Draft ESA Listing Policy Suggests "Museum Piece" Approach to Species Conservation

by Dan Rohlf | December 13, 2011

A draft policy released for comment last week by the U.S. Fish and Wildlife Service and National Marine Fisheries Service took on the challenging question of defining the circumstances under which only a portion of an ailing species may be eligible for federal protection under the Endangered Species Act. Unfortunately, the Services’ proposal continued the agencies’ trend toward restrictively interpreting the ESA’s listing provisions. If finalized, the new policy will likely result in fewer protections for formerly widespread species, such as gray wolves, that now inhabit only a fraction of their former range.

The ESA defines “endangered species” as species in danger of extinction “throughout all or a significant portion of its range.” Litigation over the past decade raised a host of questions as to exactly what Congress meant by the latter phrase: Can the Services list a species as threatened or endangered in only a “significant portion” of its range even if the species is doing relatively well in other portions of its range? Does the “range” of a species mean its historic range or its current range? And just what is a “significant portion” of a species’ range?

Though such questions may seem rather arcane, they go to the heart of significant listing controversies under the ESA. Perhaps the highest profile dispute involves gray wolves, which last year became the first species delisted by Congressional fiat (though only in the Northern Rocky Mountains) in response to court ...

House Passes REINS Act; CPR's Shapiro Responds

by Sidney Shapiro | December 07, 2011
Within the last hour, the House of Representatives approved the Regulations from the Executive in Need of Scrutiny Act – the REINS Act. The bill was among House Republicans’ top priorities for the year, and they’ve made it and a series of other anti-regulatory bills a centerpiece of their agenda. The plain purpose of the REINS Act is to make it all but impossible for the nation’s regulatory agencies to adopt regulations that would enforce a host of protective laws, ...

What David Brooks Gets Right -- Regulations Aren't Tanking the Economy -- and What He Misses

by Isaac Shapiro | December 07, 2011
Cross-posted from the Economic Policy Institute's Working Economics blog. Isaac Shapiro is EPI's Director of Regulatory Policy Research. The House of Representatives is poised to vote for the REINS (Regulations From the Executive in Need of Scrutiny) bill today; this would come on top of votes on two bills last week that would also upend the regulatory process.  These efforts are premised on assertions that regulations are greatly damaging the economy, and David Brooks’ op-ed Tuesday is another timely reminder that these ...

Sen. McCaskill Joins the Republican Attack on Regulations with Misguided Bill

by Sidney Shapiro | December 07, 2011
On Tuesday, Senators Susan Collins (R-ME) and Claire McCaskill (D-MO) introduced the Bipartisan Jobs Creation Act, legislation that offers a number of proposals for jump-starting the economy.  The bill includes two provisions that would hobble the regulatory system without generating the new jobs that the Senators seek. If these provisions were enacted, the bill would block regulatory safeguards that protect all Americans and our environment. The bill’s regulatory provisions would make it harder for the EPA and other regulatory agencies ...

Don Blankenship Still Needs to Be Prosecuted

by Rena Steinzor | December 06, 2011
Booth Goodwin, the U.S. Attorney for the southern district of West Virginia, and Attorney General Eric Holder announced today a landmark settlement with Alpha Natural Resources, the coal company that bought out its rival Massey Energy after a catastrophic explosion deep within the Big Branch mine killed 29 miners.  Alpha recently announced that its third quarter 2011 profits had more than doubled in the wake of its purchase of  Massey, up to $66 million in the quarter.  The settlement requires ...

David Brooks on OIRA

by Rena Steinzor | December 06, 2011
New York Times columnist David Brooks weighs in this morning on CPR’s latest report, Behind Closed Doors at the White House: How Politics Trumps Protection of Health, Worker Safety and the Environment. To his credit, he begins by dismissing one of congressional Republicans’ principal lines of argument for 2011 – that an imagined tsunami of Obama Administration regulatory excess is somehow at the root of the nation’s economic distress. In fact, almost any economist will tell you that we got ...

OIRA's All-You-Can-Meet Policy in Practice: Indulging Industry Lobbyists (It Doesn't Have to Be This Way)

by Ben Somberg | December 02, 2011
The CPR white paper on OIRA earlier this week looked at how this little office within OMB facilitates an industry-dominated process that serves to weaken regulations proposed by federal agencies. Appearances by industry representatives have outnumbered those by public interest lobbyists more than 5-to-1 in meetings at OIRA in the last ten years, the paper found (3,763 to 708, for the record). Does it have to be this way? The Obama Administration has said on numerous occasions that it has ...

OSHA Expands National Emphasis Program for Chemical Facility Process Safety Management

by Matt Shudtz | December 01, 2011
This week OSHA expanded a two-year-old enforcement program aimed at preventing catastrophic release of highly hazardous chemicals—the type of headline-grabbing event that ruined thousands of lives in Bhopal in 1984 and was narrowly avoided in West Virginia in 2008.  Originally targeted at just three regions (and optional for state-plan states in those regions), the National Emphasis Program for PSM Covered Chemical Facilities (aka “Chem NEP”) has now been expanded nationwide and requires all state-plan states to adopt their own version ...

