Full Speed Ahead!

by Daniel Farber | December 13, 2010

Cross-posted from Legal Planet.

On Friday the D.C. Circuit rejected efforts to stay EPA’s pending greenhouse gas regulations until the court decides the merits of the appeals.  It could well take a year or more for the merits to be decided, so in the meantime EPA can move forward.

The court order does not indicate any view on the merits of the cases, but the court clearly rejected the doomsday scenario painted by industry and the state of Texas:

Petitioners have not satisfied the stringent standards required for a stay pending court review. See Washington Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977); D.C. Circuit Handbook of Practice and Internal Procedures 32 (2010). Specifically, with regard to each of the challenged rules, petitioners have not shown that the harms they allege are “certain,” rather than speculative, or that the “alleged harm[s] will directly result from the action[s] which the movant[s] seeks to enjoin.” Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam).

The challengers did win a partial victory, however, because the court agreed to consolidate all of the various challenges before the same panel. However, consolidation will mean even longer delays as the three judges struggle with thousands of pages of briefs and records.

The Supreme Court could reverse the stay denial, but that seems highly unlikely given that the order was ...

The "State Sovereignty Wildlife Management Act" is as Ridiculous as it Sounds

by Dan Rohlf | December 07, 2010
Apparently feeling their oats after the Republicans captured control of the U.S. House in November’s elections, several GOP representatives from western states are already galloping out of the gates to attempt to roll back species protections in the West. They’ve initially set their sights on gray wolves in the Northern Rocky Mountains, which were returned to the Endangered Species Act’s protected list by a court decision in August. A leader of the anti-wolf posse is Rep. Rob Bishop of Utah, ...

AEP v. Connecticut: Will the Supreme Court Shut the Door Again?

by Alice Kaswan | December 06, 2010
The environmental blogosphere is already abuzz over the Supreme Court’s grant of certiorari in AEP v. Connecticut. The case is of critical importance in determining whether the courts have a role to play in adjudicating climate change. Few believe that the courts are a good venue for developing climate policy. But for the foreseeable future, the question is whether the traditional common law can fill in for Congress’ failure to take more comprehensive action. In AEP, Connecticut, along with several other states and ...

SCOTUS Grants Cert in AEP v. Connecticut; Why the Threat of Tort Liability Should Remain as Part of the Balance of Powers

by Douglas Kysar | December 06, 2010
The Supreme Court this morning granted certiorari in the case of American Electric Power Co. v. Connecticut, a common law nuisance suit seeking an order compelling large electric utility companies to reduce their contributions to global climate change. At issue will be a variety of doctrines – such as standing and political question – that nominally originate from constitutional limitations on the role of the judicial branch, but that judges have, over the years, expanded well beyond the text and structure ...

Links: The EPA at 40

by Ben Somberg | December 06, 2010
With the 40th anniversary of EPA last week, there's been some useful writing on the big picture of the history. I wanted to highlight: Steve Cochran at EDF has the first in a series on the Clean Air Act and its record of protecting us from pollutants. Post one: the acid rain program. Ruth Greenspan Bell at World Resources Institute takes us through some of the history to show that for EPA regulations, cost predictions are overstated. Lisa Jackson outlined her ...

Maryland Submits Chesapeake Bay Cleanup Plan; Here's A First Look

by Yee Huang | December 03, 2010
Maryland submitted its final Phase I Watershed Implementation Plan for Chesapeake Bay restoration this afternoon. It's the strongest blueprint of any of the states, and if implemented and funded sufficiently would allow Maryland to achieve its needed share of pollutant reductions. Maryland has pledged to implement, by 2017, the pollutant controls necessary to achieve 70% of its needed reductions, and to an accelerated timeline by implementing all necessary pollutant controls by 2020. The plan has the most promise of any ...

Double Duty: Will the Montreal Protocol Some Day be Used to Combat Climate Change?

by Yee Huang | December 02, 2010
a(broad) perspective In 1974, atmospheric scientists discovered that chlorofluorocarbons (CFCs) were causing the alarming depletion of the protective ozone layer that shields all life on Earth from the harmful ultra-violet radiation from the sun. These CFCs were present as propellants in aerosol cans and also used as refrigerants. The global scientific consensus and the severity of ozone depletion motivated the international community to establish the Montreal Protocol on Substances that Deplete the Ozone Layer (Montreal Protocol), one of the most successful international ...

Procedural Maze Continues for Vehicle Efficiency Regulation

by Lena Pons | December 01, 2010
Update: EPA and NHTSA have issued the Supplemental Notice of Intent. The regulatory process is often complex: agencies must balance opportunities for public comment, complex scientific information, and economic analysis, all while trying to craft a program that fulfills a legal mandate. But when it comes to crafting proposals for vehicle fuel economy and greenhouse gas standards, the process has become an administrative nightmare. In May, President Obama announced plans for the EPA and National Highway Traffic Safety Administration (NHTSA) to ...

