Court to Feds: "Pay Up for Katrina Damage"

by Daniel Farber | March 07, 2012

Cross-posted from Legal Planet.

The U.S. Court of Appeals for the Fifth Circuit has upheld a district court ruling that the federal government is liable for damage from the Katrina storm surge that went up the MRGO canal into the city. As I read the opinion, it is limited in three ways. First, it is crucial that MRGO — the Mississippi River Gulf Outlet — was a navigation project, not a flood control project. The government is immune from flooding caused by a flood control project. Second, the specific negligent action, failure to shore up the sides of the channel, was primarily related to protecting the canal itself rather than to flood control. And third, failure to shore up the sides was not a policy decision, but was based on careless science that led the Corps of Engineers to conclude that there was no risk of harm from a storm surge.

These are fairly unusual circumstances, and it ...

Greenhouse Gas Rule Now Stalled at White House Beyond Time Limit of Executive Order

by Ben Somberg | March 06, 2012
On November 7 of last year, EPA sent the White House Office of Information and Regulatory Affairs (OIRA) a rather important proposed rule – one that will, in some way, limit greenhouse gas emissions from new power plants.  The Greenhouse Gas New Source Performance Standard for Electric Generating Units for New Sources has now been at OIRA for 120 days – the maximum allowed by Executive Order. Executive Order 12866 is pretty clear on the deadline for OIRA to return ...

After Partial Settlement, Oil Spill Case on a Slow Boil

by Robert Verchick | March 05, 2012
The BP Oil Spill case settled! Well, part of it. The smaller part. But, still, we must count this a victory for U.S. District Judge Carl Barbier, whose reported 72 million pages of assigned reading will inevitably be shaved down. (Does this man have an iPad?) On Friday evening the court announced that BP had reached a settlement with the steering committee that represents thousands of private plaintiffs in the case. Judge Barbier postponed the trial indefinitely while the remaining ...

CPR Issue Alert: Administration's Failure to Adopt Needed Safeguards in a Timely Way is Costing Lives and Money

by Rena Steinzor | March 02, 2012
The toll:  An estimated 6,500 to 17,967 premature deaths, 9,867 non-fatal heart attacks, 3,947 cases of chronic bronchitis, and more than 2.3 million lost work and school days. That's just a partial tally of the costs Americans will bear because of unjustified delays in two critical health and safety regulations.  More broadly, the Administration’s Fall 2011 Regulatory Agenda—released late, at the end of January of 2012—shows how many of the most important rules currently in the regulatory pipeline are being ...

What Does It Mean that the Public Overwhelmingly Supports Specific Types of Regulation, But Questions 'Regulation' in General?

by Sidney Shapiro | February 28, 2012
A new Pew public opinion poll published last week shows substantial public support for specific types of regulation, but skepticism about regulation in general. While 70-89% of the public would either expand or keep current levels of five specific types of regulation, 52% say government regulation of business usually does more harm than good as compared to 40% who think regulating business is necessary to protect the public interest. The five types of regulation were car safety and efficiency, environmental ...

Extending Protection to Wildlife: Why the United States Should Ratify the Agreement on the Conservation of Albatrosses and Petrels

by David Hunter | February 27, 2012
a(broad) perspective Today’s post is first 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.  Agreement on the Conservation of Albatrosses and Petrels Adopted and Opened for Signature on June 19, 2001 Entered into Force on February 1, 2004 Number of Parties: 13 Signed by the United States, June 19, 2001 Sent to the Senate ...

Can Corporations Violate Human Rights? In Kiobel v. Royal Dutch Petroleum, the Supreme Court May Say Yes ... or No

by John Knox | February 23, 2012
On February 28, the Supreme Court will hear argument in Kiobel v Royal Dutch Petroleum, a case with far-reaching implications for efforts to hold corporations accountable when they commit or are complicit in abuses of human rights.  For over fifty years, Shell has extracted oil from Nigeria, causing great harm to the environment and people of the Niger delta.  The Ogoni people living in the delta protested Shell’s operations, and in response the Nigerian government harshly oppressed them.  Most infamously, ...

The Age of Greed: What the Chemical Industry Doesn't Want You to Know

by Rena Steinzor | February 22, 2012
Imagine for a moment that you’rethe chief executive of a company that manufactures chemicals used in plastics that become consumer products, especially plastic picnic ware.  The head of your product development lab reports that she has just gotten some troubling results regarding one of your biggest sellers—a chemical agent that makes it possible for plastic utensils to maintains their decorator colors.  The study shows that this agent causes severe neurological damage in rats.  The Toxic Substances Control Act, commonly referred ...

Mardi Gras, Check. BP "Trial of the Century" Here We Come.

by Robert Verchick | February 22, 2012
Well, another magnificent Mardi Gras has ended, and at this point, I’d normally be slouched on the sofa sipping a tomato juice (neat) and sorting beads. But not this year.  That’s because next week, squadrons of lawyers, journalists, petroleum engineers, and fisher folk are scheduled to descend on New Orleans, squeeze into a federal courtroom, and begin on Monday what the media have modestly called, “The Trial of the Century,” otherwise known as the BP Oil Spill litigation. Whatever the ...