Sweeping Anti-Reg Bills Reach House Floor

by Ben Somberg | December 01, 2011
The “Regulatory Flexibility Improvements Act” (RFIA) and the “Regulatory Accountability Act” (RAA) are headed for votes on the House floor shortly (today and/or tomorrow). The “Gum Up Public Health and Safety Protections Act” apparently wasn’t going to sell as well. A quick recap of the Regulatory Accountability Act, via CPR Member Scholar Sidney Shapiro’s Congressional testimony on the bill in October: The regulatory system is already too ossified, and H.R. 3010 would only exacerbate this problem.  It currently takes four to ...

Is State Ownership of Public Trust Waters At Risk When SCOTUS Hears PPL Montana v. Montana?

by Robert Adler | November 30, 2011
When the U.S. Supreme Court hears oral argument in PPL Montana, L.L.C v. State of Montana on December 7, it will consider issues of constitutional history dating to the early days of the American Republic and legal sources that some claim (and others dispute) trace to Magna Charta and the Institutes of Justinian in Roman law. The court will also consider a factual record that includes the journals of the Lewis and Clark expedition. Moreover, the case involves a challenge for ...

Even More Evidence Disputes Claims that Regulation Is Stalling Economic Recovery, But Regulatory Opponents Continue to Press Their (False) Claims

by Sidney Shapiro | November 29, 2011
Republicans in the House have spent much of the fall trying to blame regulation for the nation’s slow economic recovery.  The fact that there is no reasonable evidence to back up this claim is apparently not a concern for the regulatory opponents.  Moreover, regulatory opponents skip entirely over the impacts of the failure to regulate, pretending that while regulation imposes costs on the economy, the failure to regulate does not.  Now, there is even more evidence of that regulation cannot ...

New Report: Behind Closed Doors at the White House, Obama Administration Politicizes the Regulatory Process

by Rena Steinzor | November 28, 2011
When former Harvard Law Professor and eclectic intellectual Cass Sunstein was named administrator of the Office of Information and Regulatory Affairs (OIRA), conservative, industry-oriented Wall Street Journal editorial writers enthused that his appointment was a “promising sign.” A slew of subsequent events has proved their optimism well placed, as we have noted repeatedly in CPRBlog.  But nothing beats hard, empirical evidence.  In a report released today, CPR announces the results of an exhaustive six-month analysis of the barebones information OIRA ...

Small Business Owners: Top Concern is Poor Sales. Blanche Lincoln: Top Concern is Regulations.

by Ben Somberg | November 22, 2011
Former Senator Blanche Lincoln, currently heading an anti-regulatory campaign called “Small Businesses for Sensible Regulation,” appeared on CNBC on Friday to make her case. Lincoln’s been busy trying to use different iterations of a debunked SBA report claiming astronomical costs for regulations. This time she skipped that piece, but offered this take (at 3:15): This is the single most important issue to small businesses. It’s the biggest threat. The compliance with government regulations that don’t make sense, that cost ‘em ...

Sore Losers: Two House Subcommittee Chairs Want to Discount the Lives of Seniors in Last-Ditch Effort to Downplay Benefits of Clean Air Regulation

by Amy Sinden | November 17, 2011
Remember that kid on the playground who always insisted on changing the rules of the game and then still threw a tantrum when he lost? That’s just the kind of spoiled-brat behavior we’re seeing from the coal industry and its elected agents on Capitol Hill this week. Coal and other polluting industries have spent decades complaining about the federal laws that protect public health and the environment, arguing that we should change the rules by which they operate, forcing agencies to perform ...

Fifth Circuit Mulls Katrina Flood Ruling

by Robert Verchick | November 15, 2011
    Today’s question: When are flood waters not “flood waters”? We New Orleanians have become fluent in all things subaqueous; last week three Texans sitting on the Fifth Circuit Court of Appeals took their turn. Yes, we’re talking about Katrina. Or, more specifically, its flood waters, which busted federal levees in fifty places, swamped 80% of New Orleans, and caused 800 deaths in the urban area. It is beyond argument that federal malfeasance played a key role. But sovereign immunity ...

TransCanada Says Nebraska Bill on Pipeline Rerouting Is Unconstitutional. Here's Why They're Wrong.

by Sandra Zellmer | November 14, 2011
The Nebraska Legislature is in a special session currently to consider five bills concerning the proposed Keystone XL pipeline. The situation was shaken up by Thursday’s announcement from the Obama Administration that it was pushing back its decision on federal approval of the pipeline. This news may take away some urgency for the Nebraska Legislature, but considering that no options (including the original proposed route) have been taken off the table, the bills remain firmly relevant. Nebraska—and any other states ...

What's New in Climate Economics

by Frank Ackerman | November 09, 2011
Cross-posted from Real Climate Economics. Economic analysis has become increasingly central to the climate policy debate, but the models and assumptions of climate economics often lag far behind the latest developments in this fast-moving field. That’s why Elizabeth Stanton and I have written Climate Economics: The State of the Art, an in-depth review of new developments in climate economics and science since the Stern Review (2006) and the Intergovernmental Panel on Climate Change’s Fourth Assessment Report (2007), with more than ...

How the Tenth Circuit Upheld the Clinton-era Roadless Rule

by Holly Doremus | November 08, 2011
Cross-posted from Legal Planet. You wouldn’t think courts would still be deciding, late in 2011, whether actions taken by the Clinton Administration were lawful. But they are. Late last month, the Tenth Circuit upheld the Roadless Rule for national forests issued at the very end of the Clinton presidency. The Roadless Rule, which largely prohibited road construction and timber harvest in inventoried roadless areas, has been the subject of a game of judicial and executive ping-pong. Wyoming challenged the rule, ...
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