Reform of Administrative Law and Enforcement in China

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China LAO Delg2 11-13-2017I had a very interesting Monday morning earlier this week, which happened to be in a law firm conference room in Palo Alto.  I gave a presentation introducing the basics of American administrative law to a delegation of senior officials of the Legislative Affairs Office (LAO) of China’s State Council (as well as some officials from provincial legislative affairs offices).   The group of 14 officials are in the US on a study tour, spending this week in the SF Bay area and next week in Washington DC.  In DC, they’ll visit the US Department of Justice and the Interior Department.

When my research assistant Shuyang had researched ongoing activities of the LAO, he came across an interesting administrative reform pilot project, loosely translated as the 3 systems (pillars?) of administrative law enforcement.  These pilot projects, supervised by the LAO, are being implemented in many places in China and are designed to enhance government transparency and to ensure that enforcement occurs consistent with the law.  A February 10, 2017 English language press release  of the State Council  describes the purpose of this pilot project as focused on “information disclosure, full-process recording, and legal review of major law enforcement decisions.”  That appears to mean sharing more information about administrative enforcement processes with the public, better documentation of the enforcement proceedings themselves as well as evidence collection, and ensuring through LAO audits that enforcement processes comport with applicable law.

That is an interesting development, based on what I have seen in my previous lives as head of the US-China Partnership on Environmental Law at Vermont Law School and as EPA Deputy General Counsel.  In many respect, any reform effort that increases transparency of government decision-making, especially administrative enforcement processes, and ensures that enforcement proceedings comport better with the law will be really valuable in moving China closer to the rule of law.

However, I have to confess that none of that came up in my discussions with the delegation.  What did come up was a government proposal to add lawyers to each ministry/agency in China.  The parallel that some of the officials seemed to draw to the US are agency general counsels.  (It was only when they mentioned this that I understood the context of their numerous questions about my former role as EPA Deputy General Counsel.)  I have no idea how definitive this proposal is, but it seemed intriguing.  Compared to the US government, the role of lawyers is rather limited in China’s government bureaucracy.  Formally introducing “general counsel” officers into China’s government ministries would certainly focus government decision-maker more explicitly on the legality of their actions and the rule of law.  At the same time though, it was not clear to me how such new legal officers would interact with existing entities in the bureaucracy that already house lawyers, such as the Law and Policy Department within the Ministry of Environmental Protection.   That Department has always had great lawyers.  I guess we’ll  have to stay tuned to future developments.

China LAO Delg 11-13-2017Here’s a picture of me with  the head of the delegation, Director General Li Mingzheng of the Government Legal Affairs Research Center in the LAO.  The gift in the picture is a stylish silk neck tie.  Undoubtedly, it will seriously enhance my wardrobe.  But even with out that gracious gift, the discussion with the delegation members itself was well worth my time that morning.

ABA/ELI Report “Environmental Protection in the Trump Era”

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Recently, The American Bar Association’s Civil Rights and Social Justice Section, together with the Environmental Law Institute, published the Report “Environmental Protection in the Trump Era.”  The report is a thoughtful analysis of the major changes in the EPA that have occurred since President Trump took office in January 2017 and is well worth a read. In our view, the following three issues described by the report should present the greatest concerns for the American public:

“Two-For-One” Executive Order (or Executive Order 13771)

This order imposes two requirements: First, it mandates that for every new regulation adopted, two existing regulation have to be repealed (“two-for-one requirement”). Secondly, it establishes the “cost offset requirement”, insists that the cost imposed by new regulations must be compensated by the elimination of the existing two.

As costs are the only consideration, the order therefore discourages new beneficial regulations. Moreover, finding regulation for repeal will be difficult, because in existing regulations cost have often been internalized into efficient processes. So there is little, if any, cost saving available from the repeal of a regulation. However, the president’s intention by issuing this order appears to be to ease “over-regulation” and boost the expansion of small businesses.

Withdrawal of Funding for Regulation and Enforcement

Under The Trump Administration, the actions taken by the EPA so far indicate further that many of the rules issued during the previous administration will be frozen, reviewed, and amended. The goal appears to be to cut costs of regulation and enforcement. This effort comes with great concern for long term effects since it has been reported that the contemporary EPA’s cost-benefit analyses underestimate unforeseeable impacts on ecosystem services.

Regulations in jeopardy include: The Clean Power Plan, Waters of the United States rule, and EPA standards on methane, ozone, and toxic discharge limits. Additional costs will also be cut by decreasing enforcement measures; there will be limitations on requirements that demand polluters to pay for environmental depletion, fewer actions initiated by the EPA, smaller penalties, and caps placed on attorney’s fees. This is reflected in Trump’s FY 2018 Budget. It requests a 31% reduction in overall EPA funding; the gradual reduction in EPA responsibilities shows the agency’s preparation for this cutback.

Potential Problems of Future Regulations

The new Administration seems to be putting roadblocks in the EPA’s way, such as constraining agencies’ use of scientific data. If any of the pending bills in Congress are enacted, they would add structural constraints to the federal agencies’ ability to regulate. The Trump Administration and Congress have not given an opinion on how the states will be allowed to fill in the gaps in federal protections. Further, the Trump Administration’s actions dealing with air, water, and soil pollution have implications for vulnerable communities.

