Week in Review

IN THE NEWS

• Attorney General Pam Bondi announced that the U.S. Department of Justice is suing Maine for allowing transgender student athletes to participate in women’s school sports. Bondi claimed that the policy disregards President Donald J. Trump’s February executive order rescinding funds from school programs that deprive women of fair athletic opportunities and violates Title IX, the 1972 law prohibiting sex-based discrimination by federally funded schools. Maine Governor Janet Mills called the suit the “latest, expected salvo in an unprecedented campaign to pressure the State of Maine to ignore the Constitution and abandon the rule of law.” Maine Attorney General Aaron Frey, who will represent the state in the suit, said he is confident Maine is “acting in accordance” with the law.
• The Justice Department also issued a rule reducing the size of its Board of Immigration Appeals (BIA) from 28 to 15 members. The BIA is the appellate body of the Justice Department’s Executive Office for Immigration Review, that administers the immigration court system nationwide and decides whether those charged with violating immigration law should be removed from the United States. The BIA hears appeals of decisions by immigration judges nationwide. The Justice Department found that the increased size of the BIA “has not brought about the hoped-for increases in productivity envisioned by prior expansions.” It stated that the BIA’s size has diminished cohesiveness in decision-making, led to an “overall decline in the number of precedent decisions,” and resulted in greater inconsistencies. The Department concluded that reducing the number of BIA members to 15 would promote more consistent and timely decisions.
• The U.S. Department of the Treasury issued a rule eliminating regulations that “no longer have any current or future applicability.” The agency explained that the rule is intended to further the Trump Administration’s goal of reducing regulatory burdens pursuant to a recent presidential order entitled “Directing the Repeal of Unlawful Regulations.” Among the provisions for rescission will be conflicts of interest regulations under the Troubled Asset Relief Program, and regulations concerning civil penalties for certain violations of the Bank Secrecy Act.
• President Trump issued an executive order directing the Secretary of Energy to develop and publish an analysis of the amount of unused available capability of the nation’s electric power systems. The order also directs the U.S. Department of Energy to use all available emergency powers during periods of grid stress, pursuant to the Federal Power Act. The order is intended to “ensure the reliability, resilience, and security of the electric power grid” and meet the nation’s growing demand for electricity.
• The Trump Administration plans to reduce funding for the National Oceanic and Atmospheric Administration (NOAA) by more than 27 percent, including major cuts to its climate research programs. The President’s budget proposal, which could change before it is submitted to Congress for approval, would eliminate “all funding for climate, weather, and ocean laboratories and cooperative institutes.” If approved, the cuts would effectively halt NOAA’s research arm and curtail the agency’s ability to conduct climate research or support data collection used by farmers and other industries. The Administration also plans to propose cuts to the National Aeronautics and Space Administration’s science programs. The proposed cuts would take effect in 2026, but the Administration may expect NOAA to implement immediate changes.
• The Texas legislature passed a bill creating a state version of the Department of Government Efficiency, modeled after the Trump Administration initiative headed by Elon Musk. The bill, which has passed both chambers, calls for the establishment of an advisory panel to work with the governor to “eliminate unnecessary or ineffective rules” and reduce regulatory inefficiencies. Lieutenant Governor of Texas, Dan Patrick, claimed the bill will save taxpayer money and grow the economy. Texas Governor Greg Abbott has not made a public statement about whether he will sign the bill into law.
• The U.S. Fish and Wildlife Service (FWS) and NOAA proposed a rule to change the definition of “harm” under the Endangered Species Act (ESA) to exclude habitat destruction. The revision would limit the ESA’s prohibition against the “take” of endangered species to just killing or capturing wild animals, not hurting their habitats. The revision would repeal the existing definition upheld by the U.S. Supreme Court 30 years ago in Babbitt v. Sweet Home Chapter of Communities for a Great Oregon under Chevron deference. Citing Justice Antonin Scalia’s dissent in Sweet Home and Loper Bright Enterprises v. Raimondo, FWS concluded that the existing regulations “do not match the single, best meaning of the statute.” Although Loper Bright preserved the precedential force of prior cases that upheld specific agency actions under Chevron, FWS argued that the existing definition is not the only possible reading of the ESA.
• The U.S. Department of Energy issued a rule repealing the definition of “showerhead,” pursuant to an executive order directing the agency to do so. The agency repealed the rule without engaging in notice and comment, also at the direction of the executive order. The agency explained that foregoing notice and comment was permissible because the rule’s rescission qualified for the Administrative Procedure Act’s “good cause exception.” The exception applies if the agency finds that compliance would be “impracticable, unnecessary, or contrary to the public interest.”

 WHAT WE’RE READING THIS WEEK

• In a recent article in the Journal of Environmental Management, Haitao Xu and several coauthors from China’s Dalian University of Technology contended that the best approach to curbing carbon emissions is to alter carbon regulations based on the economic development of individual regions. After surveying previous research, the Xu team argued that the results of these studies depend too heavily on historical data, previous models ignore regional differences in industrial and technological advancements, and the studies use a single-industry model, disregarding the disparate impact of environmental regulations. Although the Xu team did not propose an ultimate solution to address these gaps, it recommended that policymakers consider regional economic development, encouraged countries to devote more resources to emission-reducing technology, and supported future research on the impact of environmental regulations on individual industries.
• In an essay in the Yale Law Journal Forum, Ronald M. Levin, a professor at the Washington University School of Law, examined the legal foundations and policy rationales for administrative agencies’ duty to respond meaningfully to significant comments received during notice-and-comment rulemaking. He stated that this duty, rooted in both judicial interpretations and the Administrative Procedure Act, enhances the legitimacy and quality of agency decision-making and promotes transparency and accountability in the administrative process. The disadvantage, he noted, is that responding to comments delays the rulemaking process and increases agency workload. Levin explored how this obligation interacts with other administrative law doctrines, such as procedural fairness and standing to sue, and suggested that it exemplifies how the administrative process can evolve through moderate, consensus-oriented refinement.
• In an essay in the University of Chicago Law Review, David Zaring, a professor at the University of Pennsylvania’s Wharton School, compared the U.S. Supreme Court’s approaches to administrative law and securities regulation. Zaring observed that the Court frequently revisits administrative law questions but resists change in securities regulation. Zaring proposed that the divergence between these issues suggests that the Court is more interested in policing rights against the state, which is the focus of administrative law, and is less interested in changing the landscape of private disputes, which is the focus of securities regulation.

EDITOR’S CHOICE

• In an essay in The Regulatory Review, Sijeong Lim, an associate professor of international studies at Korea University, and Aseem Prakash, a professor of political science at the University of Washington, argued that despite political resistance, carbon pricing—through taxes or emissions trading—encourages innovation in climate-friendly technologies by increasing energy costs and motivating firms to develop cost-saving solutions. Lim and Prakash found a correlation between carbon pricing and an increase in patent applications, even after accounting for government spending on research and development. They concluded that carbon pricing should be seen not just as a climate policy, but as an innovation policy essential for competing in the global clean technology race.