Energy & Environment
Environmental regulations seek to foster the responsible use of our planet’s natural resources while ensuring clean air, unpolluted water, and a protected environment. While these goals have notable public support, reasonable people differ on the best methods to protect the environment and public debate on the effectiveness of current policies is common. Are there more effective and less burdensome ways to accomplish these vital goals?
A Long and Winding Road: How the National Environmental Policy Act Has Become the Most Expensive and Least Effective Environmental Law in the History of the United States, and How to Fix It
In this paper, Mark Rutzick discusses the National Environmental Policy Act, explores how it has developed since its enactment in 1970, examines the costs and burdens it imposes, and proposes potential solutions.Read this paper
In this paper, John Cohrssen and Henry Miller discuss the current state of biotechnology regulation, the potential benefits of smarter regulation of such technology, and a possible path forward.Read this paper
In this paper, James Coleman explores the Jones Act and argues that repealing the almost-hundred-year-old law “could be a confidence-building measure toward freer trade, less costly regulation, and less government interference in energy markets.”Read this paper
In this paper, Daren Bakst, Mark Rutzick, and Adam White explore the EPA’s recent “Waters of the United States” rule and argue that such an approach “imposes immense costs and burdens on private property rights and on economic growth.”Read this paper
At a live Regulatory Transparency Project event, following remarks from FERC Commissioner James Danly, an expert panel discussed the present and future challenges facing energy reliability and regulationListen to this podcast
At a live Regulatory Transparency Project event, FERC Commissioner James Danly addressed the present and future challenges facing energy reliability and regulation.Listen to this podcast
In this podcast, experts discuss the potential implications of Sackett v. EPA for defining “waters of the United States.”Listen to this podcast
Deep Dive Episode 239 – Energy Security After Ukraine: What are the Challenges and Opportunities for the U.S. and its Allies?
In this podcast, energy experts discuss the recent events in Ukraine and the opportunities available for the US and allies to reclaim energy security.Listen to this podcast
Deep Dive Episode 236 – Sackett v. EPA: How Will the U.S. Supreme Court Define “Waters of the United States?”
In this podcast, experts discuss the first case of the new SCOTUS term and the implications it may have for defining “waters of the United States.”Listen to this podcast
James W. Coleman shares his analysis of the factors causing high energy prices and suggests policy solutions on the federal, state, and local levels.Listen to this podcast
An expert panel discusses the historic decision of West Virginia v. EPA, the Supreme Court’s “major questions doctrine,” and the implications for future regulatory innovations.Listen to this podcast
Energy policy experts joined us to discuss President Biden’s “Permitting Action Plan.”Listen to this podcast
An expert panel joined us for a discussion on the Clean Power Plan and the implications of the ongoing litigation.Listen to this podcast
Professor Jonathan Adler discusses a recently-enacted law that repealed changes to EPA methane emissions regulations made by the Trump administration.Listen to this podcast
Todd Gaziano and Professor Jonathan Adler discuss the CRA and the ramifications of its use on the three rules this year.Listen to this podcast
Deep Dive Episode 184 – Federalism or a Federal Standard? Fuel Economy and Greenhouse Gas Emissions Standards
An expert panel discusses the ongoing debates over whether federal agencies should enforce a national standard for automobile fuel economy and greenhouse gas emissions.Listen to this podcast
Deep Dive Episode 160 – The Myths and Facts Regarding the EPA’s Benefit-Cost Analysis and Science Transparency Rules
In this live podcast, subject-area experts examine the likely real-world impact of two new EPA rules.Listen to this podcast
An expert panel explores the potential of human ingenuity to solve the problems facing our earth and the conditions necessary to make those solutions a reality.Listen to this podcast
Deep Dive Episode 135 – Evaluating the EPA’s Proposals to Retain the Existing Particulate Matter and Ozone Standards
Experts discuss the EPA’s recent proposals to retain both the existing particulate matter and ozone primary and secondary standards.Listen to this podcast