Key takeaway

When reflecting on the Report it appears to us that the Trump administration’s attempts to simplify the system are actually making it more complicated. The new EPA applies an incomplete cost benefit analysis, which is a source of controversy in the practice of environmental law. Additionally, the Administration’s goal is to help small businesses thrive, but how this is to be achieved is unclear. There is little question that businesses would likely be able to operate more profitably if there were fewer regulations. But with no market-based incentives to be environmentally friendly in the first place, fewer regulations would only result in inadequate protections for public health and the environment.

Furthermore, it appears that people in the lower socioeconomic strata will be the most adversely affected by EPA constraints. Trump’s EPA has minimized reliance on scientific data for standard promulgation in order to achieve procedural brevity. However, with less data to rely on, formulating pollutant discharge limitations will likely take even more time. In conclusion, the administration should look at new ways to handle the problems effectively (e.g., incentivizing advanced clean technology) rather than simply cutting entire programs.

Arielle Canepa, Haley Costamagna, and Josiane Weder

 

Position: Director, Texas A&M Energy Institute (Deadline: unclear, consideration starts Dec. 1, College Station, TX)

 

Position Announcement
Director, Texas A&M Energy Institute
The Texas A&M Energy Institute (http://energy.tamu.edu ) was founded in 2009 and it is a joint institute between Texas A&M University and the Texas A&M Engineering Experiment Station (TEES). It is led by a director who reports to the Texas A&M University Vice President for Research. The Texas A&M Energy Institute pursues and supports new approaches for multi-disciplinary energy research, education and external partnerships. These approaches cross departmental and college boundaries and address all facets of the energy landscape that naturally connect engineering, sciences, technologies, economics, law and policy. Dedicated to discovering energy solutions and improving the quality of life, the Texas A&M Energy Institute engages undergraduate and graduate students, postdoctoral associates, research staff, and faculty members toward the study and development of innovative technologies and policies for energy production and energy conservation.
The Energy Institute engages in interdisciplinary research with over 250 faculty affiliates from nine colleges, more than 20 Texas A&M University departments, two Texas A&M University branch campuses, and two Texas A&M University System agencies. Beyond research, it aims to educate the next generation of leaders in energy through its innovative Master of Science in Energy and Energy Certificate educational programs, foster an integrated approach and research agenda across disciplines and develop quantitative tools for the analysis of energy systems that will point the way to sustainability for decision-makers and a better quality of life.
The Energy Institute Director is the chief academic and administrative official for the institute whose responsibilities include:
1. Guiding the development and implementation of a vision for the Energy Institute.
2. Overseeing the Master in Energy and Certificate in Energy programs and providing leadership in energy education and energy research across Texas A&M.
3. Working to ensure resources necessary for the smooth operation of the Energy Institute, including from external awards and business and industry collaborations.
4. Fostering and engaging the growing Energy Institute faculty affiliates and carrying forward the vision on interdisciplinary engagement and inclusiveness across campus.
5. Engaging external agencies, stakeholders and industries at the local, state, national, and international levels to promote the vision, goals and activities of the Energy Institute.
6. Working to create a community of energy scholars and provide an internal and external point of entry for identifying and contacting energy expertise at Texas A&M.
7. Closely following new trends and emerging fields in energy research where Texas A&M can successfully position itself for funding opportunities and collaborations.
Preference for the position will be given to candidates who are qualified to hold an appointment at the rank of full professor with tenure at Texas A&M University. Inquiries, nominations and candidate materials, including a CV and narrative describing background, qualifications and brief a strategic vision for the Energy Institute can be sent in confidence to Ms. Shelly Martin via email to shelly.martin@tamu.edu . Consideration of applicants will begin December 1, 2017 but the position will remain open until filled. For further information, please contact Dr. Karen Butler-Purry, Interim Vice President for Research and search committee chair at vpr@tamu.edu .
Texas A&M University is an Equal Opportunity/Affirmative Action/Veterans/Disability Employer committed to diversity.

Fellowship: 2018-2020 Fellow in Climate Change Law, Columbia University Law School, Sabin Center for Climate Change Law (Deadline: Jan 15, 2018, but rolling review; New York City)

Here’s another fellowship opportunity that came across my email.

“Ongoing search for the 2018-2020 Climate Law Fellow at the Sabin Center for Climate Change Law. The listing is available here. The university does not use this language in its postings, but we do strongly encourage people of color, women, l/g/b/t/q individuals, and those with disabilities to apply.

The deadline to apply is January 15, but applications are taken on a rolling basis, so I always recommended highly interested candidates apply before then.

Please forward to graduating students and those within 3 years of their JD or LLM who you think might be interested.”

