Federalism at Work: Recent Developments in Public Trust Lawsuits to Limit Greenhouse Gas Emissions

by Alexandra Klass | July 13, 2012

In a CPRBlog post in May 2011, I discussed the lawsuits filed on behalf of children against all 50 states and several federal agencies alleging that these governmental entities have violated the common law public trust doctrine by failing to limit greenhouse gas emissions that contribute to climate change.  The suits were filed by Our Children’s Trust, an Oregon-based nonprofit. The claims sought judicial declaration that states have a fiduciary duty to future generations with regard to an “atmospheric trust” and that states and the federal government must take immediate action to protect and preserve that trust.  At the time, I opined that although these claims were novel and would likely have little, if any, immediate effect on state climate policy, they relied on what has proved to be a flexible and powerful common law doctrine in at least some states.  As a result, I concluded there was likely to be significant variation in results between the states on creating opportunities for a new forum for consideration of climate change harms and potential legal responses.  Now, just over a year later, some lower courts have issued decisions in the cases and, as expected, the results vary widely from state to state.

The public trust doctrine is a concept dating back to Roman law which holds that there are certain natural resources that are forever subject to government ownership and must be held in trust for the use and benefit ...

D.C. Circuit Rejects Developers' Claim that EPA Must Form Small Business Panel

by Lee Ewing | July 12, 2012
In a case that could have far reaching implications for agencies subject to the Regulatory Flexibility Act, the D.C. Circuit Court last month held that an EPA decision not to convene a small business advocacy review panel before issuing a rule was not judicially reviewable.  The decision by Judge Merrick Garland, for a unanimous 3-judge panel, was in National Association of Home Builders (NAHB) v. EPA. NAHB challenged the EPA’s change of course on an “opt-out” provision of a rule ...

Fish for the Future: Our Health and Livelihoods Depend on It

by Catherine O'Neill | July 11, 2012
When environmental agencies set standards limiting toxic pollution in our waters, they theoretically aim to protect people who are exposed to these toxics by eating fish.  Currently, Washington state’s water quality standards protect only those who consume no more than one fish meal per month.  That means that those of us who eat more fish than this do so at our peril.     Washington’s Department of Ecology had announced some years back that it intended to update the fish ...

The Romney Website's Circular Blame Game

by Daniel Farber | July 09, 2012
Cross-posted from Legal Planet. The Romney website portrays regulation as a huge drag on the economy. But it can’t decide who’s to blame. Is it all Obama’s fault? Or not just Obama, but a whole succession of Presidents, many of them presumably Republicans? Or is it bureaucrats who have overpowered all of these Presidents? The website goes around in circles, embracing each of these theories even though they contradict each other. The website begins by placing the blame on developments ...

Environmental Justice and Chemical Security: Why EPA Should Use the General Duty Clause to Protect Vulnerable Communities

by Nicholas Vidargas | July 05, 2012
Around the nation, a huge number of facilities produce, store, handle, and process a toxic mix of hazardous chemicals every day.  According to EPA data, 483 of those facilities put 100,000 people or more at risk of a chemical disaster.  Worse, because facility siting decisions have historically been, and continue to be, deaf to impacts on poor and minority communities, those facilities tend to be disproportionately located in communities that bear the brunt of society’s environmental ills. In March, EPA’s ...

Columbia Journalism Review Calls Out Bloomberg Story on Regulation

by Matthew Freeman | July 03, 2012
Last week, The Washington Post ran a story about regulation, headlined, "Regulators surge in numbers while overseers shrink." The story came from Bloomberg and was written by reporter Andrew Zajac. The headline captures the thrust of the piece. Zajac writes: As the U.S. government’s regulatory bureaucracy has ballooned, one agency has been left behind: the office that oversees the regulators. The number of people working in federal agencies with regulatory authority has doubled to about 292,000 under both Republican and ...

Does Any Pollutant Mean ANY Pollutant?

by Daniel Farber | July 03, 2012
Cross-posted from Legal Planet. It got less attention than it should because it was upstaged by the Supreme Court’s healthcare decision, but last week’s D.C. Circuit ruling on climate change was almost as important in its own way.  By upholding EPA’s regulations, the court validated the federal government’s main effort to control greenhouse gases.  To the extent that the case got public attention, it was because the court affirmed EPA’s finding that greenhouse gases endanger human health and welfare.  However, ...

Health Care's New Commerce Clause: Implications for Environmental Law

by David Driesen | June 29, 2012
Although the Supreme Court upheld the Affordable Care Act’s requirement that most individuals purchase health insurance (called the individual mandate) as within Congress’ power to levy taxes, it stated that Congress lacked the power to enact it under the Commerce Clause.  Under prior case law, Congress could regulate activities substantially affecting interstate commerce by any means not offending the bill of rights.  Since the Affordable Health Care Act regulates a set of activities that substantially affect interstate commerce, namely the ...

Secretary Salazar's Unfortunate Prediction

by Robert Verchick | June 28, 2012
Good news for the Arctic! “I believe there will not be an oil spill”—this according to Ken Salazar, the nation’s Secretary of Interior and, now, environmental crystal-gazer. As someone still fretting about BP’s mess in the Gulf, I want to believe; but it’s hard. So let me back up. Earlier this week, Secretary Salazar said it was “highly likely” that his agency would grant Shell Oil permits to begin drilling exploratory wells in Arctic waters north of Alaska, despite opposition ...

