Administrative Law

Saving Coal: A Tale of Two Agencies

January 26, 2018

Generating electricity from coal is a dirty business. Coal mining and power production release toxic heavy metals like mercury, respiratory irritants like sulfur dioxide and particulates, and large volumes of heat-trapping gases like carbon dioxide and methane. Nevertheless, the current administration has made no secret of its desire to “save” coal. Its latest effort involved…

Sharon B. Jacobs

Advising the EPA: The Insidious Undoing of Expert Government

December 6, 2017

The modern administrative state was built on the promise of expertise. As James Landis argued in his New Deal-era defense of the bureaucracy, expert agencies are needed to effectively oversee the behavior of sophisticated industry actors. Consistent with Landis’s vision, government agencies today are populated by subject matter experts. Thus, the Environmental Protection Agency (EPA)…

Sharon B. Jacobs

Catskill Mountains: A Spotlight On The Problem of Judicial Acquiescence To Agency Statutory Interpretations, and the Chevron-State Farm Solution

December 4, 2017

Overview Chevron — the stalwart doctrine of administrative deference — is under political, judicial, and academic attack. Our newest Justice, Neil Gorsuch, has denounced Chevron as “a judge-made doctrine for the abdication of the judicial duty.” Chief among his complaints is that Chevron deference enables an agency to “reverse its current view 180 degrees anytime…

Catherine M. Sharkey

The Deregulatory Moment and the Clean Power Plan Repeal

November 30, 2017

We are currently in the midst of the most important deregulatory moment in the United States since the beginning of Ronald Reagan’s presidency in 1981 — perhaps since the dawn of the administrative state. President Donald Trump has issued a series of Executive Orders directing agencies to explore opportunities to reduce regulatory burdens, including Executive…

Jack Beermann

Digital Realty Trust v. Somers: Hasn't Chevron Deference Gone Too Far?

October 17, 2017

In the high-flying corporate world, employees from time to time suspect that a colleague or boss may be violating federal securities laws. But they may shy away from reporting these violations — from “blowing the whistle” — either to the employer or relevant authorities, because of a risk of retaliation. When Congress passed the Dodd-Frank…

Ilya Shapiro