The Questionable Legal Basis of the EPA 'Transparency' Proposal

by Daniel Farber | April 30, 2018

"They sat at the Agency and said, 'What can we do to reimagine authority under the statutes to regulate an area that we are unsure that we can but we're going to do so anyway?'"

When he said those words, Scott Pruitt was talking about the Obama administration. But it seems to be a pretty accurate description of the "transparency" proposal he issued last week.

Everyone agrees that it would be good to increase the public availability of scientific information for independent validation. But Pruitt's proposal is designed to provide EPA with a license to ignore studies that it views as insufficiently transparent – for example, when it cannot agree with investigators over how to protect patient confidentiality if health data is made public. This would allow it to ignore inconvenient evidence about the dangers of various forms of pollution. The proposal cites a string of congressional enactments as its basis, with no explanation of their relevance. But then it asks the public for suggestions about whether there are additional or different provisions it should be citing. Obviously, EPA is not at all confident that it has found the right legal peg on which to hang the proposal.

In my view, the federal statutes not only fail to support the proposal but instead require consideration of all relevant scientific evidence. The provisions cited by the EPA proposal provide flimsy support – thus the plaintive cry for legal assistance ...

Workers' Memorial Day 2018

by Katie Tracy | April 25, 2018
On Saturday, April 28, CPR will observe Workers' Memorial Day by remembering fallen workers whose lives were taken from this world too soon and by renewing our pledge to fight for all working people.  Every day in this country, 14 workers leave for work, never to return home. One worker is killed on the job every two hours in the United States. In 2016, 5,190 workers died earning a living, the highest number on record in eight years. That doesn't ...

Recipe: Turning the House's Lemon of a Farm Bill into Lemonade

by Laurie Ristino | April 25, 2018
Last week, the House Agriculture Committee passed a pock-marked, micro-legislated Farm Bill along strict party lines. It's a shameful goody bag of legislative delights for a few that comes at the expense of the majority of the American people.  Some lowlights: The bill holds our hungriest Americans hostage by conditioning SNAP benefits (food stamps) on job training (what kind of country withholds food from its citizens?); reduces conservation dollars that are critically needed given the pitiful state of soil health ...

Scholars Call Out Congressional Committee for 'Mythification' of NEPA

by James Goodwin | April 24, 2018
Tomorrow, anti-environmental members of the House Natural Resources Committee will hold a hearing provocatively titled, "The Weaponization of the National Environmental Policy Act and the Implications of Environmental Lawfare" – yet another in a long line of conservatives' attempts to justify myriad legislative attacks against this bedrock environmental law. As more than 100 CPR Member Scholars and other academic leaders explain in a letter to committee members, though, the hearing would be more aptly titled "The Mythification of NEPA."  The ...

Unlearned Lessons from the 'Toxic Soup': Floods, Industrialization, and Missed Opportunities

by Elena Franco | April 18, 2018
This post is part of a series about climate change and the increasing risk of floods releasing toxic chemicals from industrial facilities. As Hurricane Harvey lingered over Texas in 2017, it created a wall of water that swallowed much of Houston. Catastrophic flooding over a wide swath of southern Texas left towns, cities, and the countryside under feet of water. The floodwaters sloshed toxic chemicals from the area's 10 oil and gas refineries, 500 chemical plants, and 12 Superfund sites ...

Promoting Energy Innovation

by Daniel Farber | April 13, 2018
An MIT professor has a great idea for a molten metal battery that could outperform lithium batteries. Of course, like many great ideas, this one might not pan out. But even if it does pan out technically, Grist explains one reason why it might never get to the commercial stage: Ultimately, the thing that makes lithium-ion so tough to topple is something called the "experience curve." The curve maps how, over time, in many different sectors, increases in scale lead ...

At House Judiciary Hearing, CPR's Hammond Calls Out Efforts to Rig Environmental Review Process

by James Goodwin | April 12, 2018
This morning, CPR Member Scholar and George Washington University Law Professor Emily Hammond is set to testify before the House Judiciary Committee's Subcommittee on Regulatory Reform, Commercial, and Antitrust Law at a hearing that will look at two highly flawed bills. While their particulars differ, each is conspicuously (if a bit clumsily) designed to rig the environmental permitting process to allow industry groups to ram through big infrastructure and construction projects while shutting out the public from its traditional and ...

CPR's 2018 Op-Eds, Part One

by Matthew Freeman | April 11, 2018
CPR’s Member Scholars and staff are off to a fast start on the op-ed front in 2018. We list them all on our op-ed page, but here’s a quick roundup of pieces they’ve placed so far. Member Scholar Alejandro Camacho joins his UC-Irvine colleague Michael Robinson-Dorn in a piece published by The Conversation. In "Turning power over to states won't improve protection for endangered species," they summarize their recent analysis of state endangered species laws and state funding for enforcement. They ...

