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CPR's Buzbee to Testify at House Hearing on Waters of the US Rule

CPR Scholar and Georgetown University Law School professor William Buzbee testified at a House Subcommittee on Water, Power and Oceans Oversight hearing today entitled, Proposed Federal Water Grabs and Their Potential Impacts on States, Water, and Power Users, and Landowners.

The Hearing concerned the EPA and Army Corp of Engineers' proposed "Waters of The US," rule related to water pollution and agriculture.

According to his testimony:

The legal uncertainty of recent years about what are protected federal waters has benefitted no one. For those concerned about protection of America’s waters, regulatory uncertainty has led to regulatory forbearance, problematic or erroneous regulatory and judicial decisions, and increased regulatory costs. By now linking the “waters of the United States” question to peer reviewed science and clarifying which waters are subject to categorical or case-by-case protection and revealing the reasons for such judgments, the Corps and EPA have moved the law in the direction of certainty and clarity. This is an area calling for difficult, expert regulatory judgments. There was a reason for the thirty years of bipartisan consensus in favor of broadly protecting America’s waters. These proposed regulations, if finalized in a substantially similar form but with explanations and changes addressing concerns voiced during the process, could once again bring clarity and stability to the law, while also respecting the protective mandates of the Clean Water Act.

To read the full testimony click here. 

Buzbee also testified on the proposal last year for a House Subcommittee on Small Business Administration Hearing. 

 

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Defusing Blunderbuss Constitutional Attacks on EPA's Proposed Regulation of Existing Power Plants to Abate Climate Change

As climate scientists have been telling us for years, and as all but the most obstinate climate deniers acknowledge, greenhouse gas (GHG) emissions from the combustion of fossil fuels are contributing to climatic changes.  These changes have taken the form of melting ice sheets, rising sea levels, changes in wind and ocean current patterns, and increases in the frequency of severe weather events, to name but a few effects.  Rising temperatures linked to GHG emissions also exacerbate public health problems associated with the release of more conventional air pollutants, because temperature increases facilitate the formation of tropospheric ozone, which can cause breathing difficulties and cardiovascular problems.  It is not a stretch to characterize climate change as the most challenging environmental problem of our time.

Since taking office in 2009, the Obama Administration has taken important steps to reduce GHG emissions, both in the U.S. and through negotiations with foreign countries such as China.  These steps have included using the authority that Congress vested in the federal Environmental Protection Agency (EPA) under the Clean Air Act (CAA).  Although Congress enacted the CAA decades before human contributions to climate change were broadly recognized, Congress consciously provided EPA with a flexible mandate to address the health and environmental risks linked to air pollution as the agency became aware of them.  In 2007, the Supreme Court concluded that GHGs qualify as “air pollutants” under the CAA, giving EPA the authority to regulate emissions of carbon dioxide and other GHGs from new motor vehicles. After President Obama took office, EPA issued a finding that EPA’s subsequent regulation of GHGs from cars and trucks triggered EPA’s authority under the CAA to regulate GHG emissions from factories and other stationary sources as well.  Once again, the Supreme Court last year ruled that EPA has the power to regulate GHG emissions from stationary sources, at least in some contexts.

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CPR's Winning Safer Workplaces, now in Spanish

Last year, the Center for Progressive Reform published Winning Safer Workplaces: A Manual for State & Local Policy Reform. The manual is intended as a tool for state and local advocates. It highlights successful local campaigns to adopt workplace safety policies, and offers a series of innovative proposals to help state and local advocates make headway even in the face of intense opposition from big-moneyed, anti-regulatory interests. We focused on cross-cutting ideas that will empower workers, ensure crime doesn’t pay, and strengthen the institutions that are meant to protect workers.

Our day-of-release blog post with more information is here.

Since its release, we’ve received positive feedback from many advocates about the manual. Among the suggestions that we heard was that the manual ought to be translated into Spanish. Today, we’re excited to announce that a Spanish-language version of the manual is available on our website.

Credit for this massive endeavor goes to Celeste Monforton for coordinating the translation, along with Nico Udu-Gama, Jazmín Rumbaut, Lucy Acevedo, Tony Macias, and Ximena Camou-Guerrero for thoughtfully interpreting the manual. Their efforts were supported by the Public Welfare Foundation and the Public Health Advocacy Institute at Northeastern University School of Law.

