Faculty Bibliography

West Virginia v. Environmental Protection Agency1 is the Supreme Court’s most important administrative law decision in decades. The opinion’s significance is due principally to the Court’s embrace of an aggressive version of the so-called “major questions doctrine” (MQD), which appears to require unusually explicit statutory authorization before agencies may undertake “major” regulatory actions. The West Virginia Court claims that this strong MQD is based on longstanding precedent, and that its use has salutary effects on the policymaking process. Neither claim is accurate. In Part I of this Article, we show that the strong version of the MQD embraced by the West Virginia Court is in fact relatively new; the extent of the doctrinal innovation is obscured by the fact that the MQD label has been unhelpfully attached to several related but distinct interpretive techniques, which we disentangle. In Part II, we turn to the impact of this new MQD on the policymaking process, focusing in particular on democratic accountability. While the MQD’s proponents claim that this doctrine protects separation-of-powers principles and the prerogatives of Congress, in fact the new MQD is more likely to weaken democratic accountability by shifting power from the elected branches to the courts, undermining transparency, and exacerbating the already excessive tendency toward minoritarian obstruction in Congress. The West Virginia Court’s aggressive MQD would likely have other effects; perhaps most importantly, this version of the MQD makes it much more difficult for the federal government to address new problems under broadly worded statutes. Both the MQD’s supporters and its detractors anticipate that the doctrine will result in less, and less aggressive, federal regulation. For purposes of this Article, though, our critique of the MQD focuses less on its impact on policy outcomes (though we think this is very important), and more on the impact of the MQD on the policymaking process, especially the extent to which the MQD makes that process less democratic.

The court’s reasoning could restrict federal regulation in many areas, making it more difficult for agencies to protect consumers, set standards for health and safety, and regulate financial markets, among other things.

The Congressional Review Act (CRA) authorizes fast-track procedures for resolutions disapproving agency rules. The near-universal assumption is that the CRA is relevant only when a new President seeks, with the support of Congress, to cancel regulations promulgated during the previous administration. Yet the CRA has substantially greater unrealized potential. When the agency, the President, and congressional majorities agree on their preferred interpretation of a statute, they can secure formal legislative endorsement of this interpretation through the following two-step maneuver: first, the agency promulgates an interpretive rule that construes the statute to have the opposite of the meaning the agency actually wants--for example, by interpreting a statute to prohibit a regulation that the agency would like to adopt. Next, Congress and the President use the CRA to disapprove that interpretive rule--thus establishing, via a formal exercise of legislative power, that the statute has the meaning the agency rule rejected. This double-negative maneuver would be a lawful way for the Executive and Legislative Branches to clarify, or even to change, statutory law in a manner that bypasses the filibuster and other legislative roadblocks. This Article develops this legal argument and also discusses the practical, political, and normative implications of this novel use of the CRA.

The Congressional Review Act gives Congress the power to disapprove of agency rules by simple majority vote. It could provide a way around the filibuster to keep the existing program for dreamers in place

In conjunction with the 50th anniversary of the creation of the Environmental Protection Agency, this book brings together leading scholars and EPA veterans to provide a comprehensive assessment of the agency’s key decisions and actions ...

An editorial is presented on U.S. Donald Trump administration's attempt to rollback fuel efficiency standards for vehicles set by former President Obama and it states it is a retrograde step as the standards were set based on available technologies and to protect the environment.

