TQM-ing OMB: Or Why Regulatory Review Under Executive Order 12,291 Works Poorly and What President Clinton Should Do About It

Reflections are presented on how Pres Clinton should improve the deeply troubled relationship between the OMB and other government agencies. No president would dream of abolishing review of agency actions by the OMB

Twombly in Context: Why Federal Rule of Civil Procedure 4(B) Is Unconstitutional

Rule 4(b) of the Federal Rules of Civil Procedure delegates to private parties state authority to compel a person to appear and answer civil charges in court without any preliminary state review or screening for reasonableness. This is argued to be unconstitutional as a unreasonable seizure of the person, a deprivation of private property without due process, and a standardless delegation of state power to a private party with a financial interest. The history of the writ of summons is reviewed. From the Founding until 1938, federal courts reviewed the grounds proposed for suit prior to service of a summons ordering someone to come to court to answer charges. It is argued that unless courts routinely award full economic costs after the fact to make someone whole who has been sued wrongfully, they must satisfy themselves in advance that there is a reasonable basis for suit before ordering the persons sued to appear and answer. Rule 4(b) is argued to be unconstitutional as (1) a seizure of the person and property of the defendant without any attempt by the state to verify that it is reasonable to do so; (2) an unconstitutional deprivation of property without due process of law; (3) an unconstitutional delegation of state power to issue a court order to a private party with a financial interest, and (4) an unconstitutional repeal of a statute providing for judicial control over process without following constitutionally required procedures. The policy issues are even clearer than the constitutional ones. The current practice of delegating government power to private parties with an interest in the outcome who do not pay the full social costs of their speculation creates incentives to over-supply litigation and to file strike suits. The Supreme Court decisions in Iqbal and Twombly correctly identified this problem, but they misdiagnosed it as lying in Rule 8 relating to general rules of pleading, rather than Rule 4 relating to the “right” of anyone to compel anyone to come to court about anything without any prior review by the court. A possible solution, the “Pre-Service Plausibility Determination,” is suggested based on the system of preliminary review before service that is followed in many other areas of domestic law as well as some other countries. The issue of “reasonable but speculative” claims is also considered, and it is argued that the decision to allow such claims should not be delegated to plaintiff’s lawyers, but discovery to find missing link evidence should be allowed on a discretionary basis under Rule 27 at the expense of the plaintiff’s lawyer, who will benefit economically if the case is successful

The Last Great Clean Air Act Book?

Environmental lawyers are already blessed with several excellent summary overviews of the Clean Air Act (CAA). As useful as these general roadmaps are, however, every practicing environmental lawyer knows that the devil is in the details. For every statutory section, the administrative rules and regulations are at least an order of magnitude more complex than the statute itself; beneath the rules lie numerous interpretations, caveats, exceptions, guidance documents, regulatory preambles, agency manuals, letter rulings, policies, precedents, and manifold other administrative utterances. These administrative constructions and interpretations add at least another hundredfold to a thousandfold of additional detail. Together the multiple levels of administrative law-making form a vast interpretative pyramid of stunning detail and complexity that translates law at the wholesale level (the goal proclaimed in the statute) into law at the retail level (the specific, enforceable dictates to a regulated entity)

Strengthening Science’s Voice at EPA

Elliott considers the problem of institutional reforms to enhance the role of science in EPA decisionmaking. He asserts that science is underrepresented in policymaking at the EPA and that the quality of decisions at the margins would be improved by giving science somewhat greater influence

Environmental Markets and Beyond: Three Modest Proposals for the Future of Environmental Law

I offer three modest proposals for what we might do to improve environmental law in the United States in the next generation. They are: (1) increased use of nvironmental markets ( cap and trade or bubble programs) and other incentive-based regulatory instruments; (2) retroactive application of the Chevron decision, which would help to clear out some of the policy underbrush left by overly aggressive past courtdecisions; and (3) increased use of information production and dissemination as a strategy to stimulate so-called voluntary actions to protect the environment

Obama Administration Proposes New Federal Role in Siting Shale Gas Development in Combination With Renewables

One of the most interesting aspects of the State of the Union for the energy industry was not what the president said, but something buried in the accompanying White House fact sheet: a proposal for the federal government to assume an enhanced role in helping to plan shale gas development and at the same time promote renewable energy

Why Our Separation of Powers Jurisprudence Is So Abysmal

Separation of powers jurisprudence in the United States is in an abysmal state. That conclusion emerges clearly from virtually every article in this symposium. The kindest thing that anyone seems to be able to say about recent separation of powers decisions is that in certain cases the Supreme Court happened to reach the right result, albeit for the wrong reasons. Some commentators, while critical of the Court\u27s reasoning (or lack thereof), appear to take great comfort from their ability to write alternative opinions in which they supply reasoned rationales for the Court\u27s results. In my opinion, this draws just the wrong lesson. Far from being a hopeful sign, it is a damning commentary on the abysmal state of our current separation of powers jurisprudence that any reasonably competent law professor can supply better opinions than the justices of the Supreme Court in separation of powers cases

EPA’s Existing Authority to Impose a Carbon “Tax”

A number of bills have been introduced in recent years to put a price on carbon tax. These proposals generally proceed from the implicit assumption that the federal government in general, and the U.S. Environmental Protection Agency (EPA) in particular, does not already have such authority. That is incorrect. Under a federal statute that has been on the books since 1952, EPA could impose a carbon “tax” any time an administration in power is willing to do so. That is because a charge for using the public’s air to dispose of carbon dioxide and other wastes is technically not a tax, but rather a “user fee

Environmental Law at a Crossroad

Environmental law is important for at least two reasons. Over the last decade, environmental law has probably been the single largest growth area in the law, and this trend promises to continue. Today about half the total cost of government regulation of the economy is attributable to regulation to preserve and enhance the environment. We spend about $160 to$185 billion a year on government regulation, of which something on the order of $90 to$100 billion a year is spent on environmental protection. Between now and the year 2000, that $100 billion is going to increase to about$155 billion, which is roughly 2.5 percent of our gross national product (GNP). To put that in perspective, 2.5 percent of GNP is just about the same proportion of gross national product that we spent on the Marshall Plan after World War II. As a commitment of social resources, then, environmental law is the equivalent of an annual Marshall Plan at home to clean up the environment

Goal Analysis versus Institutional Analysis of Toxic Compensation Systems

How to compensate individuals for exposure to toxic substances has been hotly debated in legal circles recently. Most of the debate has been based on an assumption that is usually taken for granted: that reform must be accomplished by tinkering with the legal doctrines courts apply in toxic tort cases. The immediate purpose of this article is to question that assumption. Its thesis is that many of the problems that now afflict toxic compensation law cannot be solved as long as the issue is formulated in terms of modifying the legal doctrines applied by courts in toxic tort cases. Rather than debating about how to modify traditional tort law doctrines to accommodate toxic tort cases, we should be focusing on the problems of toxics in the environment from the standpoint of the legal system as a whole. From this perspective, the correct way to formulate the inquiry is in terms of two separate but related questions: (1) what role compensation through the legal system should play in an overall social strategy for dealing with toxic substances in the environment; and (2) which of a variety of institutions available to the legal system is best suited to dealing with toxic compensation problems