A few months ago, I urged the Obama Administration to view the nomination of a second-term Administrator of the Office of Information and Regulatory Affairs (OIRA) as an opportunity to fundamentally change the role that the office plays in the regulatory system. Dozens of important rules got stuck at OIRA in the year before the presidential elections and are still languishing. House Republicans continue their blistering and unsubstantiated attacks on the agencies, doing everything they can to cut their budgets beyond the bone, while the Obama Administration does nothing to rebut these tirades. And most agencies at the federal, state, and local levels are on life support, unable to prevent, much less mitigate a series of deadly fiascos. As just two very recent examples: consider the explosion at a West Texas fertilizer factory that claimed 15 lives several days ago, catching emergency response crews at their most vulnerable, and yesterday’s front page story in the Washington Post about a rule that would gravely endanger worker and consumer safety at poultry processing plants. The job of the next “regulatory czar” won’t be easy unless he conceives of it as a continuation of the first Obama term’s “rule busting” that placates dangerous industries at the expense of public health.
Late yesterday, President Obama announced the nomination of Howard Shelanski, a current Federal Trade Commission official (FTC), to be the agent of change that OIRA so desperately needs. We'll certainly take a close look at his record in the days ahead, but one thing is certain: The Senate will need to conduct a thorough and searching confirmation process, one aimed at ensuring that OIRA stops being the place where badly needed safeguards for health, safety and the environment go to die.
Dr. Shelanski has spent his career working in the arenas of antitrust and telecommunications, two specialties far removed from the core of OIRA oversight that is most controversial. Hopefully, this background means he will approach health and safety issues with an open mind. On the other hand, Dr. Shelanski is also listed as an “expert” in the Mercatus Center’s Technology Policy Program. (His Mercatus Center bio is here.) The Mercatus Center is an industry-funded think tank and is well known for strongly advocating for anti-regulatory policies, indicating that in his new position, he must work especially hard to consider divergent views.*
Dr. Shelanski’s nomination will come before the Senate Committee on Homeland Security and Government Affairs. The members of that committee must take that opportunity to ask him tough questions. For example, as OIRA Administrator, will Dr. Shelanski see it as job to advance the public interest or to appease regulated industries? Who does Dr. Shelanski think should be in charge of the substance of EPA’s regulatory decision-making: the EPA Administrator or the OIRA Administrator? When it comes to agency decision-making, will OIRA continue to insist on substituting biased cost-benefit analyses for the impact analyses specified in statute? Will Dr. Shelanski abide by the transparency requirements imposed on OIRA by Executive Order 12866? Will he encourage agencies to follow the Order’s transparency requirements as well? Finally, will Dr. Shelanski respect the clear 90-day time limits that Executive Order 12866 places on regulatory review?
We look forward to meeting Dr. Shelanski and doing our best to persuade him that a fundamental course correction at OIRA is vital. Without one, there will be more grim funeral services honoring lives lost unnecessarily in industrial catastrophes that escape a badly shredded safety net.Full text
Reposted from Legal Planet, by permisison.
There are a lot of things to disagree about in terms of energy policy. One thing that ought to be common ground, as discussed in a Washington Post column, is increased research in energy R&D. As this chart shows, federal support for energy R&D is smaller than it was under Ronald Reagan:
The economic argument for supporting R&D is simple. Private firms don’t have enough of an incentive to engage in basic research because intellectual property law doesn’t allow them to capture the full benefits of the resource. For that reason, government support for the research is necessary. Moreover, really new ideas have a high risk factor that may make them unattractive to private investors (a problem addressed by the ARPA-E program.)Full text
Monday was the deadline for public comment on the State Department's draft Environmental Impact Statement (EIS) on the Keystone XL Pipeline. Mine, which I submitted with the support of two of my University of Nebraska colleagues, are here. The State Department had initially announced that it would take the unusual path of refusing to make all of the comments available to the public absent a Freedom of Information Act request, but after a storm of criticism, the Department has reversed its decision to play hide and seek and now promises to post them all on a website.
