The Endangerment Litigation

by Daniel Farber | June 01, 2011

Cross-posted from Legal Planet.

I’ve just spent some time reading the initial briefs in the D.C. Circuit on the endangerment issue.  They strike me as much more political documents than legal ones.

A brief recap for those who haven’t been following the legal side of the climate issue.  After the Bush Administration decided not to regulate greenhouse gases under the Clean Air Act, the Supreme Court held that greenhouse gases would be covered if they met the statutory requirement of endangering human health or welfare.  After much stalling by the Bush administration, EPA followed the scientific consensus by finding that (1) yes, climate change is real and caused by human emissions of greenhouse gases, and (2) that climate change would indeed harm humanity (including Americans).  That determination is now being challenged by states such as Texas and Virginia and various other parties like the Chamber of Commerce.

Why do I say that the documents seem more legal than political to me?  Two reasons: they rely on debaters’ points that don’t survive examination of the record, and they are crafted to appeal primarily to ideological fellow-travelers rather than the open-minded.

First, like much political argument, briefs make assertions that depend for their credibility on the unwillingness or inability of the audience to engage in fact-checking.  For example, they assert that EPA delegated its decision-making to outside groups like the IPCC; it’s plain to anyone who reads the EPA ...

OSHA Releases Self-Evaluation of its Role in Federal Response to BP Oil Spill

by Matt Shudtz | May 31, 2011
OSHA published a report (pdf) last week on its role in the federal government’s response to last year’s massive oil spill. Within days of the blowout aboard the Deepwater Horizon, OSHA officials were in Louisiana, working to ensure that the people involved in the response and cleanup had adequate protection from the myriad hazards they would face. The new report is mainly a list of accomplishments, not an introspective “lessons learned” self-evaluation that could have paved the way for policy changes that ...

The New BOEMRE-NOAA MOU: A Good Start, But More is Needed

by Holly Doremus | May 27, 2011
Cross-posted from Legal Planet. I was excited to read this story in the LA Times, saying that BOEMRE and NOAA had reached an agreement that would give NOAA more say in decisions to approve offshore drilling. (Draw whatever conclusions you like about what my geeky excitement says about how boring my life must be.) This agreement is certainly needed, as the Deepwater Horizon Oil Spill Commission has noted, and as I’ve written in this paper forthcoming in Boston College’s Environmental ...

Administration's Regulatory 'Look-Back' Announcement Panders to Industry, Focuses Primarily on Eliminating Regs, Diverts Agencies from Crucial Work

by Amy Sinden | May 26, 2011
Following up on President Obama’s January Executive Order calling for agencies to conduct a regulatory “look-back,” the Administration today released a target list of health, safety, and environmental standards to be reviewed by agencies in the coming months, with an eye toward eliminating or modifying them. The President’s January announcement was driven by politics, and from all appearances, the process of reviewing these regulations will be as well. In an op-ed in today’s Wall Street Journal, and in a speech ...

Sunstein to Outline Regulatory Review Plans; Industry Yawns; Public Health and Safety Agencies Lose out from Diverted Resources

by Rena Steinzor | May 25, 2011
Office of Information and Regulatory Affairs (OIRA) Administrator Cass Sunstein heads to the American Enterprise Institute Thursday morning to speak about federal agencies' plans to "look back" at and review existing regulations. Meanwhile, agencies statutorily obligated to protect public health and safety, such as EPA and OSHA, are diverting resources from pressing work so that they can structure and soon carry out a hunt for a supposed treasure of frivolous old regulations that need to be revised or eliminated. Strikingly, ...

The McAteer Report: A Mine Safety Blockbuster

by Thomas McGarity | May 19, 2011
The report issued this morning by the Governor's Independent Investigation Panel on the West Virginia mine explosion that killed 29 miners at the Massey Energy Company’s Upper Big Branch Mine just over a year ago will never make the New York Times best seller list. But it should be required reading for all policymakers with responsibility for protecting the safety of the workers who spend much of their lives deep underground digging coal. Although the Mine Safety and Health Administration ...

Lisa Jackson Steps Back (Again) on Boiler MACT: One of the Top 12 Rules Now in Indefinite Limbo. Delay Violates the CAA

by Rena Steinzor | May 18, 2011
This post was written by CPR Member Scholars Rena Steinzor and Catherine O'Neill, and Policy Analyst James Goodwin. By any reasonable estimation, it should have been a jewel in the EPA’s regulatory crown. Released in February, the EPA’s final Boiler MACT rule (actually, it’s two rules—one addressing large boilers and the other addressing smaller ones) would annually prevent up to nearly 6,600 premature deaths, more than 4,000 non-fatal heart attacks, more than 1,600 cases of acute bronchitis, and more than 313,000 ...

Inventory Update Reporting Rule Delayed Following Five Industry Meetings at the White House and Some Specious Claims

by Matt Shudtz | May 13, 2011
EPA announced Wednesday that it is delaying the reporting period for its Inventory Update Reporting requirement. It's not good news. EPA had announced its intention to revise (pdf) the TSCA Inventory Update Rule (IUR) back in August of last year. The TSCA Inventory is the official list of chemicals in commerce, and the IUR is the regulation that requires companies to submit production and use data to EPA to ensure the Inventory accurately represents all of the chemicals out there. Determining the ...

