286 episodes

The Regulatory Transparency Project is a nonprofit, nonpartisan effort dedicated to fostering discussion and a better understanding of regulatory policies.

On RTP’s Fourth Branch Podcast, leading experts discuss the pros and cons of government regulations and explain how they affect everyday life for Americans.

RTP's Fourth Branch Podcast The Federalist Society

    • Politics

The Regulatory Transparency Project is a nonprofit, nonpartisan effort dedicated to fostering discussion and a better understanding of regulatory policies.

On RTP’s Fourth Branch Podcast, leading experts discuss the pros and cons of government regulations and explain how they affect everyday life for Americans.

    Deep Dive 232 - The Implications of Jarkesy v. SEC for Administrative Tribunals

    Deep Dive 232 - The Implications of Jarkesy v. SEC for Administrative Tribunals

    In May, the U.S. Fifth Circuit Court of Appeals vacated a decision of the Securities and Exchange Commission that hedge-fund manager George Jarkesy had committed securities fraud. The case, Jarkesy v. SEC, stuck down an important enforcement provision of Dodd-Frank and represents a potential strengthening of nondelegation and unitary executive principles. As a consequence, it could have far-reaching implications that go far beyond the securities laws.

    The panel held that the SEC had violated the defendant’s 7th amendment right to a trial by jury because fraud is not a “public right” claim triable by administrative tribunal but a traditional claim that must be tried by a court. The panel also held that the law giving the SEC authority to choose between court trials and administrative trials of such claims constituted an unconstitutional delegation of legislative authority, in violation of the nondelegation doctrine. Finally, the court chipped away at the SEC’s independent status, holding that restrictions on removing administrative law judges only for cause infringed on the president’s vested authority to see that the laws be faithfully executed, in violation of the Constitution’s separation of powers.

    What does Jarkesy mean for the future of administrative law? Was the Fifth Circuit following the principles laid down in recent Supreme Court precedent? Or has it struck out on its own, perhaps in an effort to spur the Supreme Court to further curtail the administrative state? The SEC has asked for en banc review. The decision creates an apparent split with the Ninth Circuit decision in Decker Coal v. Pehringer (2021) and could be headed to the Supreme Court.

    Featuring:
    Jonathan Adler, Johan Verheij Memorial Professor of Law and Director, Coleman P. Burke Center for Environmental Law, Case Western Reserve University School of Law
    Mario Loyola, Senior Fellow, Competitive Enterprise Institute
    [Moderator] Devin Watkins, Attorney, Competitive Enterprise Institute

    Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

    • 1 hr 2 min
    Deep Dive 231 - West Virginia v. EPA and the Major Questions Doctrine

    Deep Dive 231 - West Virginia v. EPA and the Major Questions Doctrine

    In the historic decision of West Virginia v. EPA, the Supreme Court held that the Clean Air Act doesn’t authorize EPA to force America’s electricity sector to switch to renewable sources. The Court invalidated the Obama-era Clean Power Plan, which would have limited the total allowable greenhouse gas emissions of each state’s utility sector under the banner of “performance standards” for power plants. That was the regulatory strategy the EPA had pursued for cutting emissions from electricity generation. Consequently, the decision closes the window on the most viable regulatory route for sweeping climate action by federal agencies without a clear congressional mandate, while raising the bar still higher for options such as NAAQS for greenhouse gases.

    The decision’s linchpin was the Court’s holding that the Obama Administration’s novel interpretation of a 50-year old statutory provision could not be used to support the broad new powers that EPA had claimed for itself in the Clean Power Plan. Under the court’s “major question doctrine,” Congress must speak clearly to delegate “decisions of vast economic and political significance” to an agency. Together with Justice Neil Gorsuch, who in concurrence further elaborated on his view of non-delegation, the majority opinion by Chief Justice John Roberts signaled that the Court is likely to reject major regulatory innovations by federal agencies that are not based on clear statutory authority.

    Featuring:
    Daniel Farber, Sho Sato Professor of Law and Faculty Director, Center for Law, Energy, and the Environment, University of California, Berkeley
    Adam Gustafson, Senior Counsel for Environmental and Regulatory Affairs, Boeing
    Mario Loyola, Senior Fellow, Competitive Enterprise Institute
    [Moderator] James Coleman, Robert G. Storey Distinguished Faculty Fellow and Professor of Law, Southern Methodist University Dedman School of Law

    Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

    • 1 hr 2 min
    Deep Dive 230 - Who Is Regulating the Regulators?

    Deep Dive 230 - Who Is Regulating the Regulators?

    In the Executive Office of the President is a small office that most people outside the Beltway have never heard of. The Office of Information & Regulatory Affairs (OIRA) reviews agencies' draft regulations, public information requests, surveys, etc. Across administrations - both Republican and Democratic - it has served as a check on excessive administrative zeal. The Joe Biden administration has yet to nominate someone to head the office.

