In December 2015, the Government Accountability Office (GAO) concluded that the Environmental Protection Agency’s (EPA’s) use of various social media tools in a rulemaking under the Clean Water Act violated prohibitions in federal appropriations laws against publicity, propaganda, and lobbying. Although academics previously explored whether the use of technology in rulemaking might violate the Administrative Procedures Act (APA), the Paperwork Reduction Act, or the Federal Advisory Committee Act, none predicted that one of the first firestorms surrounding the use of social media in rulemaking would arise out of federal appropriations laws. ...

As the Administrative Conference of the United States …

Foreword: Making Sense Of Information For Environmental Protection, James Salzman, Douglas A. Kysar

Faculty Scholarship

Despite the ubiquity of information, no one has proposed calling the present era the Knowledge Age. Knowledge depends not only on access to reliable information, but also on sound judgment regarding which information to access and how to situate that information in relation to the values and purposes that comprise the individual's or the social group's larger projects. This is certainly the case for wise and effective environmental governance. A regulator needs accurate information to understand the nature of a problem and the consequences of potential responses. Likewise, the regulated community needs information to decide how best to comply with …

Climate Change And The Clean Air Act, Lisa Heinzerling

Georgetown Law Faculty Publications and Other Works

In Massachusetts v. EPA, petitioners - twelve states, three cities, an American territory, and numerous health and environmental groups - have asked the Supreme Court to hold that the Clean Air Act gives EPA the power to regulate greenhouse gas emissions from motor vehicles and that EPA may not decline to exercise this power based on statutorily irrelevant factors. The problem petitioners ultimately seek to address - climate change - is unique in its scope and complexity. But the legal issues before the Court in Massachusetts v. EPA are neither particularly grand nor particularly complex. They are the kinds of …

Statutory Interpretation In The Era Of Oira, Lisa Heinzerling

Georgetown Law Faculty Publications and Other Works

In recent years, the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) has asserted a remarkable degree of authority over administrative agencies' rulemaking processes. One of the ways in which OIRA has exercised power over agencies has been to foist upon them its own views about the requirements of the statutes under which they operate. The most notable trend in this area has been OIRA's insistence on converting technology-based environmental laws into cost-benefit laws. In OIRA's hands, for example, the Clean Water Act ("the Act") is being transformed from a technology- based regime …

Applying Cost-Benefit To Past Decisions: Was Environmental Protection Ever A Good Idea?, Lisa Heinzerling, Frank Ackerman, Rachel Massey

Georgetown Law Faculty Publications and Other Works

In this Article, however, we do not mount a critique from outside the technique of cost-benefit analysis. Instead, we examine an argument that proponents of cost-benefit analysis have offered as a linchpin of the case for cost-benefit: that this technique is neither anti- nor pro-regulatory, but rather a neutral tool for evaluating public policy. In making this argument, these proponents have often invoked the use of cost-benefit analysis to support previous regulatory decisions (their favorite example involves the phase down of lead in gasoline, which we shall shortly discuss) as a sign that this technique can be used to support …

H.R. 2432, Paperwork And Regulatory Improvements Act Of 2003: Testimony Before The H. Comm. On Government Reform, 108th Cong., July 22, 2003 (Statement Of Lisa Heinzerling, Prof. Of Law, Geo. U. L. Center), Lisa Heinzerling

Testimony Before Congress

No abstract provided.

The Humbugs Of The Anti-Regulatory Movement, Lisa Heinzerling, Frank Ackerman

Georgetown Law Faculty Publications and Other Works

It is so hard to get beyond cynicism these days. Even a symposium devoted to this goal has, as reflected in the articles by Professors Cynthia Farina, Jeffrey Rachlinski, and Mark Seidenfeld, succeeded primarily in suggesting that regulators are not so much selfish as they are obtuse, stubborn, and sometimes downright dumb. Undoubtedly this is true some of the time. But Farina, Rachlinski, and Seidenfeld want to convince us that it is true enough of the time to warrant quite large-scale solutions. In this Comment, we take issue with this pessimistic assessment of regulatory behavior by discrediting the most prominent …

Interstate Water Compacts, John A. Carver

New Sources of Water for Energy Development and Growth: Interbasin Transfers: A Short Course (Summer Conference, June 7-10)

33 pages.

Contains references.