EPA's Standing Argument: A Sleeping Giant in the Tailoring Rule Litigation?

by Kirsten Engel | February 21, 2012
On Feb. 28 and 29, the D.C. Circuit is scheduled to hear arguments on a suite of industry-led challenges to EPA-issued greenhouse gas rules.  While attention has focused on industry’s challenge to EPA’s finding that greenhouse gases (GHGs) endanger the environment, industry’s challenge to the greenhouse gas permitting “tailoring” rule – a rule limiting the CAA’s application to only the largest GHG sources – is just as important, and just as interesting a battle.  At issue is constitutional law’s most ...

Placing a Ceiling on Protection for Public Health

by Daniel Farber | February 20, 2012
Cross-posted from Legal Planet. Governor Romney has endorsed an idea called regulatory budgeting, but it really means capping protection for public health. Romney’s position paper explains the concept as follows: To force agencies to limit the costs they are imposing on society, and to provide the certainty that businesses crave, a system of regulatory caps is required. As noted, the federal government has estimated that the existing regulatory burden approaches $1.75 trillion. We cannot afford those costs to go any ...

The Economist Recycles Old Right-Wing Ideas to Gut Public Protections

by Rena Steinzor | February 17, 2012
The Economist’s February 18 edition offers a cover package of five articles on “Over-regulated America” (1, 2, 3, 4, 5). Our British friends want you to know there’s a problem here in the States that needs fixing: A study for the Small Business Administration, a government body, found that regulations in general add $10,585 in costs per employee. It’s a wonder the jobless rate isn’t even higher than it is. You can almost feel The Economist’s pain: the jobless rate ...

EPA Releases IRIS Assessment of Dioxin Non-Cancer Risks

by Matt Shudtz | February 17, 2012
Today EPA released the first part of its long-awaited reassessment of the human health risks posed by 2,3,7,8-tetrachlorodibenzo-p-dioxin, a chemical considered to be the most toxic of the dioxin compounds and the stuff that made Agent Orange so bad for its victims.  It’s bittersweet news: on the one hand, the decades-long stretch between EPA’s first look at dioxin and this document is something we don’t like to see, while on the other, today marks an enormous step forward. The document ...

The Pipeline That Refuses to Die

by Sandra Zellmer | February 16, 2012
Last month, President Obama denied TransCanada’s permit application for the Keystone XL pipeline because a congressionally mandated deadline did not allow enough time to evaluate the project once Nebraska completed its analysis for re-routing of the pipeline around the Sand Hills. A January 26-29 poll from Hart Research Associates found that, after hearing arguments for and against the pipeline, 47% of voters in four Presidential battleground states polled agree with President Obama’s decision while 36% disagree with it.  Yet just this ...

Will Sackett Sock It To EPA Enforcement?

by Joel Mintz | February 15, 2012
Two of my CPR Member Scholar colleagues, Nina Mendelson and Holly Doremus have done a first-rate job of previewing and analyzing the oral argument in Sackett v. EPA – a case now awaiting decision by the U.S. Supreme Court. I fully share Professor Doremus's hope that, even if the case results in a loss for the government,  the Supreme Court's decision in Sackett will not be decided on constitutional grounds and will be limited in its impact to the Clean ...

One Year Later, OSHA's Rule to Protect Workers from Deadly Silica Still in White House Review

by Thomas McGarity | February 14, 2012
Today marks the first anniversary of an event that received little media attention, but marked a major milestone in the progression of a regulation that is of great importance to thousands of Americans whose jobs bring them into contact with dust particles containing the common mineral silica.  Exactly a year ago today the Occupational Safety and Health Administration (OSHA) completed a proposed rule requiring employers in the mining, manufacturing and construction industries to protect their employees from silica dust particles ...

EPA Releases Inventory of Legal Authorities to Advance Environmental Justice

by Robert Verchick | February 13, 2012
Last fall, in a speech I gave at an environmental justice event in Los Angeles, I ruffled some feathers with an impromptu line that went something like this:  “Believe it or not, federal environmental statutes say nothing directly about environmental justice.” During the “Q & A” I was challenged by an environmental activist and lawyer who listed various ways that advocates had successfully used federal environmental statutes to address inequalities in many of California’s minority and low-income communities. I saw ...

Bureaucracy Bashing, Obama Style

by Rena Steinzor | February 09, 2012
Political scientists have coined the term “bureaucracy bashing” to connote the temptation now rife among national politicians to beat up on the civil service for reasons that have nothing to do with reality.  Ronald Reagan pioneered this art form of disrespecting bureaucrats in the name of downsizing government, even as federal deficit spending on government programs he favored grew to epic proportions.  Ironically, President Obama has lifted the same hammer in an altogether unsuccessful effort to placate the conservative critics ...

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