Energy & Environment


Environmental regulations seek to foster the responsible use of our planet’s natural resources while ensuring clean air, unpolluted water, and a protected environment. While these goals have notable public support, reasonable people differ on the best methods to protect the environment and public debate on the effectiveness of current policies is common. Are there more effective and less burdensome ways to accomplish these vital goals?

A Long and Winding Road: How the National Environmental Policy Act Has Become the Most Expensive and Least Effective Environmental Law in the History of the United States, and How to Fix It

October 16, 2018

In this paper, Mark Rutzick discusses the National Environmental Policy Act, explores how it has developed since its enactment in 1970, examines the costs and burdens it imposes, and proposes potential solutions.

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We Need Smarter Regulation of Food and Agricultural Biotechnology

September 27, 2018

In this paper, John Cohrssen and Henry Miller discuss the current state of biotechnology regulation, the potential benefits of smarter regulation of such technology, and a possible path forward.

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Repeal the Jones Act for American Energy

September 28, 2017

In this paper, James Coleman explores the Jones Act and argues that repealing the almost-hundred-year-old law “could be a confidence-building measure toward freer trade, less costly regulation, and less government interference in energy markets.”

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Restoring Meaningful Limits to “Waters of the United States”

September 26, 2017

In this paper, Daren Bakst, Mark Rutzick, and Adam White explore the EPA’s recent “Waters of the United States” rule and argue that such an approach “imposes immense costs and burdens on private property rights and on economic growth.”

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Explainer Episode 29 – The EPA’s Methane Emissions Rule

August 5, 2021

Professor Jonathan Adler discusses a recently-enacted law that repealed changes to EPA methane emissions regulations made by the Trump administration.

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Deep Dive Episode 190 – The Implications of the Latest Congressional Review Act Disapprovals

July 19, 2021

Todd Gaziano and Professor Jonathan Adler discuss the CRA and the ramifications of its use on the three rules this year.

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Deep Dive Episode 184 – Federalism or a Federal Standard? Fuel Economy and Greenhouse Gas Emissions Standards

June 28, 2021

An expert panel discusses the ongoing debates over whether federal agencies should enforce a national standard for automobile fuel economy and greenhouse gas emissions.

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Explainer Episode 23 – Why Did Texas Lose Power?

February 19, 2021

Professor James W. Coleman joins the podcast to break down the regulatory dynamics of the rolling blackouts Texans have experienced this week.

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Deep Dive Episode 160 – The Myths and Facts Regarding the EPA’s Benefit-Cost Analysis and Science Transparency Rules

February 1, 2021

In this live podcast, subject-area experts examine the likely real-world impact of two new EPA rules.

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Deep Dive Episode 138 – It Can Be Done Live: The Future of Our Earth

October 15, 2020

An expert panel explores the potential of human ingenuity to solve the problems facing our earth and the conditions necessary to make those solutions a reality.

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Deep Dive Episode 135 – Evaluating the EPA’s Proposals to Retain the Existing Particulate Matter and Ozone Standards

October 7, 2020

Experts discuss the EPA’s recent proposals to retain both the existing particulate matter and ozone primary and secondary standards.

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Deep Dive Episode 132 – A Conversation with EPA Administrator Andrew Wheeler: New Rule on Guidance Procedures and More

September 21, 2020

This live podcast features EPA Administrator Andrew Wheeler and Jeffrey Holmstead discussing the EPA’s recent rulemaking regarding agency guidance documents.

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Deep Dive Episode 128 – Can States Trump Interstate Commerce?

August 27, 2020

Experts explore state laws and regulations that expand states’ reach into national and international affairs, and go on to discuss different interpretations of the Constitution regarding the role of the judiciary in evaluating such laws.

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Deep Dive Episode 111 – The Truth About the EPA’s Science Transparency Rule

May 15, 2020

Richard Belzer, Daren Bakst, and Adam White discuss a proposed rule that would require the EPA to make public important information underlying both significant regulatory actions and influential scientific information disseminated by the Agency.

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Deep Dive Episode 100 – The Limits of EPA Authority: Supplemental Environmental Projects

April 6, 2020

Do SEPs violate the Miscellaneous Receipts Act and other laws intended to preserve Congress’ constitutional power of the purse?  Jeffrey Clark discusses this isue and more in this Deep Dive episode.

