The Surprising Evolution of Federal Stream Protections

by Dave Owen | May 05, 2016

Originally published on Environmental Law Prof Blog by CPR Member Scholar Dave Owen.

Right now, the United States' second-most-heated environmental controversy—behind only the Clean Power Plan—involves the Clean Water Rule, which seeks to clarify the scope of federal regulatory jurisdiction under the Clean Water Act. According to its many opponents, the rule is one big power grab. EPA and the Army Corps of Engineers, according to the standard rhetoric, are unfurling their regulatory tentacles across the landscape like some monstrous kraken, with devastating consequences for key sectors of the American economy.

In a forthcoming article, I argue that this rhetoric is false, and that it also misses a much more interesting true story. The Clean Water Rule is indeed part of a major regulatory transformation, which has extended and transformed regulatory protections for small streams. But the Clean Water Rule is just a small part of that transformation. Some of the most important events occurred earlier, in places and under presidential administrations that are not typically seen as founts of environmental progress. A simple story of regulatory overreach (or, conversely, regulatory capture) also explains very little of what has happened. Streams have more protection now than they did as recently as the late 1990s. But even as regulatory agencies have extended protections, they also have found ways to accommodate regulated industries in the application of environmental law.

And why might you care? One reason is that this ...

New Paper: Americans Hurt By Forced Arbitration Agreements with Big Banks, Credit Card Companies

by Brian Gumm | May 04, 2016
NEWS RELEASE: New Paper Shows Americans Hurt By Forced Arbitration Agreements with Big Banks, Credit Card Companies Forthcoming Rule from Consumer Financial Protection Bureau Offers Some Solutions, but More Can Be Done to Protect Consumers Opening a checking account or using a credit card is an essential, everyday activity for many Americans, but most financial services are governed by pages of fine print, much of which is difficult to navigate and understand. As a new paper from the Center for ...

The Misleading Argument Against Delegation

by Daniel Farber | May 03, 2016
It's commonplace to say that agencies engage in lawmaking when they issue rules. Conservatives denounce this as a violation of the constitutional scheme; liberals celebrate it as an instrument of modern government. Both sides agree that in reality, though not in legal form, Congress has delegated its lawmaking power to agencies. But this is mistaking an analogy for an identity. It's true, of course, that Congress has given agencies the authority to make rules, which is one aspect of legislative ...

How Conservatives Sell Off the Federal Budget, Bit by Bit, to the Highest Bidder

by James Goodwin | May 02, 2016
Once upon a time, congressional conservatives pretended to care about the appearance, if not the reality, of corruption afflicting the federal budgeting process. Strangely, they chose to act on their sanctimonious outrage by banning earmarks – or legislative instructions that direct federal agencies to spend appropriated funds on certain specified projects – while leaving the much greater problem of "limitations riders" intact. These riders essentially function as the reverse of earmarks by prohibiting federal agencies from spending appropriated funds on certain specified ...

Climate Change Increases Need for Reform of Nonpoint Source Pollution and Stream Flow Approaches

by William Andreen | April 29, 2016
The Clean Water Act has been a success in many ways. The discharge of pollutants from both industrial and municipal point sources has plummeted, the loss of wetlands has been cut decisively, and water quality has improved broadly across the entire nation. Despite all of that progress, many of our waters remain impaired. The primary reason for this lies in the failure of the Clean Water Act to effectively tackle two significant sources of water pollution: nonpoint source pollution (diffuse ...

Reflections on Workers' Memorial Day

by Matt Shudtz | April 28, 2016
Today, a lot of numbers will be thrown around – the staggering number of workers who died gruesome deaths on the job last year, the paltry fines that employers responsible for those deaths paid, the months and years we've waited for Congress to revisit the Occupational Safety and Health Act to make it more relevant to our modern workforce. There's good reason to reflect on those numbers. They tell us something important about our society and our relationship to work. ...

CPR's Mintz Outlines Flaws of House Bill That Would Undercut SEPs

by James Goodwin | April 28, 2016
Center for Progressive Reform Member Scholar Joel Mintz submitted written testimony to the House Judiciary Committee's Subcommittee on Regulatory Reform, Commercial, and Antitrust Law ahead of its hearing this morning on yet another ill-advised bill, the misleadingly named "Stop Settlement Funds Slush Funds Act of 2016." The bill would place arbitrary limits on how the federal government can use funds it obtains through settlement agreements that arise from enforcement actions brought against companies that have violated federal laws and the ...

Genetically Modified Mushroom Moves Forward with No Oversight

by Mollie Rosenzweig | April 22, 2016
Just as we predicted back in December, foods created with CRISPR technology (short for clustered regularly-interspaced short palindromic repeats) are entering the food supply beyond the reach of federal regulators. Last week, the U.S. Department of Agriculture (USDA) announced that it would not regulate white button mushrooms that scientists altered to stop them from browning. The agency's confirmation that it is unable to regulate CRISPR-modified foods confirms that the current statutory scheme for genetically modified foods is not sufficient.  In ...