Please take a look and share this with your colleagues.

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The Case Against Sulking

States will only lose out if they refuse to cooperate with the Clean Power Plan.

Mitch McConnell has urged states to refuse to submit plans if the Clean Power Plan is upheld by the Court.  He has been accused of inciting lawless behavior on the part of state governments.  Let me come to his defense on this.  (How often do I get to do that??) The states are under no legal obligation to submit plans.  The Clean Air Act does not require them to do so.  Coercing states to administer a federal regulatory program would violate the Constitution, at least as the current Court sees things.  So there’s nothing illegitimate about McConnell exercising his American right of free speech and advising them what to do.  The fact that he’s doing so presumably reflects his own inability as the leader of the Senate to do anything about it.

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EPA's Budget Declines Raise Serious Concerns

When it comes to the size of the federal workforce, most of the rhetoric in Washington revolves around how to cut it. That’s particularly true where Republicans are concerned, and perhaps nowhere truer than with the Environmental Protection Agency, a favorite GOP target. What they almost never mention is that cutting staff means making sacrifices in protecting the quality of the air we breathe, the water we drink, bathe, swim and fish in, and the many individuals—including infants, the elderly, pregnant women, and those who already suffer from illness—whose health can be severely impaired by environmental pollution.

The recent testimony of EPA Administrator Gina McCarthy at a hearing of a House Appropriations subcommittee is a case in point. McCarthy informed the panel that EPA’s staffing has now declined to its lowest level since the late 1980s, now “down in the 14,000s.” “I am trying to work [our] way back up to the 15,000s,” she declared.

In fact, even that would leave staffing well below the agency’s historic high of 18,110 employees in 1999.

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The sky is not falling: FDA proposes common-sense treatment of generic drugs

There must be a global template for business complaints about regulation, located on some secret right-wing server. Just type in the industry and the name of the regulation: Billions of dollars are at stake, companies will be driven out of the industry and consumers will lose access to low-priced products, if the government dares to impose an ordinary, common-sense rule. Such as, making drug companies responsible for the safety of their products?

Aren’t pharmaceutical companies already responsible for warning their customers of known adverse effects? If you answered “yes, of course,” then you missed the Supreme Court’s 2011 ruling in Pliva v. Mensing. Currently, generic drug companies are required by the Food and Drug Administration (FDA) to use exactly the same labels and warnings as the corresponding brand-name drugs. Therefore, the Court ruled in Mensing, the producer of a generic drug cannot be held responsible for failure to warn customers of known hazards that are not mentioned on the brand-name drug label. This is particularly problematic in the frequent cases where generic drugs drive the brand-name producer out of the market, so that no one is updating the label to reflect new information.

 

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Monetization, Myopia, and MATS

The U.S. Supreme Court yesterday heard oral argument in the consolidated cases challenging the Environmental Protection Agency’s rule regulating mercury and other toxic emissions from coal- and oil-fired power plants.  These utilities remain by far the largest domestic source of mercury emissions, contributing more than half of the mercury releases nationwide.   Mercury emissions are at the root of widespread methylmercury contamination in the nation’s fish.  Fish consumption is the primary way by which humans are exposed to what is, after all, an “extremely poisonous neurotoxin,” as the attorney for those industries that joined EPA as respondent reminded the justices. (Transcript at 84). The exchange captured by the transcript may not permit a confident prediction as to how the Court is likely to rule (an assessment shared by Lyle Denniston at SCOTUSblog ).  But it provides a glimpse of precisely how monetized costs and benefits can hijack deliberation.  Once dollar values are available, these numbers tend to dominate a discussion of what is at stake in regulation.  For mercury, the costs are readily quantified, whereas many facets of the benefits resist monetization.  So the case for regulation will not only get short shrift – it may be profoundly misunderstood.

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Carry the Zero: The Polluters’ Flawed Arithmetic in the EPA's Hazardous Air Pollution Rule

In the run-up to this morning’s oral arguments before the Supreme Court on the Environmental Protection Agency’s rule to limit hazardous air pollutants from fossil-fueled power plants—and indeed throughout the oral arguments themselves—opponents repeatedly pointed out that the benefits of the rule in reducing mercury pollution were “only” between $4 million and $6 million.  Putting aside the ethically problematic question of trying to put a dollars-and-cents value on achieving improved public health and environmental protection, it is worth pondering this number and what it reveals about the significant methodological flaws that are endemic to cost-benefit analysis.  (For the record, this number is supposed to represent the “value” of lost earning potential of children that the rule would protect against IQ point degradations.  Do you see what I mean about ethically problematic?)

