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CPR President Rena Steinzor Testifies at House Hearing on Federal vs. State Environmental Policy and Constitutional Considerations

Today, CPR President Rena Steinzor testifes at a House Energy and Commerce Subcommittee on the Environment and the Economy Hearing entitled, "Constitutional Considerations: States vs. Federal Environmental Implementation Policy."

According to her testimony:

As I understand the situation, the Subcommittee’s leadership called this hearing in part to explore the contradiction between the notion that legislation to reauthorize the Toxics Substances Control Act (TSCA) should preempt any state authority to regulate chemical products with the notion that the federal government should depend on the states to regulate coal ash and has no role to play in protecting the public from such threats. 

These positions are a dichotomy if there ever was one. The contradictory ideas that the federal government must dominate the field in one area but that the state government should be exclusively in control in another seems irreconcilable as a matter of principle. 

Of course, as a practical matter, these irreconcilable positions have consistent pragmatic outcomes: they help big business. The chemical industry feels much more confident about its ability to browbeat the Environmental Protection Agency (EPA) into quiescence under the weak provisions of the TSCA legislation under discussion, so long as proactive states like California are knocked out of the equation. The electric power industry is much happier submitting to state regulators, who, as the recent spill in North Carolina clearly illustrates, have done almost nothing to control the severe hazards of improper coal ash disposal than it would be dealing with EPA’s more stringent regulatory proposals. Or, in other words, states should prevail as long as they aren’t doing much to gore the ox of big business. Once they get started down the road to regulate more stringently, however, the federal government must step in to halt a “patchwork” of overly aggressive regulation. 

This debate has been going on, in one iteration or another, for decades. Congress has grappled with it, the Supreme Court has grappled with it, the states have participated in the debate, as has the Executive Branch, and out of all this intense debate have come two fundamental principles well-recognized by mainstream constitutional scholars: 

One. The wide range of federal programs dealing with health, safety, and the environment are grounded appropriately in the Commerce Clause. While the Supreme Court has imposed some limits on federal authority, they do not apply to the structure of the federal environmental law. 

Two. A coherent set of eminently reasonable principles defines the cooperative partnership that prevails in the health, safety, and environmental area, and I urge the subcommittee to return to these principles in allocating responsibility to federal and state governments. 

To read her testimony in full, click here.

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CPR Issue Alert: EPA Raps Chesapeake Bay States for their Weak Restoration Commitments

Pennsylvania, the source of nearly half of the nitrogen that makes its way into the Chesapeake Bay, is falling dangerously behind in controlling the pollutant. Delaware is dragging its feet on issuing pollution-control permits to industrial animal farms and wastewater treatment plants. Maryland has fallen behind on reissuing expired stormwater permits and is not on track to meet that sector’s pollution-reduction goals.

These are some of the findings of a series of reports the Environmental Protection Agency (EPA) issued late last week. EPA assessed the progress the seven jurisdictions within the Bay watershed—Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia, and Washington, D.C.—were making toward meeting the Chesapeake Bay Total Maximum Daily Load (TMDL), a sort of “pollution diet” that is at the heart of the federally led plan to restore the Chesapeake Bay by 2025.

Along with the reports, EPA announced that it would create consequences for states that are falling behind. It will immediately increase its oversight of Pennsylvania’s agriculture sector and has proposed increasing oversight of specific sectors in Delaware, Maryland, and Virginia unless the states meet certain conditions. EPA also threatened to withhold grant money in Delaware, Maryland, Pennsylvania, and Virginia unless deadlines are met.

CPR’s newest Issue Alert, co-authored by Rena Steinzor and me, breaks down each jurisdiction’s progress and challenges in meeting the TMDL’s deadlines. In the Alert, we applaud EPA for demonstrating its willingness to take action against lagging jurisdictions.

 

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NLRB gets an earful on its “joint employer” definition

A coalition of occupational health and safety experts submitted an amicus brief to the National Labor Relations Board (NLRB) last Thursday, urging the Board to reconsider its restrictive definition of “joint employer” for purposes of collective bargaining.  It’s a critical issue for workers as more and more are getting jobs through temp firms, staffing agencies, and other complex employment relationships.  The workers who got your last-minute Father’s Day gift from the Amazon warehouse to your front door, for instance, don’t all get paychecks from Amazon, but they all operate at “Prime” speed because Amazon demands it.

