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Tuesday, July 26, 2005

Reject White House Interference in Agency Rulemaking
The White House improperly forced the Environmental Protection Agency to put aquatic wildlife at risk at the behest of corporate special interests, OMB Watch told a federal court today.

The White House Office of Management and Budget (OMB) substantially weakened an EPA proposal to protect the trillions of fish and aquatic organisms that are sucked up and killed each year by power plants that use rivers, estuaries, and oceans to cool their systems. OMB Watch filed a friend-of-the-court brief with the U.S. Court of Appeals for the Second Circuit today, calling on the court to reject OMB’s interference in the EPA rule.

“For some time now, OIRA has been interfering with agency rule-making,” explains Robert Shull, director of regulatory policy with OMB Watch. “We hope the court will finally do something about these political intrusions and allow agencies to do the job they were told to do by Congress.”

Read the press release
Download the brief

Posted by Robert Shull, 07:06:30 PM

Sunday, July 10, 2005

Real environmental review?
A new article explores the relationship between NEPA, the APA, and judicial deference to agency claims and asks whether it is acceptable for agencies conducting NEPA reviews to get away with listing their environmental considerations in the administrative record even though they have in fact given zero weight to those considerations. From the abstract:

his Article questions whether courts should engage in a more searching review of whether agencies, in fact, have given any weight to the environmental consequences or alternatives of their proposed actions. In other words, might giving zero weight to environmental factors in practice, despite their inclusion in the decision-making documents, violate the "arbitrary and capricious" standard of the Administrative Procedure Act ("APA")? The piece further examines the tension between the role of the APA and the U.S. Supreme Court's NEPA jurisprudence, and concludes that -- despite the Supreme Court's crippling of NEPA -- an agency's failure to give any weight to project alternatives and environmental concerns in the decision-making process would be unreasonable under the APA, and suggests indicators for determining whether such a failure has taken place.

Check it out: Jason J. Czarnezki, "Revisiting the Tense Relationship between the U.S. Supreme Court, Administrative Procedure, and the National Environmental Policy Act," 26 Stan. Envtl. L.J. __ (forthcoming 2005).

Posted by Robert Shull, 02:09:14 PM

Friday, July 01, 2005

Nominations and regulations
The announcement that Justice O'Connor is leaving the Supreme Court will undoubtedly bring one issue immediately to the forefront: abortion. Regulatory policy is also at stake in the judicial nominations process. O'Connor's announcement is a good time to look back at a previous Watcher article on the consequences for regulatory protections (written when the radical right-wing extremists previously rejected by the Senate were renominated for the appeals courts).

Posted by Robert Shull, 11:33:46 PM

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