Environmental Regulation, Energy, and Market Entry

As my contribution to a symposium, I was asked to identify and to discuss conflicts between environmental regulation and pursuit of the goals of national energy policy. I identify three contexts in which I see clear conflicts between environmental regulation and energy policy - gasoline production, importation of liquefied natural gas, and transmission of electricity. In each case, I conclude that the conflict is attributable to state and local regulations. In the case of the gasoline market, I conclude that the market is beginning to perform poorly because of a combination of state land use regulations that make it impossible to construct new refineries and state gasoline-type mandates that are in the process of transforming the highly competitive and efficient national gasoline market into scores of much smaller inefficient markets that are increasingly susceptible to both unilateral and collusive exercises of market power. In the case of the natural gas market, I conclude that state and local government attempts to assert the power to veto federally approved liquefied natural gas terminals place us in jeopardy of experiencing a devastating shortage of natural gas in the next few years. In the case of electricity transmission, I conclude that our rapidly growing shortage of transmission capacity is already costing us many billions of dollars per year and increasing dramatically our vulnerability to widespread blackouts and price spikes, and that the shortage is attributable primarily to state and local land use regulation. In each case, the conflict can be eliminated only by reducing the power of state and local regulators and/or by transferring some regulatory power from state and local institutions to federal institutions

Which Institution Should Determine Whether an Agency’s Explanation of a Tax Decision is Adequate?: A Response to Steve Johnson

This Essay responds to Professor Steve Johnson’s Article for the 2014 Duke Law Journal Administrative Law Symposium, Reasoned Explanation and IRS Adjudication. I first describe the ways in which courts have added burdensome procedures that are not required by the APA for the notice and comment process. Next, I explain why the Office of Information and Regulatory Affairs (OIRA) is better than courts at reviewing the adequacy of agency reasons for issuing a rule. Finally, I explain how courts can eliminate judicial review for the adequacy of the reasons IRS gives for issuing a rule by applying the traditional broad interpretations of the Anti-Injunction Act and the tax exception to the Declaratory Judgment Act

Diffraction of sound by nearly rigid barriers

The diffraction of sound by barriers with surfaces of large, but finite, acoustic impedance was analyzed. Idealized source-barrier-receiver configurations in which the barriers may be considered as semi-infinite wedges are discussed. Particular attention is given to situations in which the source and receiver are at large distances from the tip of the wedge. The expression for the acoustic pressure in this limiting case is compared with the results of Pierce's analysis of diffraction by a rigid wedge. An expression for the insertion loss of a finite impedance barrier is compared with insertion loss formulas which are used extensively in selecting or designing barriers for noise control

Democratizing the Administrative State

Scholars have long questioned the political and constitutional legitimacy of the administrative state. By 1980, a majority of Supreme Court Justices seemed poised to hold that large portions of the administrative state are unconstitutional. In 1984, the Court retreated from that abyss and took a major step toward legitimating and democratizing the administrative state. It instructed lower courts to defer to any reasonable agency interpretation of an ambiguous agency-administered statute, basing this doctrine of deference on the superior political accountability of agencies. Henceforth, politically unaccountable judges were prohibited from substituting their policy preferences for those of politically accountable agencies. The Court recognized that agencies are politically accountable to the people because they are subject to the control of the elected President. The Court\u27s 1984 effort to democratize the administrative state has fallen far short of its potential because of temporal problems with the manner in which the Supreme Court defines and implements both the deference doctrine it announced in 1984, and the other two doctrines that require courts to defer to agency interpretations of agency-administered texts. The most important of those deference doctrines is explicitly premised on the Court\u27s understandable belief that policy decisions should be made by the politically accountable President rather than by politically unaccountable judges. Yet, the Court\u27s present method of implementing the deference doctrines has two unfortunate effects. First, in a high proportion of cases, there is a lag of four to eight years between the time that a President takes office and the time when a court is willing to acquiesce in implementation of the policies preferred by the President. In other words, each President is required to implement the policies preferred by his predecessor for at least one term and perhaps even for two terms. Second, in some important situations, regulatees are required to incur large costs in enforcement actions to comply with interpretations of agency rules that have already been rejected by the incumbent President by the time courts impose the costs on the regulatees, and that were disavowed by the agency at the time the regulatees engaged in the conduct that is the basis for the enforcement actions. This Article explains why these results are unacceptable, and proposes four changes in the Court\u27s present methods of implementing the deference doctrines that will eliminate these effects and that will create a more democratic and constitutionally legitimate administrative state in which Presidents actually have the power to make changes in policy within the statutory boundaries set by Congress