Meanwhile, the Environmental Protection Agency has released its comments, which are extremely critical of the State Department's analysis of the project's effect on climate change and its failure to consider alternative pipeline routes that avoid critical water resources. The EPA's comments, together with the outpouring of opposition from environmentalists and others, could well carry the day on the merits, persuading the President to reject the project as contrary to the national interest. At minimum, they will serve as fodder for subsequent litigation against the construction of the pipeline, if it's approved.
The EPA is hardly alone in its criticism. In my comments, I focused on several problems with the State Department's analysis. I write that the draft EIS failed to comply with the requirements of the National Environmental Policy Act (NEPA), a law that requires federal agencies to evaluate the harmful environmental consequences of their actions and to consider ways to carry out those actions so that they mitigate or avoid such consequences.Full text
On Wednesday, the Supreme Court ended a generation of human rights litigation in the United States by holding, in Kiobel v. Royal Dutch Petroleum, that the Alien Tort Statute (ATS) does not apply to actions occurring in foreign countries. The ATS allows plaintiffs to sue in federal courts for torts committed in violation of international law and, since 1980, plaintiffs have used it for claims of grave human rights violations, such as torture, crimes against humanity, extrajudicial killing, and even genocide, arising in other countries. Now it appears that the federal courts will be closed to such claims.
In recent years, plaintiffs had brought a series of cases against corporations that accused them of complicity in human rights abuses. Many of those claims were against corporations exploiting natural resources in developing countries. For example, Kiobel arose from Shell’s decades-long presence in the Niger Delta. In the 1990s, in response to protests by the Ogoni people about the environmental harm caused by oil extraction, Nigeria cracked down, destroying villages, arresting dissidents, and, in 1995, executing nine Ogoni leaders, including Ken Saro-Wiwa. Members of the Ogoni, including Esther Kiobel, the widow of one of the executed men, sued Shell in U.S. federal court, claiming that it aided and abetted the Nigerian government in its human rights abuses.
In 2010, the Second Circuit rejected their suit on the ground that corporations cannot be responsible for violations of international law. Other circuit courts, including the D.C. and Seventh, disagreed, and the Supreme Court granted cert. At oral argument in 2011, however, the justices asked most of their questions about another possible ground of dismissal, based on the presumption against extraterritorial application of federal law. They asked the parties to reargue the case to address that issue.
This week the Court issued its decision on that ground. By the usual 5-4 majority, the Court said that the presumption against extraterritoriality applied and that the ATS showed no evidence that Congress intended to overcome the presumption.
There are quite a few problems with this interpretation, as bloggers at Opinio Jurishave been pointing out. In no particular order:Full text
Industries that discharge water pollution are required to abide by clean water laws and regulations that limit how much they can pollute the nation's rivers, lakes, streams, and other bodies of water. If they exceed their limits or fail to implement appropriate methods for controlling their pollution, they violate the law. Such violations should trigger appropriate sanctions to deter all regulated entities from committing future violations.
Unfortunately, polluters may weigh decisions about whether and how much to pollute from a dollars-and-cents perspective only, comparing the costs of compliance with the penalties to which they may be subject for exceeding applicable discharge limits. Such a comparison can make decisions about how much to pollute turn on a comparison of the bottom line on the corporate balance sheet with and without a violation, without any apparent recognition of the impact that pollution may have on the health of others or the social responsibility to abide by legal mandates.
That's precisely why strict regulation of polluting industries is necessary. More specifically, it's why there should be no question that the cost of violating the law will exceed the avoided costs of compliance that result from a decision not to abide by applicable discharge limits. The penalties for violating environmental laws such as the Clean Water Act should provide ample economic disincentive to violate the law —the penalties must be high enough that regulated businesses that make decision about whether to pollute based purely on the bottom line will find no profit from polluting.