Fellowship: Fellow in Conservation Law, Environmental Resilience Institute, Indiana University (Deadline: unclear, Bloomington, IA)

The Environmental Resilience Institute (ERI) at Indiana University (IU) invites applications for a Fellow position in conservation law to begin in Fall 2018; the appointment is renewable for up to four years. Applicants with interests in private-land conservation, easements and other property tools, bird migration conservation, and public-private collaborations are especially encouraged to apply. Potential for collaborations with faculty and other fellows within the Environmental Resilience Institute as well as outside partners will be considered assets. Fellows will enjoy a generous research allowance, a rich collaborative environment, and eligibility to serve as PI on external grants. Fellows may work with law faculty and other attorneys affiliated with the Conservation Law Center (http://conservationlawcenter.org/).

The position is part of IU’s Prepared for Environmental Change Grand Challenge initiative (http://grandchallenges.iu.edu/p4ec). With a primary appointment in the ERI, the successful candidate will join a cohort of twelve Fellows of the ERI and a growing community of colleagues across the sciences, social sciences, and humanities who are engaged in this collaborative program of research and communication about environmental change. Formal affiliation with relevant department(s) and school(s) will be arranged on a case-by-case basis. Excellent fellow candidates will have experience with and openness toward multi-and trans-disciplinary collaborative research.

Applicants must have a J.D. prior to employment along with demonstrated relevant research or practice experience in conservation law; applicants with prior post-J.D. experience will be favored in the review process. Fellows will be expected to develop independent research programs that interface with ERI’s multidisciplinary initiative. Appointment will be for two years initially, with opportunity for renewal.

Apply through: http://indiana.peopleadmin.com/postings/4905

[Additional info:   The fellow will have the opportunity to work closely with Robert Fischman, Dan Cole, and Bill Weeks. The fellow’s office will be located at the law school, but there will be opportunities for collaboration with the Conservation Law Center, the Ostrom Workshop, and the Environmental Resilience Institute.]

California Supreme Court Retains Bar Exam Pass Score at 1440

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The California Supreme Court decided to keep the passing score for the Bar Exam at 1440, the second highest in the nation.   The review was prompted in large part by the steady decline in the Bar pass in recent years.  The pass rate for the 2016 July Bar Exam (which most new law graduate take) stood at about 43%, compared to 55-60% in earlier years.

As is well-known, California has the lowest bar passage rate in the country.  Of all the 50 states, Nebraska’s was the highest nationwide, at almost twice that for last July’s Bar Exam, 82%.  For comparison, other states’ bar passage rate for last July’s exam:  New York – 64%, Florida – 59%, Texas – 71%, Illinois – 72%, Massachusetts – 71%, Pennsylvania – 69%, Virginia – 73%, Washington – 70%, New Jersey – 65%, Georgia – 66%.  (The only jurisdiction that had a 100% pass rate was the Northern Mariana Islands, but it is not a state and only had 2 persons take the exam last July.)

Clearly, many lawyers who are unable to meet the requirements in California would have passed the bar exam in other jurisdictions.

For a complete listing of bar passage rates across the country, see the National Committee of Bar Examiner’s report for 2016.

Another Pruitt Folly:  An EPA Directive in search of a problem to solve 

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One might laugh, if the subject wasn’t so serious.  EPA Administrator Pruitt issued a new Agency directive today, entitled “Directive Promoting Transparency and Public Participation in Consent Decrees and Settlement Agreements,” together with a memo explaining it.  The objective of the Directive is to restrict the ability of the EPA to settle certain types of law suits, oftentimes where the Agency is in clear violation of a statutory deadline or other legal requirement.  Anyway, here is a link to an op-ed that I wrote about this issue a few years ago and why I think there is no real beef to the controversy.  But I am not writing about the merits of the issue here.

Why do I say that the directive is in search of a problem?  Take a look at the language in the Directive laying out the factual basis of the problem it is supposed to fix.

It has been reported . . . that EPA has previously sought to resolve lawsuits filed against it through consent decrees and settlement agreements that appeared to be the result of collusion with outside groups.  In some instances, EPA may have taken actions that had the effect of creating Agency priorities and rules outside the normal administrative process.”

“It has been reported?“ “EPA may have taken?”  Wow.  Some careful lawyering to make sure that there is no actual assertion of fact about the issue.  In fact, the entire directive appears to be based on hearsay, i.e. some abstract “reporting” on the issue.

Ok, so if there is no factual basis for the problem, maybe there is at least a theoretical legal problem to solve here?  Hey, we law professors always love theoretical legal problems to solve.  Turns out that the issue addressed by the Directive – the possibility of an agency colluding with the other litigant, exceeding its statutory authority, or agreeing to something that it shouldn’t via a court settlement, is actually addressed by Justice Department regulations.  These regulations are the result of a set of policies initiated under U.S. Attorney General Ed Meese, also referred to as the Meese Memo.  (When I was a junior attorney in the Justice Department’s Environment Division, I actually had to deal with the Meese Memo.)  The Meese Memo sought to address exactly the same perceived problem that is described in the Pruitt Directive and Memorandum.  However, since EPA is represented in any litigation by the Justice Department, all EPA court settlements must be approved by Justice Department authorities.  Therefore, any court settlements are subject to the Meese Memo regulations, which does much the same as the Pruitt directive.  Mmmh.  So, no theoretical legal need for the new Directive either.

I wish I could say that this is amusing.  But I am not amused.