Deep Dive Episode 132 – A Conversation with EPA Administrator Andrew Wheeler: New Rule on Guidance Procedures and More
This live podcast features EPA Administrator Andrew Wheeler and Jeffrey Holmstead discussing the EPA’s recent rulemaking regarding agency guidance documents.Listen to this podcast
Experts explore state laws and regulations that expand states’ reach into national and international affairs, and go on to discuss different interpretations of the Constitution regarding the role of the judiciary in evaluating such laws.Listen to this podcast
Richard Belzer, Daren Bakst, and Adam White discuss a proposed rule that would require the EPA to make public important information underlying both significant regulatory actions and influential scientific information disseminated by the Agency.Listen to this podcast
Do SEPs violate the Miscellaneous Receipts Act and other laws intended to preserve Congress’ constitutional power of the purse? Jeffrey Clark discusses this isue and more in this Deep Dive episode.Listen to this podcast
In this episode, Professors David Adelman and James Coleman discuss the recently proposed changes to the NEPA process and examine the potential effects.Listen to this podcast
In this episode, James Coleman and Sharmila Murthy discuss the constitutionality of California’s cap and trade agreement with Quebec.Listen to this podcast
In this episode, Daren Bakst, Tony Francois, and John Paul Woodley discuss the new definition of WOTUS and its potential impacts.Listen to this podcast
In this episode, Brianne Gorod, Glenn Roper, and Donald Kochan discuss the implications of the recently argued Supreme Court Case County of Maui, Hawaii v. Hawaii Wildlife Fund, which touched issues of interpretation in the enforcement of the Clean Water Act.Listen to this podcast
In this episode, Gordon A. Coffee and Ari Peskoe discuss recent conflicts between state and federal authorities surrounding different approaches to energy regulation.Listen to this podcast
Recently, the U.S. Fish and Wildlife Service and the National Marines Fisheries Service finalized several new Endangered Species Act regulations. In this episode, Jonathan Wood speaks to Daren Bakst on some of the controversy and legal challenges surrounding those new rules.Listen to this podcast
What does the Clean Air Act authorize EPA to regulate, how much discretion does EPA have in regulating emissions, which plan more closely fits the intent of the original law? These and other questions are taken up in this engaging discussion.Listen to this podcast
What are the advantages and disadvantages of such a system? Should specialized bureaucrats do the lion’s share of rulemaking? Or should elected Senators and Congressman, often without the same level of expertise, write the rules that govern our nation? In this episode, experts discuss these questions and more.Listen to this podcast
Juliana v. United States is a pending lawsuit in which a group of minors alleges that the government has violated their right to a stable climate under the 5th Amendment. In this episode, experts discuss the recent oral arguments in the case, the potential outcome, and the constitutional implications of the case.Listen to this podcast
For decades, the EPA and Corps have struggled to come up with a proper definition that is both consistent with the plain language of the statute, respects the state role in addressing water pollution, and is consistent with the rule of law. In this episode, experts will discuss a recently proposed rule defining “waters of the United States” and its implications.Listen to this podcast
In this episode, Adam Gustafson and Daniel Farber discuss various approaches to considering co-benefits in the cost-benefit analyses of new air pollution regulations, and whether the standing approach is the most efficient and cost-effective.Listen to this podcast
Deep Dive Episode 33 – Visiting the EPA’s CAFE: What’s on the Menu for Fuel Economy and Greenhouse Gas Standards?
Sean H. Donahue (Goldberg & Weaver), Jacqueline Glassman (King & Spalding), and James Conde (Boyden Gray & Associates) discuss the potential legal, political, and economic consequences of the EPA’s proposed rollback of fuel economy and greenhouse gas standards.Listen to this podcast
Daren Bakst (The Heritage Foundation) and Richard B. Belzer Ph.D. discuss EPA Administrator Scott Pruitt’s recent announcement on “secret science” and “how transparency in government can be strengthened and better inform policymaking.”Listen to this podcast
Deep Dive Episode 19 – Does the Migratory Bird Treaty Act Prohibit Incidental or Accidental Killing?