    Susan Dudley and Paul Ray served as the presidentially appointed administrators of the office in the George W. Bush and Donald Trump administrations, respectively. They shared their perspectives on the importance of this "obscure but powerful" office, and what the lack of a confirmed administrator means for the executive branch and its agencies.

    Featuring:
    Susan Dudley, Director, GW Regulatory Studies Center & Distinguished Professor of Practice, Trachtenberg School of Public Policy & Public Administration, George Washington University
    Paul Ray, Director, Thomas A. Roe Institute for Economic Policy Studies, The Heritage Foundation

    Visit our website - www.RegProject.org - to learn more, view all of our content, and connect with us on social media.

    • 1 hr 1 min
    Deep Dive 229 – Overcoming the Challenges to Clean Infrastructure

    Deep Dive 229 – Overcoming the Challenges to Clean Infrastructure

    On November 15, 2022, President Biden signed the Infrastructure Investment and Jobs Act. On May 11, 2022, the White House released the Permitting Action Plan, to "accelerate and deliver infrastructure projects on time, on task, and on budget."

    The infrastructure bill represents a major public investment in infrastructure development. And yet significant obstacles to infrastructure development remain. Does the infrastructure bill help overcome some of those obstacles? How does the Permitting Action Plan address those obstacles? How can the federal government work with states, localities, tribes and territories to overcome these challenges?

    In this webinar, energy policy experts discussed these questions and more.

    Featuring:
    - Edward Boling, Partner, Perkins Coie LLP
    Alex Herrgott, President & CEO, The Permitting Institute
    - [Moderator] Mario Loyola, Senior Fellow, Competitive Enterprise Institute

    Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

    • 1 hr 3 min
    Explainer 37 – The Defense Production Act and the APA

    Explainer 37 – The Defense Production Act and the APA

    In this episode, J. Kennerly Davis, Jr., former Deputy Attorney General for the Commonwealth of Virginia, discusses the historical origin of the Defense Production Act, the powers the Act gives to the president, and recent presidents' invocation of the Act in pursuit of public policy objectives.

    Featuring:
    - J. Kennerly Davis, Jr., Former Senior Attorney, Hunton Andrews Kurth LLP

    Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

    • 32 min
    Deep Dive 228 – Does the Federal Energy Regulatory Commission (FERC) Have Authority To Regulate the Climate?

    Deep Dive 228 – Does the Federal Energy Regulatory Commission (FERC) Have Authority To Regulate the Climate?

    The Biden administration has pledged to meet what it calls "the accelerating threat of climate change" with a wide-ranging campaign to discourage the production and use of fossil fuels in order to control the emission of carbon dioxide and other greenhouse gases said to be the principal cause of global warming. The White House has directed regulatory agencies and departments across the executive branch to "tackle the climate crisis." The administration has set a goal to eliminate carbon dioxide emissions from the electric power sector by 2035.

    The Federal Energy Regulatory Commission, or FERC, is an independent regulatory agency whose enabling statutes include the Federal Power Act and the Natural Gas Act. FERC's statutory responsibilities include regulation of the transmission and wholesale sale of electricity in interstate commerce, and authorization of proposals for the construction and operation of interstate natural gas pipelines and storage facilities.

    Doing its part to tackle the climate crisis, FERC has proposed a new policy that will greatly expand the scope of the climate-related environmental impact analysis required for proposed natural gas projects. Traditionally, such analysis has been limited to an evaluation of the emissions that would result directly from the construction and operation of the proposed project. Going forward, FERC is proposing that such analysis will also evaluate the emissions that would result indirectly from the upstream production and downstream use of the natural gas to be handled by the proposed project.

    In other policy statements having to do with the electric sector, FERC has announced that it will consider proposals from entities it regulates to add into wholesale electricity prices any charges that are levied by state regulators on greenhouse gases emitted by the power plants producing the electricity.

    Does FERC have the legal authority to implement these new climate-related policies and, by doing that, dramatically expand the scope of its regulatory activities? J. Kennerly Davis, Jr. and Bernard McNamee joined us for a probing, wide-ranging discussion of the statutes and case law that provide the answer to this vitally important question.

    Featuring:
    - J. Kennerly Davis, Jr., Former Senior Attorney, Hunton Andrews Kurth LLP; Former Deputy Attorney General for Virginia
    - Bernard L. McNamee, Partner, McGuireWoods LLP; Former Commissioner, Federal Energy Regulatory Commission

    Visit our website – www.RegProject.org – to learn more, view all of our content, and connect with us on social media.

    • 1 hr 1 min

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