In the News

The Clean Air Act’s success reveals the flaws in the standard critique of the administrative state.

As in many other areas, Justice Anthony Kennedy was the swing vote in environmental cases, lining up in the middle of his more reliably conservative and liberal peers. His proposed replacement, Judge Brett Kavanaugh, has exhibited a very clear track record of relative solicitousness to regulated industry and skepticism to environmental interests. As a consequence, we can expect that a Kavanaugh confirmation would usher in a court that is considerably less sympathetic to environmental protections.

Everyone is worried that a scandal-free EPA will more effectively destroy regulation. But this discounts the problems that have plagued the Trump administration’s effectiveness.

The Second Circuit judges said NHTSA didn’t cite any specific statute that gives it authority to delay the increasing penalties. This point will be particularly important for several pending cases challenging EPA attempts to delay Obama-era regulations, Bethany Davis Noll, litigation director at the New York University Institute for Policy Integrity, told Bloomberg Environment. “That’s not enough of a justification. Agencies are supposed to be looking at society as a whole,” she said, adding that this point could trickle into eventual litigation over agency rewrites of rules should they cite cost reductions as part of their rationale.

This Monday, federal Judge William Alsup issued a ruling dismissing one of those cases, arguing that climate change is an issue better decided by Congress and the executive branch, rather than in court. Although the oil companies will certainty try to persuade other courts to follow Judge Alsup’s reasoning, they should decline to do so. Although these lawsuits are unorthodox, they fall within a long American tradition of requiring polluters to pay for the damages they cause.

If the EPA were to later propose to eliminate co-benefits, “that would be a disastrously wrongheaded policy and one that won’t survive judicial scrutiny,” says director of the Institute for Policy Integrity at New York University, Richard Revesz. “To say the indirect costs of regulation have to be considered, but that the indirect benefits cannot is irrational,” says Revesz. “You could not find a single reputable economist who would say that was a plausible idea.”

Rewriting agency guidelines to ignore co-benefits might sound like a mundane accounting change, but over time it would have grave effects on public health and welfare. This change would make it appear that regulations deliver fewer benefits relative to their costs than they in fact would. This would then make it easier for Pruitt to justify repealing rules, further tilting the scales toward the powerful polluters that he insistently favors—while severely disadvantaging the families and communities that bear the heavy burden of pollution.

Publicly owned lands in the United States contain many of the country’s most iconic natural areas as well as a wealth of natural resources. But these taxpayer-owned assets are on the verge of being given away for a fraction of their true value in an effort to prop up the uneconomical mining and drilling operations of some fossil-fuel companies, who clearly have the Department of the Interior’s ear.

Some requirements for expanded training, safety information, compliance audits, investigations of close calls, emergency response coordination, and other provisions at chemical facilities would take effect immediately, Noll said—and companies should prepare. “For the companies that didn’t do that, I think they might be in trouble,” Noll said.

Congress “never intended for these [coal] plants to operate forever. This was supposed to be a temporary transition ending at the end of their useful life,” said Revesz, co-author of Struggling for Air: Power Plants and the “War on Coal.” Instead, “We’ve created a monster.”