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Deep Dive Episode 93 – The Future of the National Environmental Policy Act

March 9, 2020

In this episode, Professors David Adelman and James Coleman discuss the recently proposed changes to the NEPA process and examine the potential effects.

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Deep Dive Episode 92 – The Constitutionality of California’s Cap and Trade Agreement with Quebec

March 4, 2020

In this episode, James Coleman and Sharmila Murthy discuss the constitutionality of California’s cap and trade agreement with Quebec.

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Deep Dive Episode 90 – The New Definition of WOTUS

February 24, 2020

In this episode, Daren Bakst, Tony Francois, and John Paul Woodley discuss the new definition of WOTUS and its potential impacts.

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Deep Dive Episode 82 – A Preview of County of Maui, Hawaii v. Hawaii Wildlife Fund

November 12, 2019

In this episode, Brianne Gorod, Glenn Roper, and Donald Kochan discuss the implications of the recently argued Supreme Court Case County of Maui, Hawaii v. Hawaii Wildlife Fund, which touched issues of interpretation in the enforcement of the Clean Water Act.

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Deep Dive Episode 73 – Balancing Federal and State Authority in Energy Policy

October 15, 2019

In this episode, Gordon A. Coffee and Ari Peskoe discuss recent conflicts between state and federal authorities surrounding different approaches to energy regulation.

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Deep Dive Episode 67 – The New Endangered Species Act Regulations

September 5, 2019

Recently, the U.S. Fish and Wildlife Service and the National Marines Fisheries Service finalized several new Endangered Species Act regulations. In this episode, Jonathan Wood speaks to Daren Bakst on some of the controversy and legal challenges surrounding those new rules.

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Explainer Episode 3 – EPA’s New Clean Air Act Rules

September 4, 2019

What does the Clean Air Act authorize EPA to regulate, how much discretion does EPA have in regulating emissions, which plan more closely fits the intent of the original law? These and other questions are taken up in this engaging discussion.

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Explainer Episode 1 – The Green New Deal

August 22, 2019

In this inaugural episode of the Regulatory Transparency Project’s Explainer podcast series, James Coleman and Ann Carlson discuss the merits and implications of the Green New Deal.

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Deep Dive Episode 63 – Agency Rulemaking: Unnecessary Delegation or Indispensable Assistance?

July 10, 2019

What are the advantages and disadvantages of such a system? Should specialized bureaucrats do the lion’s share of rulemaking? Or should elected Senators and Congressman, often without the same level of expertise, write the rules that govern our nation? In this episode, experts discuss these questions and more.

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Deep Dive Episode 60 – Juliana v. United States

June 25, 2019

Juliana v. United States is a pending lawsuit in which a group of minors alleges that the government has violated their right to a stable climate under the 5th Amendment. In this episode, experts discuss the recent oral arguments in the case, the potential outcome, and the constitutional implications of the case.

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Deep Dive Episode 50 – Analyzing the New Proposed Rule Defining “Waters of the United States”

May 10, 2019

For decades, the EPA and Corps have struggled to come up with a proper definition that is both consistent with the plain language of the statute, respects the state role in addressing water pollution, and is consistent with the rule of law. In this episode, experts will discuss a recently proposed rule defining “waters of the United States” and its implications.

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Deep Dive Episode 43 – Re-Considering Co-Benefits in Environmental Regulation

April 9, 2019

In this episode, Adam Gustafson and Daniel Farber discuss various approaches to considering co-benefits in the cost-benefit analyses of new air pollution regulations, and whether the standing approach is the most efficient and cost-effective.

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Deep Dive Episode 33 – Visiting the EPA’s CAFE: What’s on the Menu for Fuel Economy and Greenhouse Gas Standards?

June 29, 2018

Sean H. Donahue (Goldberg & Weaver), Jacqueline Glassman (King & Spalding), and James Conde (Boyden Gray & Associates) discuss the potential legal, political, and economic consequences of the EPA’s proposed rollback of fuel economy and greenhouse gas standards.

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Deep Dive Episode 29 – Analyzing how EPA is Addressing “Secret Science”

April 24, 2018

Daren Bakst (The Heritage Foundation) and Richard B. Belzer Ph.D. discuss EPA Administrator Scott Pruitt’s recent announcement on “secret science” and “how transparency in government can be strengthened and better inform policymaking.”

