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Freeman, Jody

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Freeman, Jody

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Author's Publications: search.filters.isAuthorOfPublication.8a81d0de-2415-46ac-9ba3-ea48ff3c1a7d

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    The Anti-Democratic Major Questions Doctrine
    (University of Chicago Press, 2023-06-01) Freeman, Jody; Stephenson, Matthew C.
    West Virginia v. Environmental Protection Agency is the Supreme Court’s most important administrative law decision in decades. The opinion’s significance is due principally to the Court’s embrace of an aggressive version of the so-called “major questions doctrine” (MQD), which appears to require unusually explicit statutory authorization before agencies may undertake “major” regulatory actions. The West Virginia Court claims that this strong MQD is based on longstanding precedent, and that its use has salutary effects on the policymaking process. Neither claim is accurate. In Part I of this Article, we show that the strong version of the MQD embraced by the West Virginia Court is in fact relatively new; the extent of the doctrinal innovation is obscured by the fact that the MQD label has been unhelpfully attached to several related but distinct interpretive techniques, which we disentangle. In Part II, we turn to the impact of this new MQD on the policymaking process, focusing in particular on democratic accountability. While the MQD’s proponents claim that this doctrine protects separation-of-powers principles and the prerogatives of Congress, in fact the new MQD is more likely to weaken democratic accountability by shifting power from the elected branches to the courts, undermining transparency, and exacerbating the already excessive tendency toward minoritarian obstruction in Congress. The West Virginia Court’s aggressive MQD would likely have other effects; perhaps most importantly, this version of the MQD makes it much more difficult for the federal government to address new problems under broadly worded statutes. Both the MQD’s supporters and its detractors anticipate that the doctrine will result in less, and less aggressive, federal regulation. For purposes of this Article, though, our critique of the MQD focuses less on its impact on policy outcomes (though we think this is very important), and more on the impact of the MQD on the policymaking process, especially the extent to which the MQD makes that process less democratic.
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    Massachusetts v. EPA: From Politics to Expertise
    (University of Chicago Press, 2007) Freeman, Jody; Vermeule, Cornelius
    In Massachusetts v. Environmental Protection Agency (2007), the Supreme Court held, among other things, that the EPA has statutory authority to regulate greenhouse gases under the Clean Air Act, and that the agency cannot decline to do so on political grounds. We analyze the logic of MA v. EPA and its broader implications for administrative law and regulatory policy. We locate MA v. EPA in the context of the Justices' increasing worries about the politicization of administrative expertise, particularly under the Bush administration. The majority's solution for this worry, we suggest, is a kind of expertise-forcing: the Court attempts to ensure that agencies actually do exercise expert judgment, and that they do so free from outside political pressures, even or especially political pressures emanating from the White House or political appointees in the agencies. Whereas a line of caselaw and commentary stemming from Chevron USA Inc. v. Natural Resources Defense Council sees presidential politics and expertise as complementary, expertise-forcing has its roots in an older vision of administrative law, one in which presidential politics and expertise are fundamentally antagonistic. Because the Court subjects the denial of a rulemaking petition to hard look review, we suggest that MA v. EPA is State Farm for a new generation.
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    Timing and Form of Federal Regulation: The Case of Climate
    (University of Pennsylvania, 2007) DeShazo, J.R.; Freeman, Jody
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    Modular Environmental Regulation
    (Duke University School of Law, 2005) Freeman, Jody; Faber, Daniel
    This Article proposes a "modular" conception of environmental regulation and natural resource management as an alternative to traditional approaches. Under traditional approaches, agencies tend to operate independently, and often at cross-purposes, using relatively inflexible regulatory tools, without significant stakeholder input, and without institutional mechanisms capable of adapting to changing conditions over time. Modularity, by contrast, is characterized by a high degree of flexible coordination across government agencies as well as between public agencies and private actors; governance structures in which form follows function; a problem-solving orientation that requires flexibility; and reliance on a mix of formal and informal tools of implementation, including both traditional regulation and contract-like agreements. The Article frames the enterprise of environmental regulation and resource management as an exercise in designing governance institutions capable of managing multiple and seemingly incompatible demands over the long term. This approach departs from the traditional legal framing of such environmental conflicts as shorter-term and zero-sum questions of jurisdiction, authority, entitlement, and prohibition. To illustrate modularity, the Article presents a detailed case study of the CalFed Bay-Delta Program, a multiagency effort to address competing demands on the water resources in the San Francisco Bay Delta. The story of CalFed illustrates many features of the modular ideal identified in the Article, and shows concretely how such an approach can achieve both procedural and substantive policy innovation while also producing measurable environmental improvements on the ground. The case study anchors the elaboration of the modular conception and its constituent elements presented in the latter part of the Article. Finally, the Article analyzes why the modular ideal is so hard to achieve in practice, yet it concludes that there is no alternative to moving toward modularity given the complex nature of the environmental and natural resource problems that we face.
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    Old Statutes, New Problems
    (University of Pennsylvania, 2014) Freeman, Jody; Spence, David B.
    Congress is more ideologically polarized than at any time in the modern regulatory era, which makes legislation ever harder to pass. As a result, Congress is increasingly absent from the policymaking process, and fails to regularly update statutes in the face of social, economic and technological change. This leaves agencies to adapt old statutes to new problems. The challenge of managing statutory obsolescence affects many agencies, and arises in areas as diverse as financial, telecommunications, and food and drug regulation. We examine this dynamic in two fast-moving policy domains, environmental and energy regulation, where Congress has been remarkably absent in recent decades. Contrary to what some might suspect, we find that agencies manage these statutory fit problems carefully, strategically and often with deliberate restraint. Rather than “going for broke,” they tend to choose policies that stop short of open conflict with Congress, yet reflect the agency’s mission, the president’s priorities, and the limits of their statutory authority. We show how, following the Goldilocks principle, agencies seek to get it “just right.” We then explore the implications of this dynamic — in which agencies are the primary statutory updaters — for the institutions in our Separation of Powers scheme: the president, Congress, the courts and the agencies. We argue that the absence of Congress from the policy process can inure to the president’s benefit in the contest to shape agency decisions, especially when the president’s priorities are consistent with the agency’s traditional mission, meaning that the White House and agency are aligned. Finally, we focus on what this new strategic environment of agency policymaking means for judicial review of agency efforts to update the regulatory regime. We argue that, for a variety of reasons, agencies are better suited than courts to do that updating work, and that the case for deferring to agencies in that task is stronger than ever with Congress absent from the updating process. Our account also challenges the view that courts should return important regulatory matters to Congress rather than allow agencies to adapt statutes, because to do so is “democracy forcing.” We argue that the normative commitment to democracy forcing is based on a flawed empirical assumption about the probability of congressional action. Indeed, because the agency is the legally designated custodian of the statute (so designated by the enacting Congress), the agency may have the superior claim to interpret the statute’s application to new problems during periods of congressional quiescence.
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    Why I Worry About UARG
    (Harvard University, Harvard Law School, 2015) Freeman, Jody