The Importance of Looking Under the \u27Administrative Hood\u27: A Case Study of the National Waters Protection Rule

In an era of legislative gridlock, policy by administrative action has expanded, with major swings occurring when the political party of the presidency changes. These policy disputes have spilled into the third branch with a concomitant increase in legal challenges seeking judicial review of such actions. At the same time, both Republican and Democratic Administrations have made cost-benefit analysis the currency of federal rulemaking in the executive branch.The combination of the expansion of cost-benefit analysis and the increased litigation over rulemaking has increased the importance of economic and scientific justifications in both the promulgation and revision of administrative actions. However, despite their importance to the administrative process, the actual economic and scientific analyses which underlie cost benefit studies are often not at the front and center of regulatory action or of legal challenges. To more transparently understand the legality of administrative actions and thus to push for better regulatory actions, these underlying data should be better presented in agency actions. Though attorneys may not believe themselves well versed in the minutiae of such studies, underlying economic and scientific data should be analyzed closely in any legal rulemaking challenges. Administrative decisions that rely on an improper use of data or on flawed data are likely to be arbitrary and capricious, which could void a rulemaking and/or provide support for its repeal or replacement.In this article, we use the economic analyses accompanying the Trump Administration’s National Waters Protection Rule rulemaking under the Clean Water Act as a case study to demonstrate the importance of such data and administrative actions and discuss approaches for how to accommodate this moving forward

The Clean Power Plan: Issues to Watch

Although the Clean Air Act is an imperfect tool for addressing the nation’s greenhouse gas emissions, it is the only available federal mechanism for directly addressing power plant carbon emissions. The Obama Administration’s Clean Power Plan, published in final form in August 2015, tackles the challenge. This paper from the Center for Progressive Reform (CPR) compiles 13 separately authored essays from 11 CPR Member Scholars, each addressing a different topic related to the Clean Power Plan, and each representing the expertise and views of its individual author(s). Published in July 2015, just before the release of the final rule, the essays tee up key questions about the rule’s legality, implications for the energy sector, and a series of discrete implementation questions, including the role of cap-and-trade (and offsets), the nature and distribution of state targets, and implications for environmental justice

The Clean Power Plan: Issues to Watch

Although the Clean Air Act is an imperfect tool for addressing the nation’s greenhouse gas emissions, it is the only available federal mechanism for directly addressing power plant carbon emissions. The Obama Administration’s Clean Power Plan, published in final form in August 2015, tackles the challenge. This paper from the Center for Progressive Reform (CPR) compiles 13 separately authored essays from 11 CPR Member Scholars, each addressing a different topic related to the Clean Power Plan, and each representing the expertise and views of its individual author(s). Published in July 2015, just before the release of the final rule, the essays tee up key questions about the rule’s legality, implications for the energy sector, and a series of discrete implementation questions, including the role of cap-and-trade (and offsets), the nature and distribution of state targets, and implications for environmental justice

Restating Environmental Law

The American Law Institute\u27s work on Restatements is a monumental legal achievement and has helped bring clarity, consistency and guidance to many fields of U.S. law. ALI has not, however, ever undertaken a major project or Restatement on U.S. environmental or natural resource law. This article describes why U.S. environmental law provides a rich area for ALI to tackle, and it answers preliminary objections that ALI is not well suited for this particular challenge or that U.S. environmental law is a poor candidate for a Restatement or a Statement of Principles. We also describe an informal effort underway by a work group of nearly fifty ALI members to delineate workable environmental law projects that ALI could pursue, and we outline possible fruitful approaches that ALI could use to craft a Restatement or a Project on Principles of U.S. Environmental Law

Climate Change and the Puget Sound: Building the Legal Framework for Adaptation

The scope of climate change impacts is expected to be extraordinary, touching every ecosystem on the planet and affecting human interactions with the natural and built environment. From increased surface and water temperatures to sea level rise and more frequent extreme weather events, climate change promises vast and profound alterations to our world. Indeed, scientists predict continued climate change impacts regardless of any present or future mitigation efforts due to the long-lived nature of greenhouse gases emitted over the last century. The need to adapt to this new future is crucial. Adaptation may take a variety of forms, from implementing certain natural resources management strategies to applying principles of water law to mimic the natural water cycle. The goal of adaptation efforts is to lessen the magnitude of these impacts on humans and the natural environment through proactive and planned actions. The longer we wait to adopt a framework and laws for adapting to climate change, the more costly and painful the process will become. This publication identifies both foundational principles and specific strategies for climate change adaptation across the Puget Sound Basin. The projected impacts themselves of climate change in the region were well studied in a landmark 2009 report by the state-commissioned Climate Impacts Group. This publication analyzes adaptation options within the existing legal and regulatory framework in Washington. Recognizing the economic and political realities may not lead to new legislation, the recommendations focus on how existing laws can be applied and made more robust to include climate change adaptation