The Administrative Law of Regulatory Slop and Strategy

Judicial review of agency behavior is often criticized as either interfering too much with agencies’ domains or doing too little to ensure fidelity to statutory directives and the rule of law. But the Trump administration has produced an unprecedented volume of agency actions that blatantly flout settled administrative-law doctrine. This phenomenon, which we term “regulatory slop,” requires courts to reinforce the norms of administrative law by adhering to established doctrine and paying careful attention to remedial options. In this Article, we document numerous examples of regulatory slop and canvass how the Trump agencies have fared in court thus far. We contend that traditional critiques of judicial review carry little force in such circumstances. Further, regulatory slop should be of concern regardless of one’s political leanings because it threatens the rule of law. Rather than argue for a change to substantive administrative-law doctrine, therefore, we take a close look at courts’ remedial options in such circumstances. We conclude that a strong approach to remedies can send corrective signals to agencies that reinforce both administrative-law values and the rule of law

AN INTERNATIONAL LEGAL FRAMEWORK FOR SE4ALL: HUMAN RIGHTS AND SUSTAINABLE DEVELOPMENT LAW IMPERATIVES

Governments around the world recognize the link between human development and access to safe, secure, and affordable sources of energy. Nevertheless, many people have access to only rudimentary and inadequate energy sources, depriving them of opportunities for economic development and creating serious health risks. Even in countries in which access to energy services is adequate, the provision of those services has both health and environmental effects. In particular, the production of energy using fossil fuels generates greenhouse gases that contribute significantly to climate disruption, which is likely to create disproportionate risks to the same undeveloped nations already suffering from a lack of access to adequate energy supplies. To address these twin challenges, the United Nations Secretary General launched the Sustainable Energy for All initiative (“SE4All”) to achieve universal access to energy for all, while at the same time increasing stocks of renewable energy and improving the efficiency of energy systems to mitigate climate disruption risks. This Article places SE4All within both historical and international policy contexts. It argues that its effective implementation requires the articulation of an international legal framework that aids the transformation of SE4All’s policy actions into binding international legal commitments. It contends that an effective such framework can be derived from existing rules of international human rights law and sustainable development law. Reliance on these twin bodies of international law will increase the prospects for SE4All to achieve energy access and related goals that its predecessor initiatives have failed to accomplish

Energy Transmission Across Wild and Scenic Rivers: Balancing Increased Access to Nontraditional Power Sources with Environmental Protection Policies

Increases in the level of renewable energy production, spurred by climate change mitigation goals and regulatory programs such as state renewable energy portfolio standards, and in the level of fossil fuels extraction spurred by technological developments allowing access to previously unavailable natural gas supplies, have created a need for new energy transmission facilities. The new supplies are often located far from centers of high energy demand, requiring transportation over long distances. Some of the routes chosen for the new electric transmission lines and natural gas pipelines have already come into conflict with the environmental protections provided by the Wild and Scenic Rivers Act (WSRA). Other, similar conflicts are sure to follow. This article explores the clash between the policies that support increased production of and access to renewable energy and unconventional natural gas supplies and the preservationist impulse reflected in the WSRA. The parameters of this clash are difficult to discern, given the frustrating, obtuse, and rarely construed provisions of the Act that constrain federal assistance to and approval of energy-related facilities. This article identifies unresolved questions concerning the proper interpretation of these provisions and suggests how they should be resolved. Using the WSRA’s application to energy transmission facilities as an example of traditional conflicts between energy and environmental policies, it suggests an approach to accommodation. That approach involves avoidance, mitigation, and careful creation of exemptions from WSRA constraints that promise to serve energy policy goals and contribute to climate change mitigation, while retaining key protections for the nation’s most treasured river habitats

The Fate of the Clean Power Plan and U.S. Greenhouse Gas Emissions in the Trump Era

The Obama Administration’s signature effort to abate greenhouse gases (GHGs) that contribute to climate change was its Clean Power Plan (CPP), an innovative effort to rein in GHGs from existing fossil fuel-fired power plants, the U.S.’s largest source of stationary source emissions. The CPP never went into effect, however, the victim of an unusual stay issued by the United States Supreme Court before its effective date. Subsequently, a lower court halted the litigation attacking the CPP at the request of the Trump Administration to allow it to review (and presumably repeal) the CPP and put its own stamp on climate policy. This article discusses the review process the U.S. Environmental Protection Agency has embarked upon, its potential outcome, and the extent to which regulatory policies and market considerations are likely to shape GHG emissions from the U.S. electric power sector in the foreseeable future

Regulatory Blowout: How Regulatory Failures Made the BP Disaster Possible, and How the System Can Be Fixed to Avoid a Recurrence

The BP oil spill in the Gulf of Mexico is destined to take its place as one of the greatest environmental disasters in the history of the United States, or for that matter, of the entire planet. Like so many other disasters on that list, it was entirely preventable. BP must shoulder its share of the blame, of course. Similarly, the Minerals Management Service (MMS) – since reorganized and rebranded – has come under much deserved criticism for its failure to rein in BP’s avaricious approach to drilling even where it was unable to respond to a worst-case scenario in a responsible and timely fashion. But the problems run much deeper than a single risk-taking company and a single dysfunctional regulatory agency. This report sketches out widespread regulatory failure, touching several agencies of the federal government and affecting several critical environmental statutes. Prepared by Member Scholars of the Center for Progressive Reform (CPR), it has two goals: (1) to identify how and why the regulatory system failed to protect the public and environment and prevent the BP disaster, and (2) to recommend the priority reforms that are essential to correct these regulatory deficiencies. The report begins by laying out the shortcomings in the primary statute under which deepwater oil drilling is regulated – the Outer Continental Shelf Lands Act (OCSLA) – and outlines key reforms needed to provide the authority necessary to protect the public interest. It then turns to systemic problems within the agency charged with regulation of deepwater oil drilling under the OCSLA – the Mineral Management Service (MMS), renamed the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE) in the wake of the disaster. These include problems of agency capture and inadequate funding. The third topic addressed in the report is the role of the National Environmental Policy Act (NEPA) – how and why this landmark statute was disabled from performing its critical role in the case of the BP well, and what regulatory changes can ensure that it functions effectively in the future. The report next details the problems that surrounded the implementation and enforcement of the Endangered Species Act (ESA) as it applied to oil drilling and recommends several key reforms. The report then discusses a systemic problem that is a theme in each prior section and that specific statutory reforms cannot fully remedy: obstacles to making sound regulatory decisions in the face of uncertain, low probability risks of potentially catastrophic or irreversible harm. This section highlights a common sense solution: adoption of a precautionary stance. A precautionary approach would replace the current widely-adopted presumption that regulation must await a high – and often unattainable – degree of certainty, even when the potential costs are irreversible or catastrophic. In the last sections of the report, we step back to look at the regulatory system from a broader perspective. We consider first how the regulatory system and its failures in this case were caused in part by the absence of coherent policies on energy and climate change. Our current policy provides vast incentives for risky oil and gas development like deepwater drilling and few for low-carbon alternative energy sources. In the wake of yet another painful lesson on the cost of our current incoherent approach, it is time to focus political attention on the difficult but necessary task of debating and adopting a coherent and sound energy policy. In the final section, we step back geographically to suggest why another lesson of this disaster is that the United States should undertake to learn more from the experience abroad, offering the example of the North Sea. Had we been paying closer attention, the investigations and reforms in the wake of the infamous Piper Alpha spill or the Bravo platform blowout might have offered insights to help us avoid this disaster