Environmental law and energy law, two historically disparate fields, seem to be converging. Energy regulation has begun to seriously address environmental concerns for the first time, and environmental law is increasingly becoming a driver of energy policy. This Article describes the legal mechanisms through which greater congruence has been achieved, while acknowledging the still significant and stubborn barriers to true integration, which likely will be difficult to overcome. It shows that federal agencies have taken steps toward greater policy alignment by repurposing existing statutory provisions and relying on previously under-utilized legal authorities for the first time, in a carefully calibrated process of legal innovation. Yet it also shows this process to be meaningfully constrained by the agencies' adherence to their own distinct missions, and by the constraints of their particular statutory authorities. The Article builds on the work of scholars who have lamented the divide between energy and environmental law, and urged that it be dismantled. Most of the accounts to date suggest that environmental rules and energy sector regulation, which are so obviously interrelated, inevitably will be drawn closer together. The analysis here looks more closely at the drivers of convergence to date, and presents a more nuanced picture of events. The trend toward greater policy alignment, while real, is limited. Energy and environmental regulators have not embraced convergence as an independent goal, but rather have achieved it incrementally and indirectly, as a consequence of pursuing their traditional missions during a time of change. These agencies have reacted to numerous external forces--technological innovation, market shifts, scientific developments, federal and state regulatory measures--which have prompted them to respond with their own initiatives. Yet they remain constrained by the bounds of their governing statutes and the confines of their long established regulatory roles. Tellingly, these agencies have tended to justify their policy innovations as necessary to fulfill their own traditional mandates, not to help other agencies realize theirs. The Article ultimately concludes that claims of convergence between the two fields should be tempered. However desirable greater policy congruence might be, it has not been mandated by Congress, explicitly commanded by the President, or centrally directed by anyone else. And it is not inevitable. The most that can be said is that convenient alignments may arise when the imperatives of these different regulators coincide. Thus, the story of “convergence” between energy and environmental goals is one of gradual steps rather than great leaps--of interest-based compatibility rather than love-struck merger.

This outstanding author team presents administrative law as a vital force in policymaking, law enactment, and politics. Look for these key features of the new edition: • Addition of important new cases on recess appointments, Chevron Step Two, “Seminole Rock” deference, occupational licensing, and FOIA Exemption 2. • Substantial enrichment of materials on formal adjudication under the APA. • Splitting of the policymaking chapter into two chapters (choice of policymaking instruments and rulemaking) for greater clarity and teaching flexibility. • Updating and streamlining of the materials on licensing. • Presentation of important classic and secondary cases in squib format. • Substantial streamlining, condensing, and reorganizing of background notes.

This comprehensive, current examination of U.S. law as it relates to global climate change begins with a summary of the factual and scientific background of climate change based on governmental statistics and other official sources.

“Dual federalism,” “cooperative federalism,” and “federalism all the way down” — these are some of the terms constitutional and administrative law scholars have used to try to capture how decision making power is allocated between the federal and state governments. Drawing from examples in the field of energy and environmental regulation, this article presents an alternative conception of such power arrangements as “network” federalism. The network analogy best captures three key features of how certain contemporary governance systems actually work: authority is divided among different levels of government, dispersed across institutions at the same level of government and shared among both public and private actors. The Article explores the example of U.S. electricity regulation, which divides authority between the Federal Energy Regulatory Commission and state public utility commissions; disperses relevant power across multiple agencies at each level of government; relies on private bodies to oversee system reliability and establish critical operational standards; and deputizes non-profit regional organizations to coordinate, control and monitor the electricity system. Such networks are complex but not necessarily chaotic. They can be orderly while also being dynamic. Network federalism puts a premium on coordination and dispute resolution, and requires legal mechanisms for negotiating boundaries. From this perspective, it is misleading to describe policy as driven either by the government or the private sector, or led by federal versus state actors. Instead, policy is the product of the network.

Interagency coordination is one of the great challenges of modern governance. This Report, prepared for the Administrative Conference of the United States (ACUS), highlights the challenges presented by fragmented agency responsibilities. Rather than oppose all agency fragmentation, the Report highlights instances when it presents governance problems and describes the variety of tools that Congress, the President, and agencies may use to manage coordination challenges more effectively. These tools include agency interaction requirements, formal interagency agreements, and joint policymaking. This Report also assesses the relative strengths and weaknesses of these coordination tools using the normative criteria of efficiency, effectiveness, and accountability, and it concludes that the benefits of coordination will frequently be substantial. To varying extents, these instruments can reduce regulatory costs for both government and the private sector, improve expertise, and ameliorate the risk of bureaucratic drift without compromising transparency. Coordination can also help to preserve the functional benefits of shared or overlapping authority, such as promoting interagency competition and accountability, while minimizing dysfunctions like discordant policy. Building on the existing literature, and past proposals of organizations like ACUS, the Report recommends a comprehensive executive branch effort to promote stronger interagency coordination and improve coordination instruments. The Report also recommends some more targeted reforms designed to promote coordination and its benefits, including development of agency policies on coordination, sharing of best practices, ex post evaluation of at least a subset of coordination processes, and tracking of outcomes and costs. These reforms could be adopted in a new Executive Order on agency coordination; added as amendments to existing Executive Order 12866 or 13563; adopted as part of the Office and Mangement and Budget’s implementation of the Government Performance and Results Act; or prescribed by Congress via statute. Agencies might also voluntarily adopt a number of these reforms. This Consultants' Report served as a background for ACUS Recommendation 2012-5, "Improving Coordination of Related Agency Responsibilities," adopted on June 15, 2012.