Gary Lawkowski (Department of the Interior) discuss the Migratory Bird Treaty Act and how this regulatory space has evolved over the years.Listen to this podcast
At a live event cosponsored by the American Enterprise Institute, panelists discuss obstacles and the regulatory, legislative, and legal solutions that will unlock permitting for a cheaper, cleaner, and more secure grid.Watch this video
A Global Energy Crisis and the FERC: A Discussion of Challenges and Opportunities [Panel Discussion]
At a live Regulatory Transparency Project event, an expert panel including Michael Buschbacher, Jennifer Chen, Jim Wedeking, and moderator Marc Spitzer discussed the present and future challenges facing energy reliability and regulation.Watch this video
At a live Regulatory Transparency Project event, FERC Commissioner James Danly addressed the present and future challenges facing energy reliability and regulation.Watch this video
Energy Security After Ukraine: What are the Challenges and Opportunities for the U.S. and its Allies?
In this webinar, energy experts discuss the recent events in Ukraine and consider the legal and policy levers available to the US and its allies to enhance their energy security.Watch this video
In this webinar, a panel of experts discuss the oral argument of Sackett v. EPA and the opportunity before the Supreme Court of the United States to determine the confines of “waters of the United States.”Watch this video
Experts discuss the first case of the new SCOTUS term and the implications it may have for defining “waters of the United States.”Watch this video
An expert panel discusses the historic decision of West Virginia v. EPA, the Supreme Court’s “major questions doctrine,” and the implications for future regulatory innovation.Watch this video
Experts examine the current state of the MBTA’s enforcement and debate how policymakers should approach the migratory bird crisis.Watch this video
Professors Jonathan Adler and Todd Gaziano discuss the CRA and its use on 3 rules earlier this year.Watch this video
Are fuel economy regulations the best tool to reduce pollution? How do they affect consumer behavior, and do they have hidden costs?Watch this video
The creators of the award-winning documentary, They Say It Can’t Be Done, in partnership with the Federalist Society’s Regulatory Transparency Project, present It Can Be Done Live – a conversation between entrepreneurs, regulatory experts, and noted academics around creative and bipartisan solutions to global challenges to our shared future. The third of four panel events, It Can Be Done Live: The Future of Our Earth, took place on September 24th, 2020.Watch this video
In May, the Environmental Protection Agency announced a new proposed rule to “establish the procedures and requirements for how the U.S. Environmental Protection Agency (EPA) will manage the issuance of guidance documents subject to the requirements of the Executive Order entitled ‘Promoting the Rule of Law Through Improved Agency Guidance Documents.’” The EPA indicated that they “intended to increase the transparency of EPA’s guidance practices and improve the process used to manage EPA guidance documents.” The comment period for the proposed rule closed in late June.
On September 14, 2020, the Regulatory Transparency Project hosted an informative conversation with Administrator Wheeler and Jeffrey Holmstead.Watch this video
The National Environmental Policy Act (NEPA) was designed to regulate federal infrastructure projects to minimize harmful environmental impact. Over time, the review process has become lengthy and costly. This process has delayed or condemned needed construction of roads, pipelines, and power lines.
In this video, Professor James Coleman discusses possible benefits of NEPA reform, while explaining why the issue is hotly debated. He proposes a new way of formulating the question that could be discussed without resorting to partisanship.Watch this video
On June 18, 2019, the Federalist Society’s Article I Initiative and Regulatory Transparency Project hosted a panel on “Agency Rulemaking: Unnecessary Delegation or Indispensable Assistance?” at the National Press Club in Washington DC.
In his recent article, “Strategic Institutional Positioning: How We Have Come to Generate Environmental Law Without Congress,” Donald Kochan lays out the argument that delegation of authority to agencies serves the interests of both sides of Congress. What are the advantages and disadvantages of such a system? Should specialized bureaucrats do the lion’s share of rulemaking? Or should elected Senators and Congressman, often without the same level of expertise, write the rules that govern our nation?Watch this video
Passed into law in 1920, the Jones Act is a ban on transport between two U.S. ports, unless it’s on a U.S.-built, U.S.-manned, U.S. flagged, and U.S.-owned ship. The Jones Act was designed to protect the United States’ shipbuilding industry and to ensure that U.S. waters and ports are safe and secure. Some argue, however, that in the context of the modern shipping economy the Jones Act does little to protect national security and, instead, raises prices on U.S. consumers and businesses.