From a health and safety perspective, it’s important that laws like the National Labor Relations Act (NLRA) and the Occupational Safety and Health Act (OSH Act) are interpreted broadly because the remedial purposes of those statutes – to ensure all workers can collectively bargain for better working conditions and to ensure that all workers are provided safe jobs – are best achieved when all of the employers with a connection to the job are at the table.

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States and localities are where it’s at, opportunities to win safer workplaces

Cross-posted from The Pump Handle.

Luis Castaneda Gomez, 34 and Jesus Martinez Benitez, 32 were asphyxiated in June 2011 when they were doing repairs inside a manhole. Their employer, Triangle Grading and Paving, was hired by the City of Durham, NC to make water line repairs. The firm had a history of violating worker safety regulations. Worse yet, it was not the first time an employee of Triangle Grading was killed on-the-job.

Durham, like most municipalities, did not have effective policies in place to guard against giving business to safety scofflaws. But that changed in Durham when it adopted a policy in 2012 requiring all bidders to provide information on their safety performance.

This example and many others are described in Winning Safer Workplaces: A Manual for State and Local Policy Reform. Liz Borkowski and I wrote the guide, along with the Center for Progressive Reform’s James Goodwin, Michael Patoka, Matt Shudtz and law professor Rena Steinzor. The document includes more than a dozen ideas for reforms that would empower workers, make sure crime doesn’t pay, and strengthen institutions. Ideas contained in the guide came from worker safety advocates and experts, including those with the National Council for Occupational Safety and Health (National COSH) and its network of COSH groups. Mary Vogel, the group’s executive director, welcomed the manual. “It’s exactly what’s needed to help strategize, advocate and win improved health and safety so we can prevent illness, injury, and fatalities on the job.”

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Winning Safer Workplaces

Thousands of U.S. workers die on the job each year, the victims of unsafe workplaces. Countless more are injured, some permanently disabled, or exposed to toxic substances that could eventually harm or kill them. While the federal Occupational Safety and Health Administration has made progress to improve workplace safety since Congress passed the OSH Act in 1971, a new advocacy manual from the Center for Progressive Reform focuses on the progress on worker safety issues  likely to come at the state and local levels, far from the general dysfunction in Washington.

Winning Safer Workplaces: A Manual for State and Local Policy Reform, written by a team of lawyers and public health researchers, offers local advocacy groups a series of policy proposals, all ripe for enactment by state legislatures, city or county councils, or state or local agencies. 

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Utility Air Regulatory Group v. EPA: Little Impact on EPA Regulation of Greenhouse Gases

In Utility Air Regulatory Group v. EPA, seven members of the Supreme Court upheld the most important feature of the EPA’s Prevention of Significant Deterioration (PSD) program: the ability to require the vast majority of new and modified sources to install the “Best Available Control Technology” for reducing greenhouse gases (GHGs).  As a consequence, eighty-three percent of significant new and modified sources will continue to be subject to the BACT requirement for their GHG emissions. Although the Court reversed, by a five-to-four vote, EPA’s contention that greenhouse gas emissions alone could trigger the PSD program, that reversal will have little impact because it will eliminate PSD requirements for only about three percent of significant stationary GHG sources.  Justice Scalia’s majority opinion had some choice words for EPA, but it remains to be seen whether those words spell trouble for newly emerging climate regulations. 

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Today's Supreme Court Ruling: Three Key Questions

Direct implications are limited, but we'll be reading the tea leaves for future implications.

Scholars, lawyers, and judges will be spending a lot of time dissecting today’s ruling.   Overall, it’s a bit like yesterday’s World Cup game — EPA didn’t win outright but it didn’t lose either.

Here are three key questions with some initial thoughts:

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Enforcement and Regulatory Governance

Co-authored with David L. Markell

Enforcement is widely acknowledged to be an indispensable feature of effective governance in the world of environmental protection and elsewhere. Unfortunately, criticisms of the U.S. government’s efforts to enforce the environmental laws began almost with the inception of the Environmental Protection Agency (EPA) more than forty years ago – and they continue virtually unabated today.