Today, CPR releases No Profit in Pollution: A Comparison of Key Chesapeake Bay State Water Pollution Penalty Policies (CPR Briefing Paper 1305), which examines the component of clean water enforcement penalty policy that is aimed at ensuring that polluters do not profit from their bad behavior. The paper focuses on what is known formally as the “economic benefit of noncompliance (EBN).” We look at the penalty policies of three key Chesapeake Bay states, Maryland, Pennsylvania, and Virginia, to examine the rigor of their penalty policies and practices concerning the EBN penalty component. Using the EPA’s policies and frameworks as the comparative standard, we review the clean water statutory and regulatory frameworks in these three states to determine the answers to the following questions:Full text
The following is reposted from the Environmental Law Prof Blog.
The electric utility industry often complains that renewable energy proponents don’t pay enough attention to the intermittency of renewable resources. A common refrain is “the sun doesn’t always shine and the wind doesn’t always blow.” The industry then reminds us that, for a reliable electricity grid, supply and demand must be in balance at all times. The implication is that this will be impossible if we rely heavily on renewable energy.
A new report published by the Civil Society Institute models a year 2050 scenario in which renewable energy is used to generate about half of all electricity in the US, and the lights still reliably come on. In the scenario, about 22% of demand is met by solar (almost all PV), 16% by wind, 8% by hydro, and 5% by biomass. The rest is supplied primarily by natural gas and nuclear energy. The scenario includes no coal-fired generation.
The authors explain that the intermittency problem of solar and wind is greatly reduced when you consider generation on a regional rather than local scale. Also, weatherpeople are actually pretty good at forecasting available solar resources (i.e. cloud cover) and wind resources (i.e. wind speed) on the time scale that’s needed for sophisticated grid operators to balance supply and demand – namely, several hours ahead of time. It also helps that as a general matter, solar electricity is most plentiful and reliable when we most use electricity: during daylight hours. To the extent that disparities between energy supply and demand occur in the 2050 scenario, the report shows that reliability can be achieved using interregional transfers of electricity, energy storage, demand response, and other available approaches.
So it seems we can build electric power systems that bank on the reliability of the sun and the wind. A new refrain could be “the sun’ll come out tomorrow, bet your bottom dollar that tomorrow, there’ll be sun!” and we can recall that our forebears didn’t name places Windy Mountain, Windy Plains, and the Windy City for nothing.
In the decades since Congress and state legislatures passed most of the nation's most significant environmental laws, our knowledge about ecosystems has increased dramatically. We know much more about the “goods and services” that ecosystems provide—more, for example, about the migratory species that sustain agriculture by functioning as pollinators, and more about how healthy ecosystems help to filter and clean our water. But our policymakers haven’t yet taken advantage of much of that new knowledge. As ecologists learn more about the complex and dynamic interactions that produce these valuable services, decisionmakers and advocates should adopt an ecosystem services approach to implementing laws that affect the environment.
Such an approach to environmental protection focuses policy and decisionmaking on restoring and maintaining the natural infrastructure and resources that the public values. It combines scientific assessment tools to understand both our dependence and impacts on ecosystems and public participation to identify the most important services. The approach sets goals for environmental protection and helps direct policymakers and natural resource managers to identify and apply the legal, regulatory, and market-based tools to achieve them.
An ecosystem services approach integrates advances in ecology with the law. It also fosters creative thinking about how to restructure laws and regulatory programs to mimic the connectedness of ecosystem functions. The approach requires performance-based evaluations to measure success or failure of management decisions, and it depends on public participation to prioritize those services that the public values most, thus ensuring long-term public support for and investment in achieving the identified goals.Full text
Last week, CPR lost one its most dynamic scholars, Joe Feller, in a tragic accident. Joe was deservedly well known as a staunch and vigorous advocate on behalf of natural resource preservation, especially the public rangelands that he loved. Joe was not cut from the typical academic mold. Although he wrote frequently and with vision about subjects that included rangeland protection and water law issues, he was at least as comfortable leading environmental protection efforts in the agencies and the courts. Joe filed administrative protests and appeals, represented environmental interests in litigation in the federal courts, submitted comments on proposed agency decisions and rules, testified at public hearings and before legislative committees, and participated in collaborative problem-solving groups. For example, he successfully litigated a path-breaking case requiring compliance with environmental laws in the renewal of grazing permits on federal public lands. Joe’s contributions to CPR included efforts to facilitate grazing law reform, http://www.progressivereform.org/perspLivestock.cfm.