Tester: Don't Get the (Toxic) Lead Out

by Dan Rohlf | May 10, 2011
In an impressive effort to demonstrate that crafting bad environmental legislation knows no partisan boundaries, Democratic Senator John Tester of  Montana – who recently spearheaded a successful effort to remove wolves from the endangered species list through a budget maneuver – last month introduced legislation to block the Environmental Protection Agency from regulating lead ammunition under the Toxic Substances Control Act (TSCA). Several environmental organizations last year petitioned EPA to mandate the use of non-lead bullets and shot, noting that ...

Will the Atmosphere Make it as the Public Trust Doctrine's Next Frontier?

by Alexandra Klass | May 06, 2011
On Wednesday, Our Children's Trust, an Oregon-based nonprofit, made headlines when it began filing lawsuits on behalf of children against all 50 states and several federal agencies alleging that these governmental entities have violated the common law public trust doctrine by failing to limit greenhouse gas emissions that contribute to climate change.  The claims seek judicial declaration that states have a fiduciary duty to future generations with regard to an “atmospheric trust” and that states and the federal government must ...

Did Environmentalists Kill Climate Legislation?

by Frank Ackerman | May 06, 2011
Cross-posted from Triple Crisis. Climate legislation, even in its most modest and repeatedly compromised variety, failed last year. And there won’t be a second chance with anything like the current Congress. What caused this momentous failure? Broadly speaking, there are two rival stories. It could be due to the strength of opposing or inertial forces: well-funded lobbying by fossil fuel industries, biased coverage by increasingly right-wing media, the growth of the “Tea Party” subculture and its rejection of science, dysfunctional ...

States' Proposal for Meeting Federal Climate Change Rules an Opportunity to Think Seriously about Regional RPS

by Kirsten Engel | May 05, 2011
States are seeking EPA approval to meet climate change-related standards through programs that the states themselves have pioneered. Greenwire reported last month that California, New York and Minnesota, as well as about a dozen power companies and advocacy groups, are urging U.S. EPA to let states meet the forthcoming New Source Performance Standards under the Clean Air Act through the Regional Greenhouse Gas Initiative, California’s forthcoming greenhouse gas cap and trade plan, as well as through clean or renewable portfolio ...

The Delays Get Delayier: The Sad First Year of EPA's Coal Ash Proposal

by James Goodwin | May 04, 2011
Before the Fukushima Daiichi nuclear disaster, before the BP oil spill in the Gulf of Mexico, and before the Upper Big Branch mine disaster, there was the TVA coal ash spill in Kingston, Tennessee. It was at Kingston, during the early morning hours on December 22, 2008, that an earthen dam holding back a 40-acre surface impoundment burst, releasing one billion gallons of inky sludge. The Kingston coal ash spill taught the American public about the catastrophic costs that can accompany so ...

Olympia Snowe, Deregulation, and Her 'Small' Business Cover

by Rena Steinzor | May 03, 2011
This great country of ours is quite fond of its enduring myths: poor kids are able to become rich kids by working hard, the family farm feeds us a nutritious bounty, and small business is the engine that makes our economy sing. When most of us hear that musical phrase—smaaaall business—we think of the local florist, ice cream shop, or shoemaker. How startling, then, to discover that according to the Small Business Administration (SBA) a petroleum refinery employing 1,500 workers is also ...

EPA and the Corps of Engineers Deserve Praise for Their Draft Guidance on the Jurisdictional Scope of the Clean Water Act

by William Andreen | May 02, 2011
During the past decade, the U.S. Supreme Court handed down two decisions that greatly reduced the extent of waters protected by the Clean Water Act (CWA). These cases upset the clearly articulated regulatory definition of “waters of the United States” that had been consistently applied and widely accepted as valid for many years.   Not only did the decisions threaten millions of acres of wetlands and thousands of headwaters with destruction and unregulated pollutant discharges, but the most significant of the two ...

SBA Official Changes Tune on OSHA Noise Initiative; Says His Office Was 'Unable to Evaluate' Possible Safety Benefits

by Ben Somberg | April 29, 2011
We noted earlier this month that a U.S. Small Business Administration official had claimed that the danger of workplace noise was solved just as well with earplugs as it is with reducing the noise at its source -- despite extensive research to the contrary ("Presidential Appointee at SBA Maligns OSHA's Industrial Noise Proposal; Claims Ear Plugs 'Solve' the Problem"). The official, Winslow Sargeant, Chief Counsel for Advocacy at the SBA, has since given a slightly different line. From BNA's Occupational ...

Disaster Planning and Recovery: Verchick Op-Eds in Christian Science Monitor and New Orleans Times-Picayune

by Matthew Freeman | April 29, 2011
Robert R.M. Verchick recently completed a two-year stint with the U.S. Environmental Protection Agency, and returned to his work at Loyola University in New Orleans, and, happily, to the rolls of active CPR Member Scholars. While at EPA, he published Facing Catastrophe: Environmental Action for a Post-Katrina World, and just a few days after returning to CPR, he's published two op-eds on disaster preparedness and recovery. In the Christian Science Monitor on April 13, he asked whether Japan's recovery from the ...

New Congressional Research Service Report Finds Major Trouble in SBA's Regulatory Costs Study

by Ben Somberg | April 22, 2011
It's their favorite figure: $1.75 Trillion. Repeated ad nauseam in congressional hearings by members of congress and expert witnesses alike, it is the supposed annual cost of regulations, this according to a study from last year commissioned by the Small Business Administration's Office of Advocacy. Sponsors of anti-regulatory legislation like the number: Olympia Snowe and Tom Coburn included it in the 'findings' of their bill, while Geoff Davis, chief sponsor of the REINS Act, cites it regularly. It's been used ...

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