Fifth Circuit's Reversal on Katrina Litigation Leaves Flood Victims Gasping for Air

by Robert Verchick | September 27, 2012

I’ll forego reporting on India today to address a new development in the post-Hurricane Katrina litigation: Judge Jerry Smith’s breathless hairpin turn in the “Katrina Canal Breaches Litigation.” On Monday, Judge Smith, writing for a three-judge panel of the Fifth Circuit U.S. Court of Appeals, dismissed a lawsuit against the U.S. Army Corps of Engineers for flood damage during Hurricane Katrina, a case that could have exposed the federal government to billions of dollars in damages over the next several years. Judge Smith’s opinion reversed a decision he wrote just six months ago, representing the same three-judge panel, which had ruled the plaintiffs’ claims were legitimate and must move forward.

Why the switch? The new opinion suggests it is because the first time around all three judges somehow misunderstood the facts. But that’s unconvincing. A look at the court’s earlier opinion and the trial court’s original findings of fact shows that the Fifth Circuit got it right the first time. What’s more, this sudden reversal could deny thousands of flood victims the means to build back their lives, while narrowing the chances that the government can be held accountable for even the most pedestrian mistakes. I’ll return to these points in a moment, but first some background.

The Katrina Canal Breaches Litigation involves claims by residents of New Orleans and St. Bernard Parish for damages resulting from storm surge allegedly funneled through the Mississippi River Gulf Outlet (MR-GO), ...

New Paper: How Chemicals Manufacturers Seek to Co-opt Their Regulators

by Rena Steinzor | September 27, 2012
This post was written by CPR President Rena Steinzor and Policy Analyst Wayland Radin. Today CPR releases Cozying Up: How the Manufacturers of Toxic Chemicals Seek to Co-opt Their Regulators, exposing the work of the International Life Sciences Institute (ILSI) and Toxicology Excellence for Risk Assessment (TERA), two industry advocacy groups that have undue influence on the regulation of toxic chemicals.  The two firms specialize in a particularly insidious brand of “dirty” science by recruiting EPA experts to co-author papers and ...

The Muddy Arkansas Game and Fish Commission Case

by John Echeverria | September 25, 2012
The most interesting issues to watch in Arkansas Game and Fish Commission v. United States, which the Supreme Court will hear next week on October 3, are ones the parties have not addressed.  The central issue in the case as framed by the principal briefs is whether a temporary increase in the frequency of inundation of floodplain property as a result of government action should give rise to liability under the Takings Clause.  But there are two other  -- arguably ...

New CPR Report: Maryland and Federal Authorities Should Prosecute Water Polluters More Frequently

by Aimee Simpson | September 24, 2012
Today, CPR releases a new white paper examining criminal enforcement of water pollution laws in Maryland.  In Going Too Easy? Maryland’s Criminal Enforcement of Water Pollution Laws Protecting the Chesapeake Bay, CPR President Rena Steinzor and I analyze a number of key questions concerning the critical, deterrence-based enforcement mechanism of criminal prosecution and its role in the Chesapeake Bay restoration efforts: What have water pollution criminal enforcement efforts in Maryland looked like for the past 10 to 20 years? What ...

Food Safety and Worker Safety Advocates Urge Vilsack to Withdraw Poultry Inspection Rule

by Ben Somberg | September 20, 2012
A host of concerned groups and individuals wrote to Secretary of Agriculture Tom Vilsack today urging him to withdraw proposed changes to poultry inspection rules until food safety and worker safety concerns are addressed. The letter was signed by a range of food safety and worker safety groups and individual signers, including CPR Member Scholars Martha McCluskey, Thomas McGarity, Sidney Shapiro, and Rena Steinzor. The letter explains the food safety and worker safety issues at stake, and takes USDA to ...

Supersized Drinks, Social Welfare, and Liberty

by Daniel Farber | September 19, 2012
Cross-posted from Legal Planet. Obesity is an environmental issue because the food system (from farm to table) uses a lot of energy and produces significant water pollution. More food equals a bigger environmental footprint. Sweetened soft drinks are a good example: they use corn sweetener, and corn production has a large footprint because so much fertilizer is required. There is a growing epidemic of obesity and of childhood obesity in particular. The New Scientist has a very thoughtful review of ...

Navigating the High Seas: Why the U.S. Should Ratify the Law of the Sea Treaty

by Rebecca Bratspies | September 18, 2012
a(broad) perspective Today’s post is the last in a series on a recent CPR white paper, Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties.  Each month, this series will discuss one of these treaties.  Previous posts are here. United Nations Convention on the Law of the Sea (UNCLOS) and Agreement Relating to the Implementation of Part XI of the Convention Adopted and Opened for Signature on December 10, 1982. Agreement on Part XI Adopted ...

What Does The Indian Public Think About Climate Change?

by Robert Verchick | September 17, 2012
I had been wondering what ordinary people in India think about climate change. So last week on my ride home from the office, I asked my auto-rickshaw driver. He was a talkative guy, bearded, with black spectacles and a navy blue turban. He had been keen on identifying for me the many troubles a man like him endures on the subcontinent. “Too many people!” he shouted, his voice competing with the cab’s rattling frame and the bleats of oncoming horns. ...