Saving Endangered Species Requires a Systemic, Nationwide Approach

by Robert Glicksman | April 21, 2016
Yesterday, I joined four other witnesses in testifying about the Endangered Species Act (ESA) at a House Oversight and Government Reform subcommittee hearing. Most of the witnesses and House members who attended focused on a variety of complaints about the ESA's provisions governing listing and delisting of species and called for changes to the law and the ways in which it is administered. In doing so, they missed the larger point about efforts to save endangered and threatened species: we ...

Heinzerling Calls Out Misleading Cost Claims on Environmental Regulations

by Brian Gumm | April 21, 2016
Lisa Heinzerling, a Center for Progressive Reform Member Scholar and Georgetown University Professor of Law, published a piece this week on The Conversation that explores the ongoing political debate over environmental regulations.  In particular, Heinzerling calls out the often misleading claims about the costs of safeguards that protect our air, water, health, and wild places:  Specifically, the [2010 Small Business Administration regulatory costs] study misinterpreted a World Bank database and drew unsupportable conclusions from it. The study also included the ...

CPR's Glicksman Testifies on Endangered Species Act

by Matthew Freeman | April 20, 2016
Center for Progressive Reform Member Scholar (and board member) Rob Glicksman is on Capitol Hill testifying before the House Oversight and Government Reform Committee’s subcommittee on the Interior this afternoon at 2 pm ET. The hearing will focus on “barriers to delisting” of species under the Endangered Species Act. He’ll cover four major points in his testimony, which he summarizes thusly: First, the Endangered Species Act (ESA) has achieved considerable success in achieving its conservation goals. Second, budgetary constraints have prevented the two agencies ...

On Regulatory Reform, It's Now Warren vs. Sunstein

by James Goodwin | April 19, 2016
Several weeks ago, Sen. Elizabeth Warren delivered perhaps the most important speech on the U.S. regulatory system in recent memory at a forum on regulatory capture organized by the Administrative Conference of the United States. In it, she described how the regulatory system was not working for the people as it should be – or as Congress had intended. Instead, she described how corporate influence over the regulatory process has become so far-reaching and so overwhelming that it has become ...

Chesapeake Bay Program Releases 2015 Watershed Model Estimates

by Evan Isaacson | April 19, 2016
Yesterday, the Chesapeake Bay Program released its latest estimate of nutrient and sediment pollution in the Bay watershed. The annual model run of the program's Watershed Model shows that the estimated nitrogen, phosphorus, and sediment loads decreased by three percent, three percent, and four percent, respectively, compared to 2014 levels. These are important improvements, but much work lies ahead to improve water quality in the Bay and boost the fisheries, wildlife, and recreational activities it supports. The estimated decrease in ...

Good News for North Carolina Coasts

by Eric Panicco | April 18, 2016
Eric Panicco, a candidate for Master of Arts in Sustainability at Wake Forest University, is undertaking an independent study for CPR Member Scholar Sidney Shapiro. On August 3 of last year, the Environmental Protection Agency (EPA) released the Clean Power Plan. It was a historic moment for President Obama, one he commemorated by observing, "We're the first generation to feel climate change, and the last one that can do something about it." Should it survive the inevitable court challenge launched ...

In Advocate Op-Ed, Verchick Explores 'Nonstructural' Adaptation to Climate Change in the Gulf Coast

by Matthew Freeman | April 15, 2016
Center for Progressive Reform President Robert Verchick has an op-ed in The New Orleans Advocate this morning about Gulf Coast efforts to prepare for the effects of climate change that we’re too late to prevent. A New Orleans resident himself, Verchick and his family suffered through Katrina, so he knows what he’s talking about when he says that the Gulf Coast is “staring down the barrel of climate change.” He writes that in addition to large-scale infrastructure projects like fortifying ...

Mercury, MetLife, and Mountaintop Removal

by Lisa Heinzerling | April 14, 2016
How Justice Scalia's Last Canon Is Unhinging Statutory Interpretation Justice Antonin Scalia was, as much as anything else, known for insisting that the text of a statute alone – not its purposes, not its legislative history – should serve as the basis for the courts' interpretation of the statute. Justice Scalia promoted canons of statutory construction – or at least what he deemed the valid ones – as a way of limiting the power of judges by setting rules for ...

New Paper: Best Practices for Protecting, Empowering Vulnerable Communities in Face of Climate Change

by Brian Gumm | April 13, 2016
NEWS RELEASE: New Paper Showcases Best Practices for Protecting, Empowering Vulnerable Gulf Coast Communities in the Face of Climate Change Most Americans understand the importance of curbing greenhouse gas emissions to prevent a climate catastrophe in the future. But many communities are already feeling the effects of our warming planet. Impacts on the Gulf Coast are particularly challenging. In a new paper released today, the Center for Progressive Reform (CPR) highlights recommendations and best practices for protecting and empowering vulnerable communities ...

Porter Ranch Gas Leak Mitigation Program Shows Hints of EPA NextGen Strategies

by Evan Isaacson | April 11, 2016
Last month, the California Air Resources Board released a draft Aliso Canyon Methane Leak Climate Impacts Mitigation Program. The program comes in response to Gov. Jerry Brown’s January 6 proclamation that Southern California Gas be held responsible for mitigating the estimated 100,000 tons of methane released from the gas storage facility at Porter Ranch, which leaked the equivalent of about one-fifth of all other California sources of the powerful greenhouse gas combined over that same period. While this high-profile case ...

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