Halftime for the Chesapeake Bay: New Webpage on Midpoint Assessment of Pollution Cleanup Effort

by Evan Isaacson | April 09, 2018
The Center for Progressive Reform has been closely watching the development and implementation of the Chesapeake Bay restoration plan since its inception. As part of our ongoing commitment to ensure the success of the plan, known as the Bay TMDL, we have developed a new web-based resource focused on the issues and decisions related to the TMDL's midpoint assessment process. The page is a one-stop shop for advocates, members of the media, and residents concerned about restoring the health of the Chesapeake Bay, as well ...

New Policy Research from CPR's Verchick Featured in Royal Society Report on Paris Climate Accord

by David Flores | April 05, 2018
A new report in the Philosophical Transactions of the Royal Society A published earlier this week presents a suite of new scientific and policy research meant to improve and drive forward progress under the Paris Climate Agreement. The report – from the oldest science journal in the western world – is the culmination of presentations first delivered by attendees at the 25th anniversary conference of the University of Oxford's Environmental Change Institute. CPR Board President and Member Scholar Rob Verchick ...

Climate Change in the Courts

by Daniel Farber | April 02, 2018
There are three important climate lawsuits pending in federal court. Here's the state of play and what to expect next. In the first case, Oakland and San Francisco sued leading oil companies. They claim that the companies' production and sale of fossil fuels is a public nuisance under California state law. They seek an abatement fund to pay for sea walls and other infrastructure needed to address rising sea levels. This lawsuit was originally filed in California state court, but ...

Coal and Nuclear Plant Bailout Would Be Unjustified Use of DOE's Emergency Authority

by Joel Eisen | March 30, 2018
It's no secret that the Trump administration and coal companies have drawn a bullseye on reversing coal's declining fortunes in wholesale electricity markets, where competition and inexpensive natural gas have driven coal's market share down from 50 percent in 1990 to about 30 percent today. Feeling bullish about their prospects in a sympathetic administration, owners of coal and nuclear plants have tried to extract subsidies to prevent what they view as premature retirements of large power plants.  This January, the ...

What Happens on the Land Happens to the Water

by Evan Isaacson | March 29, 2018
This post is part of an ongoing series on the midpoint assessment and long-term goals of the Chesapeake Bay cleanup effort. In my last post, I described how a database housed by the Maryland Department of the Environment allows tracking of land development activities in real time. This database not only gives us the ability to track the recent scale and pattern of habitat destruction in Maryland, but it also can be used by regulators to build a tool that will allow ...

What the Failure to Account for Growth Looks Like in Maryland

by Evan Isaacson | March 28, 2018
This post is part of an ongoing series on the midpoint assessment and long-term goals of the Chesapeake Bay cleanup effort. In a recent post, I described the broad failure of Chesapeake Bay states to follow EPA's basic expectations to account for pollution growth under the restoration framework known as the Bay TMDL. This failure is one important contributor to the current state of the Bay restoration, which is years behind schedule. If states don't hold the line on new pollution by ...

The Guidance Racket

by Rena Steinzor | March 27, 2018
Originally published on The Regulatory Review. Reprinted with permission. The spirited conservative attack on regulatory guidance is both puzzling and hypocritical. Admittedly, agencies sometimes issue guidance to avoid the quicksand of informal rulemaking. But the law makes clear that without full-dress procedure, guidance can never replace rules and statutes in enforcement actions. Remedying agency overreach in the rare circumstances when enforcement cases are based primarily on guidance is a straightforward legal matter—defendants have only to tell their problems to a judge. ...

Oversight Needed for Maryland's Occupational Safety and Health Division

by Katie Tracy | March 26, 2018
Maryland's Occupational Safety and Health division (MOSH) is struggling to carry out its mission of ensuring the health and safety of Maryland workers, according to CPR's analysis of a mandatory performance report the agency provided to the state legislature late last year. The Maryland legislature mandated the report as a condition of releasing $250,000 of MOSH's FY 2018 funds. Our review of the report and other agency materials leads us to conclude that the agency's limited budget is a key ...

Holding the Line on New Pollution While We Clean Up the Chesapeake Bay

by Evan Isaacson | March 21, 2018
This post is part of an ongoing series on the midpoint assessment and long-term goals of the Chesapeake Bay cleanup effort.  A few weeks ago, I discussed why the periodic written "expectations" from the Environmental Protection Agency (EPA) are critically important to the Chesapeake Bay's restoration. These expectations communicate to the state and federal partners in the Chesapeake cleanup effort what they need to do and when in order to implement the coordinated plan of action necessary to reach the ...

Threat from Climate-Induced Spills Goes Beyond Superfund and Toxic Release Inventory Sites

by David Flores | March 19, 2018
This post is the first in a forthcoming series about climate change and the increasing risk of floods releasing toxic chemicals from industrial facilities in Virginia. At the tail end of winter, a succession of "bomb cyclones" and nor'easters has brought fierce winds and surging coastal flooding to the mid-Atlantic and Northeast. These storms remind us of the deepening vulnerability of our coastal and riverfront communities and infrastructure to intensifying extreme weather and flooding. This "freakish" winter weather comes just ...
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