Opponents of the rule claim that this $4-million figure is the only valid benefit estimation of the rule that the EPA should able to count in evaluating its mercury rule.  In making this argument, their real beef is that the EPA has also counted the co-benefits of the rule—that is, benefits that the rule achieves as an incidental byproduct of what is really trying to achieve.  In this case, EPA’s rule is meant to address mercury and other “hazardous” air pollutants, but along the way would significantly reduce particulate matter and ozone, which are classified as- “non-hazardous” air pollutants, but are still known by scientists to cause a host of environmental and public health problems.

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CPR's Tom McGarity Responds to Supreme Court's Examination of Costs Associated with Rule-making in Michigan v. EPA

Today, the Supreme Court heard oral argument in Michigan v. EPA

CPR Member Scholar and University of Texas School of Law professor Thomas O. McGarity responded to the debate with the following statement:

Following today’s oral arguments, the Supreme Court must decide whether EPA misinterpreted a section in the Clean Air Act requiring it to regulate hazardous emissions from power plants when such regulation is “appropriate and necessary.”  EPA interpreted those words to require the agency to focus on the harm that emissions of hazardous pollutants, like Mercury, can cause to human health and the environment, and not on how much it would cost industry to reduce those emissions.

EPA’s interpretation is fully consistent with the Clean Air Act’s precautionary approach to protecting public health and the environment from toxic emissions. 

History has proved time and again that if EPA must consider costs in deciding whether to regulate, industry advocates will dominate the deliberations with inflated cost projections, and the agency will never get around to protecting the public.

The statute makes it clear that cost considerations are relevant in determining the stringency of controls that EPA requires, but they are not relevant in deciding whether to regulate toxic emissions in the first place.

The Supreme Court has on many occasions over the past 30 years held that reviewing courts are to defer to EPA’s interpretations of the Clean Air Act so long as they are reasonable.

The Court should uphold EPA’s reasonable interpretation in this case.

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Today at the U.S. Supreme Court: Industry Tries to Shove a Cost-Shaped Peg Into a Benefit-Shaped Hole

When it comes to public safeguards, industry never wants to talk about keeping people healthy and protecting the environment; they’d much rather have a conversation about how safeguards will cut into their profits — the costs in the cost-benefit equation.  Even on matters where Congress, by statute, has made the discussion of regulatory costs legally irrelevant or a matter of only secondary importance, you can rest assured that industry will still be there talking exclusively about costs.  That is largely what is at issue in Michigan v. Environmental Protection Agencywhich is being argued today before the U.S. Supreme Court—another attempt by polluting industries to inject discussions of costs where they don’t belong.

But, for the EPA’s rule to limit mercury and other toxic pollutants from fossil-fueled power plants, the subject of the case, perhaps the most critical issue is the regulatory benefits at stake, and how the fulfillment of those benefits has been on a circuitous journey that is now extending into its 25th year. You read that right. It has been a quarter of a century since Congress first directed the EPA to issue this rule.  That’s when it passed the 1990 Clean Air Act Amendments.  As explained in a 2009 CPR white paper, the rule should have been completed by no later than 2000.  This ongoing delay has come at a huge price for the public health.  With every year that this rule has not been in effect, as many as 94,000 babies have been born in the United States with elevated blood mercury levels—levels high enough to leave them with irreversible brain damage—and as many as 231 children have suffered significant enough impairment of brain function to result in permanent mental retardation.

The fossil fuel industry no doubt wants to distract the public from contemplating the harmful health effects of its polluting activities; hence, it is trying to steer the conversation to regulatory costs in today’s case.  (The fact that these regulatory cost estimates are systematically overstated only provides them with further impetus on this score.)  It might be a useful PR move from their perspective, but it is not a legal requirement under the relevant provision of the 1990 Clean Air Act Amendments.  Let’s hope the Supreme Court will recognize this difference and reject industry’s abhorrent attempt to further delay this already long overdue safeguard for protecting our children’s health.

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