Joe brought to these endeavors interdisciplinary skills that most legal academics lack. He earned a Ph.D. in physics from the University of California at Berkeley and was an Assistant Professor of Physics at Columbia University. Before beginning his legal academic career, he worked in the Office of General Counsel of EPA, serving as the principal attorney for promulgation of the national ambient air quality standards for particulate matter in the 1980s.
Those who knew Joe, however, understand that a recitation of his many notable accomplishments does not come close to capturing what made him beloved by his friends, colleagues, and students. Joe was irreverent. He had a wicked sense of humor. He was incredibly quick and insightful. He let you know where he stood, but was not overbearing. A gathering that included Joe Feller was never dull. He had a knack for cutting to the chase by posing questions and making arguments that reflected his fervor for the legal and policy issues on which he engaged, but that also sparked debate and new insights among others. Joe’s passing leaves a large hole. Those of us who shared a meal, hiked a trail, took a run, or attended a conference with Joe will sorely miss his humor, optimism, and high spirits, but we will treasure the memories of these experiences.
Much of what was special about Joe is captured in tributes that others have already written, including blogs by Holly Doremus, another CPR scholar, http://legalplanet.wordpress.com/2013/04/09/in-memoriam-joe-feller-much-more-than-a-law-professor/, by Joe’s colleagues at ASU, http://www.indisputably.org/?p=4615, and by other legal scholars, http://lsolum.typepad.com/legaltheory/2013/04/joseph-feller.html. A scholarship fund has been established at the Sandra Day O’Connor College of Law at Arizona State University, where Joe taught for 25 years, www.asufoundation.org/feller. A collection of Joe’s photos of the landscapes he so loved and fought so hard to protect can be found here, http://picasaweb.google.com/109546365407066839141.
This morning, CPR President Rena Steinzor will testify before the House Energy and Commerce Committee about the proposed Energy Consumers Relief Act of 2013 (ECRA), yet another in a series of bills from House Republicans aimed at blocking federal regulatory agencies from fully implementing the nation's health and safety laws — in this case such landmark legislation as the Clean Air Act, and any other law enforced by the Environmental Protection Agency that is in any sense "energy-related."
Here's the nut paragraph of the bill:
Notwithstanding any other provision of law, the Administrator of the Environmental Protection Agency may not promulgate as final an energy-related rule that is estimated to cost more than $1 billion if the Secretary of Energy determines under Section 3(3) [of ECRA] that, with respect to the rule, significant adverse effects to the economy will be caused.
In other words, the Secretary of Energy would have veto power over EPA.
Here's Steinzor's description of the proposal:
The ECRA is nothing more—and certainly nothing less—than yet another attempt by certain Members of Congress to shield some of the wealthiest and most heavily subsidized corporations in history from the relatively modest financial costs associated with carrying out their businesses in a manner that does not place people and the environment at unreasonable risk of harm.
For more than a year now, food safety and worker safety advocates have been fighting a proposal out of USDA’s Food Safety Inspection Service that would pull most government inspectors off poultry slaughter lines in favor of potentially un-trained company inspectors, speed up the lines, and allow companies to use additional antimicrobial chemicals to cover up expected increases in contamination. Today, President Obama released a proposed budget that indicates USDA’s proposal will be finalized before the start of FY2014 (see pages 86-87)—a rebuke to advocates who have made a strong case against the USDA proposal.
As we’ve noted before,
The President’s budget suggests that most of these concerns, raised by a broad coalition of the public interest community, have been ignored in a headlong rush to finalize a rule that officials believe will save a few million dollars in USDA’s multi-billion dollar budget (as well as save money for poultry processing companies). Yet, some hope remains that the rule is not written in stone. The President’s proposed FY2013 budget also assumed that the rule would be finalized before USDA’s budget was set. That did not happen, and it shouldn’t this time, either.Full text