It is almost never “rational, never mind ‘appropriate’” to ignore regulatory costs

Today’s Supreme Court decision in Michigan, et al. v. EPA (consolidated with Utility Air Regulatory Group v. EPA and National Mining Assoc. v. EPA) invalidated EPA’s regulation on electric power plant hazardous air pollutants for not taking its enormous costs … Continue reading

There are many ways to protect endangered species

If species aren’t protected under the Endangered Species Act’s burdensome approach, they’ll receive no protection at all. This is an all too common refrain. But it’s a false choice. There are many ways to try to conserve and recover species. … Continue reading

Is it the Commerce Clause or the Future Commerce Clause?

The Utah prairie dog regulation prohibits the “take” (harassing, hunting, etc.) of prairie dogs on private land. The federal government, which has only the enumerated powers granted to it by the Constitution, says it can regulate purely intrastate species like … Continue reading

It’s good to have friends

Many friend-of-the-court briefs have been filed supporting People for the Ethical Treatment of Property Owners‘ challenge to the federal government’s unconstitutional Utah prairie dog regulation. These briefs are a reminder of how important the issue is and how unnecessary the … Continue reading

My congressional testimony this week: EPA’s Science Advisory Board

On Wednesday, May 20, 2015, I testified before a senate subcommittee seeking to make EPA’s Science Advisory Board more transparent, effective, and fair.  The senate bill at issue, S. 543, is being proffered in response to criticism that EPA is not using the Board properly to provide peer review of the scientific bases of its regulatory proposals.  My testimony criticized EPA’s failure to send proposed regulations governing carbon dioxide emissions to the Board for expert analysis before finalizing the rules.  IMG_0208_kpCarbon dioxide is a  natural substance that is everywhere and in everything.  By regulating that ubiquitous substance, EPA gives itself the potential authority to regulate virtually everything, everywhere.  That is an unprecedented reach for power by a federal administrative agency.  Accordingly, if anything merits peer review from the top scientific experts, it is the scientific analysis forming the foundation of EPA’s carbon dioxide regulatory proposals.  For more details, see my written and oral (time stamp 41) testimony.

Is the Constitution a paradox?

In defending the constitutionality of the Utah prairie dog regulation, the government makes a paradoxical claim. Conceding that federal intrusions into areas of traditional state authority are unconstitutional, the government nonetheless argues that the Necessary and Proper Clause allows the … Continue reading

Is Chief Justice Roberts anti-environment?

To honor Chief Justice Robert’s first decade on the Supreme Court — more like castigate him — the Constitutional Accountability Center has released a series of papers on the court’s jurisprudence. The most recent of which addresses the court’s environmental … Continue reading

Can the federal government make a city pass a leash law? [Updated]

The obvious answer must be no, right? Setting aside the absurdity of a town’s leash law being a federal issue, the Constitution forbids the federal government from commandeering state and local governments. In New York v. United States and Printz … Continue reading

Oral argument in PLF’s challenge to EPA’s mobile source greenhouse gas rules held on January 9, 2015

On Friday, January 9, 2015, the D.C. Circuit heard our challenges to the greenhouse gas emissions standards for new trucks and cars.  The challenges were based on EPA’s failure to submit to the Science Advisory Board for peer review the Truck Rule and the separate Car Rule limiting greenhouse gas emissions.  We argued that submittal to the Board is a nondiscretionary statutory mandate applicable to all EPA rules, and that EPA’s failure to comply with the mandate requires the Truck Rule and Car Rule to be remanded and vacated, so that the Agency can reopen the administrative record to seek review from the Board.

The three-judge panel of Tatel, Ginsburg, and Edwards did not concentrate on the substantive issue of whether EPA failed to comply with the statutory requirement.  Rather, they spent the bulk of the hearing asking questions regarding whether the Petitioners had standing to bring the actions.  Standing is a Constitutional requirement, which forbids federal courts from hearing cases unless there is a bona fide controversy between parties to a lawsuit.  The purpose of the standing requirement is to ensure that the courts do not engage in resolving philosophical or abstract questions.

For the purposes of our cases, the standing requirement has three components: (1) the petitioners must be injured-in-fact by the Truck Rule or Car Rule, as the case may be; (2) the injuries must be caused by the rules; and (3) the Court is able to grant relief that will remove or reduce the injuries.  It is difficult to predict how any particular court will decide any pending issue, but the D.C. Circuit panel seemed to side with us on the injury-in-fact and causation issues, concentrating most of their questions on the redressability issue.  It comes down to this: whether vacating and remanding the EPA Truck Rule and Car Rule will help to ameliorate the injuries in light of similar California rules and the federal fuel economy standards promulgated by the National Highway Traffic Safety Administration.  Citing Supreme Court precedent, we argued that the Petitioners’ injuries are redressable because a favorable decision would remove at least one regulatory cause of the injuries.  There is no requirement that all causes of the injury be removed.

If the panel rules in our favor on the standing question, it will be required to address the substantive issue of whether EPA’s violation of the submittal requirement merits remand and vacatur of the two rules.  We expect a decision before the end of the year.