My decision to write about the Congressional Review Act (CRA) in the fall of 2020 launched the beginning of an academic journey marked by several unexpected twists and turns. I originally chose to write about the CRA because, like many political theorists at the time, I was curious whether a Democrat-controlled Congress and presidency might utilize the CRA to rescind Trump-era agency rules (just as the Republican-led 115th Congress did for Obama-era regulations in 2017). But while I was intrigued by the possibility of using the CRA to strengthen environmental protections in the short term, I was terrified by the long-term implications of reinstating what is essentially a legislative veto.
The California coast seems like the ideal location for an offshore wind energy project: the state offers attractive incentives for renewable energy generation, Pacific wind patterns are strong and consistent, and the unusually long coastline provides plenty of space for offshore wind facilities to expand. Despite these favorable factors, the State of California is woefully behind its East Coast counterparts with respect to offshore wind development.
The movement of air pollutants across state lines, or interstate air pollution, presents an externalities problem in which downwind states suffer from pollution originating from outside of the state and are powerless to address it. The Environmental Protection Agency has made multiple attempts to regulate interstate air pollution, its most notable success in the Cross-State Air Pollution Rule, upheld in EME Homer, where the Supreme Court approved a framework that would allocate emissions among upwind states based on a cost-minimization principle.
In Sierra Club v. EPA, the Third Circuit Court of Appeal held that the Environmental Protection Agency’s (EPA) approval of Pennsylvania’s State Implementation Plan (SIP) was arbitrary and capricious because it failed to lower emissions, had a broad exception, and gave operators wide reporting discretion. The court held that these elements, taken together, demonstrated that agency approval was inappropriate. This In Brief argues that EPA should never have approved the Pennsylvania SIP because the operators’ reporting discretion component demonstrated that the proposed limitations did not comply with the Clean Air Act (CAA).