Safe Drinking Water Act Provides EPA Key Opportunity to Regulate BPA

by Ben Somberg | June 27, 2012
Member Scholar Noah Sachs and Policy Analyst Aimee Simpson have sent a letter to the EPA nominating the chemical Bisphenol A (BPA) to be included on the “Fourth Contaminant Candidate List” for possible regulation. They write: Pursuant to the Safe Drinking Water Act Amendments of 1996 (SDWA), the U.S. Environmental Protection Agency (EPA) must compile a list of unregulated contaminants that are known or anticipated to occur in public water systems and may require regulation under the SDWA.  EPA then ...

Summer is Here, and With it Another Missed Deadline for a Key Regulation

by Ben Somberg | June 22, 2012
The EPA has quietly missed another deadline on issuing the final revised “boiler MACT” rule. The agency had pledged for many months that the rule would be finalized in April. Then, in an April 30th “status report” filing with the DC Circuit Court of Appeals, the agency said: “EPA intends to take final action on this proposed rule in the Spring of 2012.” Wednesday was the first official day of summer. The revised version of the rule will provide less pollution ...

Trash Overboard! Why the U.S. Should Ratify the 1996 Protocol to the London Convention

by Noah M Sachs | June 21, 2012
a(broad) perspective Today’s post is the fifth 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 ten treaties.  Previous posts are here. 1996 Protocol to the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter Adopted by the Parties to the London Convention (including the United States) and Opened for Signature ...

Meeting Low Expectations at Rio+20

by David Hunter | June 19, 2012
This is not your father’s Earth Summit.  This week’s UN Conference on Sustainable Development is meant to assess how far we’ve come from the 1992 UN Conference on Environment and Development (ambitiously named the Earth Summit).  And the 1992 Earth Summit was ambitious, featuring the largest gathering of world leaders in history as well as thousands of civil society and private sector participants whose presence heralded the emergence of a global environmental movement.  The original Earth Summit endorsed sustainable development ...

EPA's New Soot Proposal: The Good News, A Reality Check, Some Hopes, and Some Fears

by James Goodwin | June 15, 2012
Today, the EPA announced its new proposed National Ambient Air Quality Standard (NAAQS) for fine particulate matter, commonly referred to as soot.   Soot is one of the most common air pollutants that Americans encounter, and it is extremely harmful to our health and the environment, contributing to premature death, heart attacks, and chronic lung disease. Today’s proposal is a significant step forward that will bring tremendous benefits for the public if and when it is finalized. The proposal comprises two ...

EPA Chemical Assessment Advisory Committee Nominees and Conflict of Interest Concerns

by Ben Somberg | June 15, 2012
CPR President Rena Steinzor and Senior Policy Analyst Matthew Shudtz sent a letter to EPA Administrator Lisa Jackson this morning concerning the EPA’s Integrated Risk Information System (IRIS). From the letter: We are concerned that the recent establishment of the SAB Chemical Assessment Advisory Committee (CAAC) institutionalizes yet another opportunity for potentially regulated parties to disrupt the smooth development of new IRIS profiles. We are writing to encourage you to pay special attention to the nominees’ actual and perceived conflicts ...

Cost-Benefit Jumps the Shark: The Department of Justice's Economic Analysis of Prison Rape

by Lisa Heinzerling | June 14, 2012
Cross-posted from Georgetown Law Faculty Blog. Despite initial signs suggesting a different path, the Obama Administration has promoted the role of cost-benefit analysis in regulatory policy as fiercely as any administration before it. Nothing demonstrates this more clearly, I think, than the Administration’s bizarre and unfortunate decision to apply cost-benefit analysis to measures to limit rape and sexual abuse.  Last month, the Department of Justice issued a final rule on rape and sexual abuse in confinement facilities.  The rule was ...

Environmental Justice and GHG Cap-and-Trade: It's More than a Complaint

by Alice Kaswan | June 13, 2012
California environmental justice groups filed a complaint last week with the federal Environmental Protection Agency arguing that California’s greenhouse gas (GHG) cap-and-trade program violates Title VI of the federal Civil Rights Act, which prohibits state programs receiving federal funding from causing discriminatory impacts.  They allege that the cap-and-trade program will fail to benefit all communities equally, and could result in maintaining and potentially increasing GHG emissions (and associated co-pollutant emissions) in disadvantaged neighborhoods that already experience disproportionate pollution. While the ...

Conservatives Blast Obama Administration for Its Environmental Actions in 2007

by Ben Somberg | June 12, 2012
Rep. Joe Barton, speaking at a hearing last week, stuck it to President Obama’s EPA (at 39:00): In Idaho, just recently, the Obama Administration went against a family called the Sacketts on a wetlands issue. Again, Mr. Chairman, the Congress sets the rules, and the Administration enforces them. This Obama Administration, in the case of the EPA, doesn’t want to play by the rules, they want to set their own rules. At issue is the case of Mike and Chantell ...
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