In this Fourth Branch video, James Coleman (Dedman School of Law) and George Landrith (Frontiers of Freedom Institute) discuss the Jones Act’s history, debate its impact on American society today, and explore whether the Jones Act should be updated for today’s economic and national security needs.Watch this video
What is the Clean Water Act? Have historical interpretations of its scope changed over the years? What are the practical effects of those interpretations on the environment, farmers, and landowners? How is this issue relevant today? Donald Kochan and Robert Glicksman explore these questions as they discuss the scope of the Clean Water Act.Watch this video
Government regulation is intended to improve the efficiency of markets and protect people from harms they cannot identify or prevent on their own. But, for decades, advocates have debated whether the regulatory process and rules developed through it are too strict or too lax; whether they properly account for all the things society values; and even whether they make society better or worse off on balance. The Journal of Law, Economics & Policy’s Symposium on Regulatory Reform, Transparency, and the Economy explored these and related questions as leading scholars and practitioners examined a number of recent regulatory proposals impacting a broad swath of the American economy – from banking and finance to energy and the environment, and from employment law to the internet economy. Speakers considered and debated how well these proposals would perform their intended functions and how they might be improved.
The symposium featured discussions of research papers prepared by experts working on the Federalist Society’s Regulatory Transparency Project. The proceedings of the Conference were published in a special symposium issue of George Mason’s Journal of Law, Economics & Policy.Watch this video
Section 27 of the Merchant Marine Act of 1920, colloquially known as the Jones Act, requires that shipments between two U.S. ports be on U.S.-built, U.S.-manned, and U.S.-owned vessels. Because of the Jones Act, it is often more expensive to ship supplies between U.S. ports than it is to ship supplies abroad. The Act was adopted in 1920 to support naval preparedness by boosting the U.S. shipbuilding industry.
But is it time to scale back the Jones Act? The U.S. energy export boom is leaving U.S. consumers behind because it is cheaper to ship oil and liquefied natural gas all the way to Europe or Asia than to the U.S. East Coast. And the Jones Act, long a drag on Puerto Rico’s economy, is also raising the cost of all the aid necessary to help the island recover from Hurricane Maria. This expert panel explores the Jones Act controversy and discusses whether it can be reformed without endangering national security.Watch this video
In West Virginia v. Environmental Protection Agency, the Supreme Court correctly concluded that the Obama Administration and U.S. Court of Appeals for the D.C. Circuit embraced an overbroad understanding of the EPA’s authority under Section 7411 of the Clean Air Act. The way the Court reached that conclusion left something to be desired, however. As I discuss in my forthcoming analysis of the case for the Cato Supreme Court Review, the Court front-loaded its consideration of the major questions doctrine and failed to fully engage with the relevant statutory provisions. It also missed an opportunity to refocus the major questions doctrine on what really matters in cases like this: What power did Congress delegate to the agency.Read this article
Even for experts who regularly track energy and environmental regulations, it can be difficult to stay abreast of many important regulations that have been proposed or soon will be proposed across the federal government. This post is intended to help those interested in federal energy and environmental regulations. While by no means comprehensive, its focus is identifying many important rules that have been proposed and are still receiving comments (as of the date of this writing) or that will soon be proposed, that is, they are still under Office of Information and Regulatory Affairs (OIRA) EO 12866 review.Read this article
The Heritage Foundation has just released a special report entitled “37 Biden Administration Regulations in the Pipeline that Americans Should Know About.”Read this article
“This case gives the Court an opportunity for a major ruling on one of the country’s most impactful environmental laws.”Read this article
Richard B. Belzer
In a recent Food and Drug Law Journal article, the Heritage Foundation’s Daren Bakst discusses how to strengthen the Information Quality Act (IQA), a law that could help to improve both the transparency and quality of information disseminated by federal agencies, and improve federal rulemaking that relies on this information.Read this article
In a recent blog post for the New Civil Liberties Alliance entitled “Bad Regulations Destroy Our Environment,” Harriet Hageman describes the regulatory failures that created the perfect “environment” for the catastrophic forest fires that plagued the interior west for much of 2020.Read this article