In this reply we address the comments and critiques of our article, Climate Change and U.S. Interests, published in the Columbia Law Review and excerpted in the Environmental Law Reporter.

The Eighth Edition provides up-to-date treatment of climate change issues.

The public policy debate on the appropriate American response to climate change is now in full swing. There are no longer significant voices disputing that climate change is real or that it is primarily the result of human activity. The issue today is what the United States should do about climate change given the risks the country faces and the likely economic impacts. The question is whether putting a price on carbon domestically is worth the cost. In this Article we make the case that the United States should act aggressively to mitigate the effects of climate change. In doing so we take on and debunk the "climate change winner" argument, which asserts that the United States is likely to fare well in a warmer world, at least compared to most other states and, therefore, faces no rational incentive to invest in expensive mitigation efforts that will largely benefit other states. In this view, impacts on the United States are best addressed through a strategy of adaptation rather than mitigation - the construction of both literal and figurative sea walls to reduce the effects of global warming. The dominant response to this argument has been an appeal to a perceived moral obligation on the United States based on its wealth and its historical greenhouse gas emissions. Though we are sympathetic to this moral argument, this Article takes a different approach. We demonstrate that even if one accepts that the premises of the climate change winner argument - that impacts on the United States will be less severe than elsewhere and that the United States is not morally obliged to help foreign states - the case for American action on climate change is strong. Considering only the narrow self-interest of the United States, we show that the climate change winner argument is wrong. We explain that existing estimates systematically underestimate the likely economic impact of climate change, and we provide rough estimates of what a more complete accounting would reveal. The sources of downward bias in existing models are numerous and include undue optimism about future warming, overlooked asymmetries around expected increases in temperature, and a failure to account for catastrophic events, non-market costs, cross-sectoral impacts, and impacts on productivity. Also ignored by existing estimates are the ways in which climate change impacts abroad will spillover into the United States through economic effects, national security, migration and disease, creating additional costs. This Article shows that climate change is not simply a problem for the rest of the world. It is far likelier than current models suggest to lead to serious negative consequences for the United States. If this is so, the country should take prompt and aggressive action to address climate change, not out of benevolence or guilt, but out of simple self-interest.

See also, 41 Envtl. L. Rep. 10695 (2011). The public policy debate on the appropriate American response to climate change is now in full swing. There are no longer significant voices disputing that climate change is real or that it is primarily the result of human activity. The issue today is what the United States should do about climate change given the risks the country faces and the likely economic impacts. The question is whether putting a price on carbon domestically is worth the cost. In this Article we make the case that the United States should act aggressively to mitigate the effects of climate change. In doing so we take on and debunk the “climate change winner” argument, which asserts that the United States is likely to fare well in a warmer world, at least compared to most other states and, therefore, faces no rational incentive to invest in expensive mitigation efforts that will largely benefit other states. In this view, impacts on the United States are best addressed through a strategy of adaptation rather than mitigation – the construction of both literal and figurative sea walls to reduce the effects of global warming. The dominant response to this argument has been an appeal to a perceived moral obligation on the United States based on its wealth and its historical greenhouse gas emissions. Though we are sympathetic to this moral argument, this Article takes a different approach. We demonstrate that even if one accepts that the premises of the climate change winner argument – that impacts on the United States will be less severe than elsewhere and that the United States is not morally obliged to help foreign states – the case for American action on climate change is strong. Considering only the narrow self-interest of the United States, we show that the climate change winner argument is wrong. We explain that existing estimates systematically underestimate the likely economic impact of climate change, and we provide rough estimates of what a more complete accounting would reveal. The sources of downward bias in existing models are numerous and include undue optimism about future warming, overlooked asymmetries around expected increases in temperature, and a failure to account for catastrophic events, non-market costs, cross-sectoral impacts, and impacts on productivity. Also ignored by existing estimates are the ways in which climate change impacts abroad will spillover into the United States through economic effects, national security, migration and disease, creating additional costs. This Article shows that climate change is not simply a problem for the rest of the world. It is far likelier than current models suggest to lead to serious negative consequences for the United States. If this is so, the country should take prompt and aggressive action to address climate change, not out of benevolence or guilt, but out of simple self-interest.