Key EPA Air Pollution Rule Runs Past 120 Day Deadline at White House

by Ben Somberg | September 15, 2012
The Administration has just missed another deadline on issuing the final revised “boiler MACT” rule. The revised version of the rule will provide less pollution reduction than the original version, but is still expected to prevent thousands of deaths each year. The EPA had pledged for many months that the rule would be finalized in April. It later said the rule would be finalized in the “spring.” On May 17, the agency sent the rule to the White House’s Office of Information ...

New CPR White Paper: How Agricultural Secrecy Gives Agribusiness a Federally Funded Free Ride

by Yee Huang | September 14, 2012
Agricultural producers in the United States receive billions of dollars in federal subsidies, crop insurance, conservation payments, and other grants.  Defying fundamental principles of transparency and openness in a democracy, the U.S. Department of Agriculture (USDA) is authorized to keep secret much of the basic information that farmers provide to qualify for this public funding.  Congress granted this unprecedented loophole in the nation’s sunshine laws by inserting section 1619 into the 2002 Farm Bill and later amending it in the ...

The Unpopularity of Cost-Benefit Analysis

by Rena Steinzor | September 14, 2012
If cost-benefit analysis (CBA) is really part of the furniture, you wouldn’t think recently departed OIRA Administrator Cass Sunstein would need to dedicate a column to convincing us it’s so. But there it is, and though Sunstein is now but a private citizen like the rest of us, the claims merit a response. We’re told “cost-benefit analysis has become part of the informal constitution of the U.S. regulatory state,” but that’s some odd constitution – not approved by any legislative ...

Keeping the Independent Agencies Independent

by Emily Hammond | September 13, 2012
The proposed Independent Agency Regulatory Analysis Act, S. 3468, is a troubling idea. As Rena Steinzor explained here when the bill was introduced, it would authorize the President to bring independent agencies under the purview of OIRA.  This proposal is worrisome given the persistent flaws inherent in OIRA’s cost-benefit approach; extending the reach of a poorly functioning process is hard to justify.  But even more problematic is where S. 3468 treads:  the domain of independent agencies.  This development calls for ...

Bill Clinton: After Oklahoma City Bombing, I Promised Myself I Would Never Bash Government Bureaucrats

by Ben Somberg | September 12, 2012
Former President Bill Clinton, campaigning for President Obama in Florida on Tuesday, the 9/11 anniversary, offered a passionate defense of government employees, the AP noted. I was curious about the whole quote, so I watched and wrote it out (via C-SPAN, at 34:55): On this day, of all days, we should know that there are good and noble people who work for the government. I remember when the Oklahoma City bombing occurred – which, before 9/11, was the biggest terrorist ...

Everywhere, All the Time: Why the U.S. Should Ratify 3 International Agreements on Persistent Organic Pollutants

by Mary Jane Angelo | September 07, 2012
a(broad) perspective Today’s post is the seventh in a series on a recent CPR white paper, Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties.  Each month, this series will discuss one of these treaties. Previous posts are here. Persistent Organic Pollutants (POPs) are toxic substances that remain in the environment for long periods of time. They travel long distances via the wind and water and bio-accumulate in the food chain. POPs have been found ...

Romney Falsely Claims Health Benefits of Utility MACT Are Due to Bankrupting Coal Companies -- Not Pollution Reduction Equipment

by Ben Somberg | September 06, 2012
Mitt Romney added a new twist Tuesday to false right-wing claims about the EPA’s regulation limiting mercury and other pollutants from coal power plants.  EPA estimated that the “utility MACT” will have annual monetized benefits of $37-90 billion and costs of $9.6 billion. A critique we’ve heard over and over again from the industry and its supporters goes something like this: “But only $6 million of those benefits come from reducing mercury pollution, the top target of the rule!” It’s sort of ...

TSCA Reform and the Presidential Election

by Noah M Sachs | September 06, 2012
When Barack Obama took office, reform of U.S. chemical regulation appeared to be an area of some bipartisan agreement, especially when compared to climate change, where it was clear a contentious fight would loom on Capitol Hill.  Prominent Members of Congress had called for reform of the outdated Toxic Substances Control Act (TSCA) of 1976, EPA Administrator Lisa Jackson soon laid out the Administration’s key principles for TSCA reform, and the largest chemical industry trade association acknowledged that TSCA needed ...

The Republican Platform’s Plan to Eviscerate Environmental Protection

by Daniel Farber | September 05, 2012
Ben Somberg posted here recently about the Republican platform and the environment. He noted that the platform uses a discredited estimate of regulatory costs, calls for making environmental regulations into guidance documents for industry, and proposes a moratorium on new regulations for the indefinite future. Unfortunately, that’s only the tip of the iceberg. If you can think of an anti-environmental measure proposed by any Republican since Reagan took office, there’s a good chance you’ll find it tucked away somewhere in this ...

Regulation as a Dynamic Macroeconomic Enterprise

by David Driesen | August 30, 2012
Reposted from RegBlog. Traditionally, the field of law and economics has treated government regulation as if it were a mere transaction. This microeconomic approach to law assumes that government regulators should aim to make their decisions efficient by seeking to equate costs and benefits at the margin. As I argue in a new book, The Economic Dynamics of Law, the microeconomic model of government regulation misconceives the essence of regulation. Government regulation produces not an instantaneous transaction, but a set of ...

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