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Deep Dive Episode 19 – Does the Migratory Bird Treaty Act Prohibit Incidental or Accidental Killing?

January 17, 2018

Gary Lawkowski (Department of the Interior) discuss the Migratory Bird Treaty Act and how this regulatory space has evolved over the years.

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The Implications of the Latest Congressional Review Act Disapprovals

July 28, 2021

Professors Jonathan Adler and Todd Gaziano discuss the CRA and its use on 3 rules earlier this year.

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Are Fuel Economy Standards Useful in Lowering Carbon Pollution?

January 25, 2021

Are fuel economy regulations the best tool to reduce pollution? How do they affect consumer behavior, and do they have hidden costs?

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It Can Be Done Live: The Future of Our Earth

October 15, 2020

The creators of the award-winning documentary, They Say It Can’t Be Done, in partnership with the Federalist Society’s Regulatory Transparency Project, present It Can Be Done Live – a conversation between entrepreneurs, regulatory experts, and noted academics around creative and bipartisan solutions to global challenges to our shared future. The third of four panel events, It Can Be Done Live: The Future of Our Earth, took place on September 24th, 2020.

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A Conversation with EPA Administrator Andrew Wheeler: New Rules on Guidance Procedures and More

September 21, 2020

In May, the Environmental Protection Agency announced a new proposed rule to “establish the procedures and requirements for how the U.S. Environmental Protection Agency (EPA) will manage the issuance of guidance documents subject to the requirements of the Executive Order entitled ‘Promoting the Rule of Law Through Improved Agency Guidance Documents.’” The EPA indicated that they “intended to increase the transparency of EPA’s guidance practices and improve the process used to manage EPA guidance documents.” The comment period for the proposed rule closed in late June.

On September 14, 2020, the Regulatory Transparency Project hosted an informative conversation with Administrator Wheeler and Jeffrey Holmstead.

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Does Federal Permitting Under the National Environmental Policy Act Need Reform?

March 5, 2020

The National Environmental Policy Act (NEPA) was designed to regulate federal infrastructure projects to minimize harmful environmental impact. Over time, the review process has become lengthy and costly. This process has delayed or condemned needed construction of roads, pipelines, and power lines.

In this video, Professor James Coleman discusses possible benefits of NEPA reform, while explaining why the issue is hotly debated. He proposes a new way of formulating the question that could be discussed without resorting to partisanship.

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Agency Rulemaking: Unnecessary Delegation or Indispensable Assistance?

July 19, 2019

On June 18, 2019, the Federalist Society’s Article I Initiative and Regulatory Transparency Project hosted a panel on “Agency Rulemaking: Unnecessary Delegation or Indispensable Assistance?” at the National Press Club in Washington DC.

In his recent article, “Strategic Institutional Positioning: How We Have Come to Generate Environmental Law Without Congress,” Donald Kochan lays out the argument that delegation of authority to agencies serves the interests of both sides of Congress. What are the advantages and disadvantages of such a system? Should specialized bureaucrats do the lion’s share of rulemaking? Or should elected Senators and Congressman, often without the same level of expertise, write the rules that govern our nation?

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The Jones Act: Debating the Lingering Effects of a 100-Year-Old Law

July 2, 2019

Passed into law in 1920, the Jones Act is a ban on transport between two U.S. ports, unless it’s on a U.S.-built, U.S.-manned, U.S. flagged, and U.S.-owned ship. The Jones Act was designed to protect the United States’ shipbuilding industry and to ensure that U.S. waters and ports are safe and secure. Some argue, however, that in the context of the modern shipping economy the Jones Act does little to protect national security and, instead, raises prices on U.S. consumers and businesses.

In this Fourth Branch video, James Coleman (Dedman School of Law) and George Landrith (Frontiers of Freedom Institute) discuss the Jones Act’s history, debate its impact on American society today, and explore whether the Jones Act should be updated for today’s economic and national security needs.