The dramatic growth of government over the course of the twentieth century since the New Deal prompts concern among libertarians and conservatives and also among those who worry about government’s costs, efficiency, and quality of service. These concerns, combined with rising confidence in private markets, motivate the widespread shift of federal and state government work to private organizations. This shift typically alters only who performs the work, not who pays or is ultimately responsible for it. “Government by contract” now includes military intelligence, environmental monitoring, prison management, and interrogation of terrorism suspects. Outsourcing government work raises questions of accountability. What role should costs, quality, and democratic oversight play in contracting out government work? What tools do citizens and consumers need to evaluate the effectiveness of government contracts? How can the work be structured for optimal performance as well as compliance with public values? Government by Contract explains the phenomenon and scope of government outsourcing and sets an agenda for future research attentive to workforce capacities as well as legal, economic, and political concerns.

In Massachusetts v. Environmental Protection Agency (2007), the Supreme Court held, among other things, that the EPA has statutory authority to regulate greenhouse gases under the Clean Air Act, and that the agency cannot decline to do so on political grounds. We analyze the logic of MA v. EPA and its broader implications for administrative law and regulatory policy. We locate MA v. EPA in the context of the Justices' increasing worries about the politicization of administrative expertise, particularly under the Bush administration. The majority's solution for this worry, we suggest, is a kind of expertise-forcing: the Court attempts to ensure that agencies actually do exercise expert judgment, and that they do so free from outside political pressures, even or especially political pressures emanating from the White House or political appointees in the agencies. Whereas a line of caselaw and commentary stemming from Chevron USA Inc. v. Natural Resources Defense Council sees presidential politics and expertise as complementary, expertise-forcing has its roots in an older vision of administrative law, one in which presidential politics and expertise are fundamentally antagonistic. Because the Court subjects the denial of a rulemaking petition to hard look review, we suggest that MA v. EPA is State Farm for a new generation.

In this chapter, I suggest a counterintuitive way to view American privatization trends. Instead of seeing privatization as a means of weakening the state and reducing public accountability, I imagine it as a mechanism for expanding public accountability's reach into realms traditionally thought private. In other words, privatization can be a means of "publicization," a process through which private actors increasingly commit themselves to traditionally public goals as the price of access to lucrative opportunities to deliver goods and services, and to perform functions that might otherwise be provided directly by the state. Rather than compromising democratic norms of accountability, due process, equality, and rationality -- as some critics of privatization fear it will -- privatization might extend these norms to private actors through the judicious use of legislative, executive, judicial, and even social oversight.

Over the last decade, market-based incentives have become the regulatory tool of choice when trying to solve difficult environmental problems. Evidence of their dominance can be seen in recent proposals for addressing global warming (through an emissions trading scheme in the Kyoto Protocol) and for amending the Clean Air Act (to add a new emissions trading systems for smog precursors and mercury--the Bush administration's "Clear Skies" program). They are widely viewed as more efficient than traditional command and control regulation. This collection of essays takes a critical look at this question, and evaluates whether the promises of market-based regulation have been fulfilled. Contributors put forth the ideas that few regulatory instruments are actually purely market-based, or purely prescriptive, and that both approaches can be systematically undermined by insufficiently careful design and by failures of monitoring and enforcement. All in all, the essays recommend future research that no longer pits one kind of approach against the other, but instead examines their interaction and compatibility. This book should appeal to academics in environmental economics and law, along with policymakers in government agencies and advocates in non-governmental organizations.

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