Most Chesapeake Bay Watershed States Submit Cleanup Plans; A First Look at Virginia's

by Yee Huang | November 30, 2010
Yesterday was the deadline for Bay states and the District of Columbia to submit their final Phase I Watershed Implementation Plans (WIP). These WIPs are roadmaps that describe how Bay jurisdictions will meet their pollutant reduction obligations under the Bay TMDL. Delaware, the District of Columbia, Pennsylvania, Virginia, and West Virginia submitted their plans by the deadline, while Maryland expects to submit in the coming days. New York, which has taken a position essentially in opposition to the Bay TMDL, has not said ...

FWS' Critical Habitat Area Designation for Polar Bears is Good News, but How Much Difference Will it Make?

by Dan Rohlf | November 30, 2010
First the good news: the U.S. Fish and Wildlife Service (FWS) last week designated a huge expanse of barrier islands, denning areas, and sea ice in the Arctic as “critical habitat” for polar bears under the federal Endangered Species Act. The largest such protected area in the ESA’s history, the new critical habitat covers an area larger than the states of Oregon and Washington combined. FWS listed polar bears as “threatened” in 2008, after a petition from environmental organizations and ...

CEQ Finalizes Guidance for Categorical Exclusions

by Holly Doremus | November 24, 2010
Cross-posted from Legal Planet. The White House Council on Environmental Quality has issued the first of three expected final guidance documents for federal agencies implementing the National Environmental Policy Act. This one, which covers the use of categorical exclusions, is an excellent start. NEPA is the “look before you leap” environmental law. It requires that federal agencies publicly evaluate environmental impacts before taking action. That means preparing an Environmental Impact Statement before taking actions that significantly affect the quality of ...

Coal Ash Comments Submitted: Get Serious, Please

by Ben Somberg | November 19, 2010
"In order for CBA [cost benefit analysis] to be workable, regulators need to have a relatively restricted range of possibilities." That's what OIRA Administrator Cass Sunstein wrote in a 2007 book. So how about from $82 billion to negative $251 billion, a third of a trillion dollars – is that a relatively restricted range? Those are the estimated net benefit figures, over 50 years, in the Regulatory Impact Analysis (RIA) for EPA's "strong" coal ash regulation proposal. Do those numbers ...

Jacob Lew Confirmed as Director of OMB

by Ben Somberg | November 19, 2010
Senator Mary Landrieu released her hold on the nomination of Jacob Lew for Director of the Office of Management and Budget, and the Senate confirmed Lew by voice vote Thursday evening. Back when Lew had his confirmation hearings, CPR President Rena Steinzor wrote here about the challenges Lew will face on the regulatory front ("OMB Nominee Jacob Lew, Meet Broken Regulatory State"). ...

War on Regulation Coming to the States? Why IPI's Plan For Centralized Regulatory Review Isn't What We Need

by Rena Steinzor | November 17, 2010
One of the most powerful sleights of hand achieved by Republicans during the last election cycle was their renewed declaration of war on regulation. It’s no secret which of their interest groups are most passionate about this aspect of their agenda. Tuesday's LATimes previewed a plan by the Chamber of Commerce, to be announced today, to further unleash its lobbying legions against regulations as soon as the new congress is anointed. But it's unlikely the Chamber will get too specific on which popular ...

Welcome Clarity and Few Surprises in EPA's Guidance on Greenhouse Gas Permitting

by Victor Flatt | November 17, 2010
Last week the EPA released its “PSD and Title V Permitting Guidance For Greenhouse Gases.” This Guidance was designed to give the states direction in how to implement permitting requirements for new sources for other criteria pollutants that also produce greenhouse gases on January 2, 2011, and new sources of greenhouse gases following in May, 2011, under the Clean Air Act’s Prevention of Significant Deterioration Program. The Guidance does an excellent job of summarizing and explaining how the EPA’s current PSD ...

EPA Moves Forward With Numeric Nutrient Criteria for Florida Waters; Plan Will Begin in 15 Months

by Ben Somberg | November 15, 2010
The EPA announced this morning that it has finalized numeric nutrient criteria for Florida waters -- specific limits on the amounts of nutrient pollutants allowed in the state's water bodies. These criteria will in turn limit discharges by point and non-point sources. Currently, nutrient limits are set only by "narrative" water quality standards -- which have little teeth. The EPA agreed last year to set the limits following a consent decree reached after a coalition of environmental groups sued the ...

The Goose, the Gander, and an OIRA Checklist

by James Goodwin | November 11, 2010
Late last month, the White House Office of Information and Regulatory Affairs (OIRA) posted on its website a document called Agency Checklist: Regulatory Impact Analysis, which, according to the document, is intended to assist federal regulatory agencies with Executive Order 12866-required cost-benefit analyses (CBAs). Such analyses have become a standard, if fatally flawed, stage in the regulatory process.  Substantively speaking, OIRA’s document contains nothing new or particularly earth-shattering—instead, it is merely a checklist of some of the requirements for CBAs established ...

OSHA's High Hazard Industries – a Look at Some Data

by Matt Shudtz | November 10, 2010
Every year, OSHA mails a letter to about 15,000 employers who run high-hazard worksites, warning them that their most recent annual injury and illness rates were well above average. According to OSHA, For every 100 full-time workers, the 15,000 employers had 4.5 or more injuries or illnesses which resulted in days away from work, restricted work or job transfer. The national average is 2.0. The letters went out in March, but I just got around to digging into the list of ...

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