In a 2012 report, for example, the U.S. Government Accountability Office(GAO) noted that “EPA has reported that it is not achieving all of the environmental and public health benefits it expected . . . because of substantial rates of noncompliance.” Former EPA Administrator Lisa Jackson acknowledged in 2009 that “[t]he level of significant non-compliance” with various Clean Water Act requirements had grown “unacceptably high.” Even EPA’s enforcement office has admitted significant shortcomings, noting that “violations are . . . too widespread, and enforcement too uneven.”

Assessments have found serious deficiencies in state enforcement performance too. This is a significant weak spot for environmental protection because of the central role that states play in the U.S. cooperative federalism system of environmental protection.

Several looming challenges have exacerbated concerns about enforcement. In many areas of environmental regulation, the size of the regulated community has expanded dramatically, putting additional pressure on government data-gathering, monitoring, and enforcement capacities. For example, the number of point sources subject to CWA permitting requirements, such as those responsible for stormwater discharges and pesticide applications, doubled over a recent ten-year period.

 

 

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Controlling Power Plants through Clean Air Act § 111(d): Achieving Co-Pollutant Benefits

Power plants are not only one of the nation’s largest sources of greenhouse gases, they are also a significant source of sulfur dioxide, nitrogen oxides, particulates, and mercury, all of which have direct public health and welfare consequences. EPA’s recently proposed Clean Power Plan, which applies Clean Air Act § 111(d) to reduce greenhouse gases (GHGs) from the nation’s fleet of fossil-fuel power plants, will have important implications for these ubiquitous co-pollutants.  Although the primary goal of the Clean Power Plan is to reduce GHGs, ancillary co-pollutant benefits are an important consideration in evaluating alternative mechanisms for controlling GHGs. 

The key to maximizing co-pollutant benefits will be shifting away from coal-fired power, the energy source that emits the highest levels of both GHGs and co-pollutants, and encouraging a more widespread shift from fossil fuels to no-carbon alternatives like consumer energy efficiency and renewable energy.  Ultimately, notwithstanding environmental justice concerns about cap-and-trade programs, the most critical issue will be setting stringent targets that prompt change, not their particular regulatory forms.  EPA’s Clean Power Plan has laid the groundwork for a transformative and stringent approach by establishing a system-wide approach to reducing power sector emissions, but it remains to be seen whether the agency has established stringent enough targets to achieve § 111(d)’s full potential to reduce both GHG and co-pollutant emissions.  (This blog is based upon a longer article entitled: “Controlling Power Plants, The Co-Pollutant Implications of EPA’s Clean Air Act § 111(d) Options for Greenhouse Gases,” 32 Virginia Envtl. L. J. 173 (2014).)

EPA’s Clean Power Plan

Pursuant to CAA § 111(d), EPA identified the “best system of emission reduction … adequately demonstrated” (BSER) for reducing power plant emissions.  Importantly, EPA determined that a system-wide approach, that takes advantage of both “inside the fence” options at power plants and “outside the fence” options, like renewable energy and consumer energy efficiency, constitutes BSER.  EPA assessed each state’s capacity to achieve reductions through available measures and set interim and final “carbon intensity” targets for each state to achieve.  States will then be required to develop state-specific plans that demonstrate how they will achieve the EPA targets.  Although EPA defined each state’s target by identifying a range of available measures, EPA did not directly require each state to take the measures used to define its target.  Instead, EPA gave each state the flexibility to achieve its target through whatever combination of mechanisms it chooses.

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India Launches Sweeping Mandatory Program on Corporate Social Responsibility

With little notice in the West, India has just launched the most far-reaching corporate social responsibility (CSR) program in the world.  The CSR law, which took effect April 1, requires large and mid-sized firms to contribute at least 2% of their pre-tax profits (averaged over the previous three years) to social, health, educational, or environmental causes.  It also requires companies to prepare a formal CSR policy and to report annually on their CSR activities.  The CSR law, section 135 of the Companies Act of 2013  was part of the first major overhaul of Indian corporate law in nearly sixty years. In February, the Ministry of Corporate Affairs issued regulations implementing the new law.  

The money involved is huge for India.  The CSR requirement is expected to raise $2 to $5 billion annually for the social sector.   A comparable 2% spending requirement in the United States would raise more than $48 billion per year, assuming it applied only to corporations.  Even more money would be raised in the U.S. if such a requirement applied to “pass through” entities such as partnerships.

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