Recent stories about "dead zones" in the Gulf of Mexico and the Chesapeake Bay are a reminder that despite progress on some water pollution fronts, we still have a serious problem to address. One politically popular approach to addressing the problem is a market-based solution, in which hard-to-regulate "non-point" pollution sources (farming, run-off, other sources without a "pollution pipe") and point sources engage in pollution-credit trades. So, for example, an industrial polluter might pay farmers to control run-off of fertilizer, thus reducing the flow of nutrients that cause dead zones. The interesting idea has been tried in some places, but has faltered because very few trades have actually been made, presumably because farmers lack incentive to overcome the challenges of striking deals and then implementing the pollution-control measures. It's just not their area of expertise.
In an op-ed published today in the Houston Chronicle, CPR Member Scholar and University of North Carolina law professor Victor Flatt proposes a novel solution: Independent third-party aggregators who would serve as "market makers." In Flatt's proposal, they would assume the risk of the transaction, making it easier for farmers to simply sign on the dotted line, follow a pollution-control plan, then cash a check. He recently published research on the failings of trading systems in the Houston Law Review, along with his proposal for aggregators.
According to the piece:
In today's political environment, and with issues of agriculture and local control to contend with, no one expects Congress to act, and so the EPA and the states are left to use the legal tools they have under the Clean Water Act to address this problem. To their credit, the EPA and many states have promoted pollution "trades," wherein expensive point-source controls can be replaced with cheaper non-point-source controls.
Paying farmers and other landowners to control runoff is a much cheaper way to reduce pollution than squeezing ever smaller improvements from industrial facilities. This means that more pollution can be controlled at lower overall cost.Full text
This week and next, CPR is using this space to highlight several key regulatory safeguards meant to ensure that the nation’s rivers, lakes, and streams are protected from damaging pollution—rules that are currently under development by the Environmental Protection Agency (EPA) and included in our recent Issue Alert, Barack Obama’s Path to Progress in 2015-16: Thirteen Essential Regulatory Actions. Today’s post will highlight the pressing need to rein in stormwater pollution, while also examining some of the challenges the EPA must overcome as it drafts the rules by focusing on Maryland’s experience regulating the pollution source.
As rainwater flows over streets, parking lots, and rooftops and other impervious surfaces, it picks up a potent cocktail of pollutants that includes oil and grease from parking lots, pesticides and herbicides from lawns, and everything in between. This polluted stormwater makes its way through gutters and storm drains to the nearest stream, where it damages water quality and aquatic life. The more development that occurs, the more impervious surfaces are created, and the more stormwater pollution is produced. According to the EPA, a typical city block generates more than five times more runoff than a forested area of the same size.Full text
Today, the Baltimore Sun published an op-ed by CPR President Rena Steinzor and Public Justice Center attorney Sally Dworak-Fisher entitled, "Maryland's whistleblower laws need teeth."
According to the piece:
Whistleblowers can help identify and put a stop to all sorts of illegal activity, if they're properly protected. Dozens of state and federal laws include provisions intended to shield whistleblowers from retaliatory actions by employers who have been outed. But this piecemeal approach, with different laws enforced by different agencies, is too complicated and has too many holes.
To take the load off of overburdened state investigators, Marylanders need a new law that gives whistleblowers the right to sue employers who retaliate. A comprehensive law with that fail-safe mechanism would be an invaluable tool for promoting better practices at worksites across the state because it would encourage workers to raise red flags when their employers skirt the law and protect them when they have the courage to do so.
To read it in full, click here.
Steinzor is also the author of the recently released book, "Why Not Jail? Industrial Catastophes, Corporate Malfeasance, and Government Inaction."
Today the President addressed the Business Roundtable on the subject of regulation.
When speaking about revising current regulations, he spoke about the need to keep child labor laws.
According to CPR Executive Director Matt Shudtz:
The President was right to start his remarks with the clear examples of how strong (or to the business lobby, “costly”) regulations save lives and improve the environment. There are hundreds more where they came from, including our labor laws. That’s what makes his later statement about child labor laws so jarring. Keep in mind, this is the same president whose administration pulled back a proposal that would have saved kids from green tobacco poisoning and dangerous farm equipment. He needs to do more than keep the laws on the books—he needs to be moving forward with new rules that address the many hazards that are currently unregulated.Full text
Over the next two weeks, CPR will publish a series of blog posts highlighting several key regulatory safeguards for protecting the integrity and health of U.S. water bodies against damaging pollution—rules that are currently under development by the Environmental Protection Agency (EPA) and included in our recent Issue Alert, Barack Obama’s Path to Progress in 2015-16: Thirteen Essential Regulatory Actions. Today’s post will examine the clean water safeguard that has attracted perhaps the most vociferous opposition from industrial and agricultural polluters along with their antiregulatory allies in Congress: the EPA’s pending rule to clarify the definition of “Waters of the United States” under the Clean Water Act, which seeks to ensure that certain classes of critical water bodies—many of which are smaller and often overlooked—receive the statute’s full protections.Full text
This Giving Tuesday, I hope you'll consider donating to the Center for Progressive Reform. We've had a banner year and are looking forward to many great things in 2015.