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Waters of the United States: Interpreting the Clean Water Act

December 17, 2018

What is the Clean Water Act? Have historical interpretations of its scope changed over the years? What are the practical effects of those interpretations on the environment, farmers, and landowners? How is this issue relevant today? Donald Kochan and Robert Glicksman explore these questions as they discuss the scope of the Clean Water Act.

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2018 JLEP Symposium: Creative Regulators and Environmental Protection

March 7, 2018

Government regulation is intended to improve the efficiency of markets and protect people from harms they cannot identify or prevent on their own. But, for decades, advocates have debated whether the regulatory process and rules developed through it are too strict or too lax; whether they properly account for all the things society values; and even whether they make society better or worse off on balance. The Journal of Law, Economics & Policy’s Symposium on Regulatory Reform, Transparency, and the Economy explored these and related questions as leading scholars and practitioners examined a number of recent regulatory proposals impacting a broad swath of the American economy – from banking and finance to energy and the environment, and from employment law to the internet economy. Speakers considered and debated how well these proposals would perform their intended functions and how they might be improved.

The symposium featured discussions of research papers prepared by experts working on the Federalist Society’s Regulatory Transparency Project. The proceedings of the Conference were published in a special symposium issue of George Mason’s Journal of Law, Economics & Policy.

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Time to Reform the Jones Act?

February 26, 2018

Section 27 of the Merchant Marine Act of 1920, colloquially known as the Jones Act, requires that shipments between two U.S. ports be on U.S.-built, U.S.-manned, and U.S.-owned vessels. Because of the Jones Act, it is often more expensive to ship supplies between U.S. ports than it is to ship supplies abroad. The Act was adopted in 1920 to support naval preparedness by boosting the U.S. shipbuilding industry.

But is it time to scale back the Jones Act? The U.S. energy export boom is leaving U.S. consumers behind because it is cheaper to ship oil and liquefied natural gas all the way to Europe or Asia than to the U.S. East Coast. And the Jones Act, long a drag on Puerto Rico’s economy, is also raising the cost of all the aid necessary to help the island recover from Hurricane Maria. This expert panel explores the Jones Act controversy and discusses whether it can be reformed without endangering national security.

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Litigation Update: Dakota Access Pipeline Case Gives Supreme Court Chance for Major NEPA Ruling

Mario Loyola

October 1, 2021

This case gives the Court an opportunity for a major ruling on one of the country’s most impactful environmental laws.”

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Strengthening the Information Quality Act to Improve Transparency and Regulatory Quality

Richard B. Belzer

April 30, 2021

In a recent Food and Drug Law Journal article, the Heritage Foundation’s Daren Bakst discusses how to strengthen the Information Quality Act (IQA), a law that could help to improve both the transparency and quality of information disseminated by federal agencies, and improve federal rulemaking that relies on this information.

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How Bad Regulations Harm the Environment

Daren Bakst

April 6, 2021

In a recent blog post for the New Civil Liberties Alliance entitled “Bad Regulations Destroy Our Environment,” Harriet Hageman describes the regulatory failures that created the perfect “environment” for the catastrophic forest fires that plagued the interior west for much of 2020.

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The EPA Should Properly Address the Abuse of Ancillary Benefits in CAA Rulemaking

Daren Bakst

November 20, 2020

When the EPA finalizes its recently proposed rule on the consideration of costs and benefits in CAA rulemaking, the agency should clarify that there are limits to applying indirect benefits, also known as “ancillary benefits” or “co-benefits,” in regulatory decision-making.

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EPA’s Section 401 Rule Respects Federalism While Addressing State Abuses

Daren Bakst

June 2, 2020

A central feature of the Clean Water Act (CWA) is cooperative federalism.  In fact, right at the start of the statute, Congress made it clear that states are expected to take the leading role in addressing water pollution.

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Climate and the Courts: Juliana Oral Arguments

James W. Coleman

August 27, 2019

How much can the federal courts do on a climate change? If you want more climate regulation than Congress is willing to provide, it’s an urgent question. The most recent and most ambitious climate lawsuit is Juliana v. United States, a lawsuit by children asking the courts to order the government to aggressively regulate carbon emissions. These plaintiffs argue that they have unwritten constitutional and federal common law rights to a stable climate and that the government must uphold these rights by imposing limits on private carbon emissions. The Ninth Circuit recently heard their argument and its upcoming decision will help define the outer boundaries of what the courts can do on climate change.