When the EPA finalizes its recently proposed rule on the consideration of costs and benefits in CAA rulemaking, the agency should clarify that there are limits to applying indirect benefits, also known as “ancillary benefits” or “co-benefits,” in regulatory decision-making.Read this article
A central feature of the Clean Water Act (CWA) is cooperative federalism. In fact, right at the start of the statute, Congress made it clear that states are expected to take the leading role in addressing water pollution.Read this article
James W. Coleman
How much can the federal courts do on a climate change? If you want more climate regulation than Congress is willing to provide, it’s an urgent question. The most recent and most ambitious climate lawsuit is Juliana v. United States, a lawsuit by children asking the courts to order the government to aggressively regulate carbon emissions. These plaintiffs argue that they have unwritten constitutional and federal common law rights to a stable climate and that the government must uphold these rights by imposing limits on private carbon emissions. The Ninth Circuit recently heard their argument and its upcoming decision will help define the outer boundaries of what the courts can do on climate change.Read this article
In the last days of 2018, EPA invited comment on a proposal (the revised Supplemental Cost Finding for the Mercury and Air Toxics Standards) that could change the way regulatory benefits are calculated for some of its biggest rules. The immediate reach of the proposal is narrow. But it raises important questions about the proper consideration of regulatory costs and benefits, and its implications should be considered carefully.Read this article
Daniel Lungren, Donald Kochan, Patrick Parenteau, Richard Faulk, and John Baker
Originally Speaking is a written debate series that approaches a contemporary topic from diverse perspectives. The Federalist Society takes no position and encourages a clear and constructive exchange on the subject. Posts in an OS series chain off of each other in waves, creating a loose stream of dialogue.
The focus of this series is if climate change is eligible for common law public nuisance claims, as articulated in the lawsuits by CA and NY municipalities against several major oil and gas companies. We hope you enjoy this Originally Speaking series.Read this article
James W. Coleman
On January 1, 1970, President Nixon signed the National Environmental Policy Act (NEPA) into law. The law requires that the government issue a report—known as an environmental impact statement—before taking major federal actions that significantly impact the environment. NEPA is not a substantive environmental standard; the government can approve a harmful project. It is merely procedural, reflecting the sensible adage “look before you leap.”Read this article
On July 19, the U.S. District Court for the Southern District of New York dismissed the lawsuit brought by the City of New York and others against several large oil companies. The lawsuit claimed those companies were responsible for public and private nuisances under federal common law for the transboundary effects of emissions causing climate change. These municipality lawsuits for climate change are the subject of a Federalist Society Environmental Law & Property Rights Practice Group podcast from July 3, titled “Municipality Lawsuit on Climate Change and Public Nuisance: Litigation Update.”Read this article
N. District of California: Elected Branches of Government Are the Proper Channels for Addressing Climate Change
In a trenchant Los Angeles Times opinion piece, Chapman University law professor and constitutional law expert Donald Kochan assesses an important recent decision rendered by Judge William Alsup of the U.S. District Court for the Northern District of California in two controversial climate-change lawsuits brought by Oakland and San Francisco against a small subset of the world’s energy companies.Read this article
Professor Donald Kochan has a new article on public lands and federalism just published in Volume 25, Issue 1, Page 1, by the Virginia Journal of Social Policy & the Law. The full article, Public Lands: Pride, Place, Proximity & Power, can be downloaded here. Here is the abstract.Read this article
The WOTUS debate raises a lot of big issues. “Restoring Meaningful Limits to ‘Waters of the United States'” offers a good summary of the stakes involved in getting the definition right.Read this article
Today, President Donald J. Trump waived the requirements of the Merchant Marine Act of 1920 – better known as the Jones Act – for Hurricane-battered Puerto Rico. The waiver takes effect immediately.Read this article
Effective regulatory policy that focuses resources on addressing real threats to public health and the environment depends on reliable scientific information and transparent policy choices.Read this article