Above all, CPR's staff and Member Scholars promote a positive and progressive vision for environmental policy and workers' rights. We need your support to continue that work.
Two days after the midterm elections, we released "Barack Obama's Path to Progress," an Issue Alert laying out an affirmative and politically realistic vision for real progress over the next two years. The Alert identifies 13 essential regulatory actions that the President can and should finish before he leaves office, steps that allow him to save thousands of lives, lock in significant environmental gains, and leave a solid legacy on the regulatory front. Importantly, finalizing these rules is entirely within the province of the Executive Branch, so obstructionism aside, he can get this done.
I hope you've seen the wonderful infographics and blog posts that staff have put together to accompany the Alert. We'll continue to provide regular updates on the Obama Administration's progress on the "Essential 13," and we'll also work with our allies to press the administration into action.
This year we also put forward a positive vision for reforms to state and local laws that would better protect workers' health and safety. Our "Winning Safer Workplaces" manual was a big hit with our allies, and now we're working to help turn the ideas from the manual into reality.
Developing these forward-thinking products is no easy task, but our staff and Member Scholars get them done and still find the time to coordinate advocacy with allies, host webinars, meet with decisionmakers to promote our ideas, write case briefs, and blog with thoughtful and incisive commentary on the latest developments in regulation, environmental policy, and workers' rights.
Your support will help us to continue this great work in 2015. I hope you'll make a donation.
Thanks very much for your support.Full text
Today is the deadline for comments from the public on EPA's proposed rule to limit carbon emission from existing power plants.
CPR Member Scholar and University of North Carolina School of Law professor Victor Flatt submitted a comment on the rule.
According to his comments:
What I would like to focus on is suggesting that the agency definitively interpret Section 111(d) to allow states to utilize a greenhouse gas market reduction strategy that allows greenhouse gas reductions to come from any source.
Section 111(d) specifies that the Best System of Emissions Reduction adopted by a state be modeled on the CAA’s section 110, which governs the State Implementation Plans (SIPS). While the EPA has not had cause to consider the direct meaning of this before, I believe that it means that 111(d) provides a hybrid sort of emissions reduction based on proposed emissions reduction at the source, as contemplated by Section 111(b), but also extreme flexibility and state autonomy in selecting such reductions as contemplated for states meeting the NAAQS limits as required by Section 110. The EPA appears to support this interpretation in the body and text of the proposed rule by indicating at several junctures that the states do not have to use the four building blocks in order to meet their target reductions, and that the state can use “any” program that meets the targets, including trading systems in existing programs, such as California’s AB32. Despite this apparent overall flexibility in the rulemaking itself, the technical support documents and the rulemaking itself in several places seem to forbid the possibility of true flexibility in reducing GHGs by noting that reductions must come from the “affected units.”
To read his comments in full click here.Full text
Yesterday, the Supreme Court granted cert. in several cases to hear the following question:
“Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.”
The fundamental issue is whether it was unreasonable for EPA to interpret section 112 to preclude consideration of cost at this particular stage of the regulatory process — not only different from what the Court thinks is the best interpretation, but a position that no reasonable person could take. The Supreme Court and lower courts have rarely found agency interpretations unreasonable in cases where the statute was ambiguous. This is called the Chevron Step 2 analysis, while deciding whether the statute is ambiguous is called Chevron Step 1. The rationales for the Chevron doctrine are that Congress meant agencies to work out statutory ambiguities and that it is better for politically accountable members of the executive branch to do that, as opposed to federal judges with lifetime appointments.
How much is it worth to save the life of a grandfather with lung disease or to keep an asthmatic child out of the hospital? The ozone rule, which EPA proposes today after years of politically motivated delay and while staring down the barrel of a court order, responds to the urgent calls of a gold-standard panel of scientists, who have been pleading with the agency to lower the existing standard of 75 parts per billion to the lower end of a range between 60-70 ppb. The Obama Administration did not quite do that, instead suggesting a range of 65-70 ppb, disappointing public health experts, and leaving thousands of lives in danger. But at least it got off the dime regarding one of the most important public health problems caused by air pollution. Hopefully, it will push the numbers down after the comment period.
Because China has ignored this very problem, citizens in that country’s big cities wear face masks every day. That’s why this rule is so important.
It’s not surprising that polluting industries are responding with hysteria, ignoring the public health benefits in favor of their bottom line. It’s way past time for this chorus of polluting profiteers and their allies in Congress to stop acting like money spent to clean the air is money wasted. Just ask families of people who struggle to breathe freely.Full text
As I noted in an earlier post, families and friends all across the United States will gather to observe the Thanksgiving holiday tomorrow. Compared to many other countries, we are lucky that during such occasions we are able to focus on the celebrations enjoyed in the company of our loved ones—and not have to worry so much about whether the meal might cause a foodborne illness. This is because, while far from perfect, the United States has one of the best food safety systems in the world.
With the food supply chain becoming increasingly globalized, however, a strong system for ensuring the safety of domestically produced foods is no longer enough. Already, 15 percent of the food consumed in the United States is imported. Imports make up 91 percent of our seafood, 60 percent of our fruits and vegetables, and 61 percent of our honey. Unfortunately, many of these imported foods come from countries—such as China, Vietnam, and Mexico—that lack effective health and safety regulation.