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Defining the “Waters of the United States”

Daren Bakst

April 23, 2019

To help provide important information and analysis on this proposed rule, the Federalist Society hosted a teleforum entitled “Analyzing the New Proposed Rule Defining ‘Waters of the United States.”

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EPA Reconsiders its Use of Co-Benefits in Cost-Benefit Analysis

Adam Gustafson

January 16, 2019

In the last days of 2018, EPA invited comment on a proposal (the revised Supplemental Cost Finding for the Mercury and Air Toxics Standards) that could change the way regulatory benefits are calculated for some of its biggest rules. The immediate reach of the proposal is narrow. But it raises important questions about the proper consideration of regulatory costs and benefits, and its implications should be considered carefully.

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Originally Speaking: Climate Change and Common Law Public Nuisance

Daniel Lungren, Donald Kochan, Patrick Parenteau, Richard Faulk, and John Baker

December 7, 2018

Originally Speaking is a written debate series that approaches a contemporary topic from diverse perspectives. The Federalist Society takes no position and encourages a clear and constructive exchange on the subject. Posts in an OS series chain off of each other in waves, creating a loose stream of dialogue.

The focus of this series is if climate change is eligible for common law public nuisance claims, as articulated in the lawsuits by CA and NY municipalities against several major oil and gas companies. We hope you enjoy this Originally Speaking series.

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Why Environmental Reviews Take So Long… And How We Can Speed Them Up

James W. Coleman

October 18, 2018

On January 1, 1970, President Nixon signed the National Environmental Policy Act (NEPA) into law. The law requires that the government issue a report—known as an environmental impact statement—before taking major federal actions that significantly impact the environment. NEPA is not a substantive environmental standard; the government can approve a harmful project. It is merely procedural, reflecting the sensible adage “look before you leap.”

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Another Court Rules Against Regulation-by-Litigation in Climate Change Public Nuisance Lawsuits

Donald Kochan

July 20, 2018

On July 19, the U.S. District Court for the Southern District of New York dismissed the lawsuit brought by the City of New York and others against several large oil companies.  The lawsuit claimed those companies were responsible for public and private nuisances under federal common law for the transboundary effects of emissions causing climate change.   These municipality lawsuits for climate change are the subject of a Federalist Society Environmental Law & Property Rights Practice Group podcast  from  July 3, titled “Municipality Lawsuit on Climate Change and Public Nuisance: Litigation Update.”

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N. District of California: Elected Branches of Government Are the Proper Channels for Addressing Climate Change

Andrew Varcoe

July 12, 2018

In a trenchant Los Angeles Times opinion piece, Chapman University law professor and constitutional law expert Donald Kochan assesses an important recent decision rendered by Judge William Alsup of the U.S. District Court for the Northern District of California in two controversial climate-change lawsuits brought by Oakland and San Francisco against a small subset of the world’s energy companies.

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Why is EPA’s Transparency Proposal Controversial?

Eileen J. O'Connor

May 24, 2018

The proposed rule was welcomed by those who believe it will improve rulemaking and public understanding of it.

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Public Lands: Pride, Place, Proximity & Power

Donald Kochan

April 9, 2018

Professor Donald Kochan has a new article on public lands and federalism just published in Volume 25, Issue 1, Page 1, by the Virginia Journal of Social Policy & the Law. The full article, Public Lands: Pride, Place, Proximity & Power, can be downloaded here. Here is the abstract.

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High Stakes in “Waters of the United States” Rulemaking

Donald Kochan

October 3, 2017

The WOTUS debate raises a lot of big issues. “Restoring Meaningful Limits to ‘Waters of the United States'” offers a good summary of the stakes involved in getting the definition right.

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Jones Act Waived for Puerto Rico – RTP Expert Argues for Complete Repeal

Devon Westhill

September 28, 2017

Today, President Donald J. Trump waived the requirements of the Merchant Marine Act of 1920 – better known as the Jones Act – for Hurricane-battered Puerto Rico. The waiver takes effect immediately.

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Improving How Science is Used in Environmental Regulation

Susan Dudley

July 13, 2017

Effective regulatory policy that focuses resources on addressing real threats to public health and the environment depends on reliable scientific information and transparent policy choices.

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