ABA Makes a Positive Step with Resolution on Agency Preemption

by Bill Funk | August 13, 2010

In November 2008, with Riegel v. Medtronic recently decided, bills introduced into Congress to overturn its effect, and Wyeth v. Levine about to be argued in the Supreme Court, the President of the American Bar Association created a task force to review ABA policies regarding preemption of state tort law. The composition of the task force was equally split between those who generally favor preemption and those who generally oppose it and included both private practitioners and academics (I was one of those academics). Earlier this month the task force unanimously presented its recommendations to the House of Delegates of the ABA, the policy making body of the ABA, and the House adopted those recommendations by an overwhelming majority.

Eschewing any attempt to take a substantive position on the desirability of preemption of state tort law or the lack thereof, the task force focused on the procedures that should accompany any decision to preempt state tort law. The resolution urges that when Congress considers preempting state tort law it should take into account the historic responsibility States have exercised over the health and safety of their populace and to balance that responsibility against the competing concerns for national uniformity. Moreover, Congress should as a regular matter address foreseeable preemption issues clearly and explicitly when it enacts a statute that has the potential to affect state tort law. It should clearly and explicitly state when it intends to preempt state tort law and ...

Changes to TSCA Inventory Update Rule Could Help OSHA, Too

by Matt Shudtz | August 13, 2010
On Wednesday, EPA announced its intention to revise (pdf) the TSCA Inventory Update Rule (IUR). 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. This week's announcement marks the second time in ten years that EPA has decided the IUR needs improvement, based on agency staff’s efforts to regulate toxic chemicals ...

Agency Preemption of State Law

by Daniel Farber | August 12, 2010
Cross-posted from Legal Planet. Administrative agencies sometimes issue regulations that have the effect of overruling state law — and sometimes that is the sole effect of the regulation.  This proved quite controversial during the Bush Administration, which used agency rulemaking efforts to cut back on state tort law.  The ABA has a adopted a new resolution dealing with this issue.  The resolution reads: RESOLVED, That the American Bar Association urges Congress to address foreseeable preemption issues clearly and explicitly when ...

Update on Maryland's CAFO NPDES Permitting Program

by Yee Huang | August 11, 2010
In June, I wrote about a settlement between EPA and environmental groups that requires EPA to publish guidance on the implementation of National Pollutant Discharge Elimination System (NPDES) permits for concentrated animal feeding operations (CAFOs) and to propose a rule to collect more information on these operations. In that post, I cited numbers from EPA showing that states in the Chesapeake Bay Watershed had many CAFOs without NPDES permits; for some of the states, not a single CAFO was permitted. ...

CPR's Bratspies on Oil Spills in the Developing World

by Ben Somberg | August 11, 2010
CPR Member Scholar Rebecca Bratspies was recently on Chicago Public Radio's Worldview talking about oil spills in the developing world, the power of big companies in small nations, and the broader picture of resource extraction and its effects on people. Said Bratspies: "any oil company that doesn't cut the same corners that the worst player does is going to be at a competitive disadvantage, and that creates a snowball effect, of choices that are not sustainable and choices that are ...

WIP'ped Into Shape: Metrics for Ensuring Accountability for Chesapeake Bay Restoration

by Yee Huang | August 09, 2010
In the past 15 months, the combination of President Obama’s Chesapeake Bay Protection and Restoration Executive Order and the EPA’s Bay-wide Total Maximum Daily Load (TMDL) process has established a framework for ensuring accountability and success in Bay restoration efforts. No aspect of this new framework is more important than the Bay states’ and the District of Columbia’s Watershed Implementation Plans (WIPs), which will demonstrate how they will meet the pollution targets in the applicable TMDLs. While the soundness of ...

American Chemistry Council's Request for Correction on BPA Action Plan Exceeds the Limits of the Data Quality Act

by Lena Pons | August 06, 2010
The American Chemistry Council (ACC), a trade association that represents chemical industry interests and is heavily connected to the plastics industry, filed a Request for Correction Monday on the EPA's Chemical Action Plan for Bisphenol A (BPA). The request, filed under a provision of the Data Quality Act (also referred to as the Information Quality Act), is truly astonishing and bears noting. In addition to standard requests that EPA statements be toned down or removed due to conflicting studies, ACC makes several ...

Fifth Circuit's Ruling Puts Next Steps on Cooling Water Regulation and Cost-Benefit Analysis in Hands of Obama EPA -- and OIRA

by Amy Sinden | August 05, 2010
It turns out there’s more than one way an offshore oil rig can kill a fish. Even when they’re not spewing oil into the ocean, oil rigs kill vast numbers of fish and other aquatic organisms in their daily operations by sucking them up into their cooling water intake systems, where they get squashed against screens and otherwise beat up by the mechanism.   Power plants do it too, as does any industrial facility that circulates water for cooling. Congress recognized this problem ...

Tailoring Rule Draws Multiple Challenges

by Victor Flatt | August 04, 2010
Cross-posted from Flatt Out Environmental. As expected, the EPA's "tailoring rule," under which it proposes to regulate stationary sources of greenhouse gases under the Clean Air Act (CAA) only if they produce over 75,000 tons of carbon dioxide equivalent forcing per year, has been challenged in court by numerous organizations. These include industry, several states (the usual suspects including Texas), and more surprisingly several environmental organizations. The crux of industry and state challenges to the tailoring rule is that it ...

CPR's Shapiro Testifies in Congress on 'Agency Capture' by Industry

by Ben Somberg | August 03, 2010
The Minerals Managements Service's coziness with an industry it was supposed to be monitoring has brought attention back to an all-too-pervasive problem: regulatory agencies becoming "captured" by the regulated industries. This morning the Senate Judiciary Committee's Subcommittee on Administrative Oversight and the Courts is holding a hearing on “Protecting the Public Interest: Understanding the Threat of Agency Capture.” CPR Member Scholar Sidney Shapiro is testifying about the nature and extent of agency capture, and what Congress can do about it. ...

State Coal Ash Regulation at Work

by Ben Somberg | July 29, 2010
You may have read of a letter sent by 31 Representatives to the EPA today to complain about coal ash regulation. I wasn't planning on dignifying it with a response, but sometimes something just calls out for a little highlighting. Like when the members write: "States have been effectively regulating CCRs" That's actually a case they want to be on record making? Really? View of the TVA Kingston Fossil Plant fly ash spill. Photo used under Creative Commons by Brian ...

The New Consumer Protection Agency and Bureaucratic Reality

by Thomas McGarity | July 28, 2010
Now that Congress has passed legislation creating a new Consumer Financial Protection Bureau in the Treasury Department, attention has shifted to how the Obama Administration will implement the new law. The issue of who President Obama should appoint to head the new agency is now front and center. Consumer groups and many members of Congress believe that Professor Elizabeth Warren, who came up with the idea for a consumer protection agency for the financial sector and has been an aggressive ...

EPA's New Guidance on Considering Environmental Justice in Rulemaking a Welcome First Step

by Catherine O'Neill | July 27, 2010
The EPA released a guidance document on Monday that promises to integrate environmental justice considerations into the fabric of its rulemaking efforts. Titled the Interim Guidance on Considering Environmental Justice During the Development of an Action, EPA’s Guidance sets forth concrete steps meant to flag those instances in which its rules or similar actions raise environmental justice concerns. Specifically, the Guidance directs agency staff involved in rulemaking to “meaningfully engage with and consider the impacts on” communities of color, low-income communities, indigenous ...

Auto Safety Bill Takes Some Bruises in the Senate; Automakers Try for More

by Lena Pons | July 27, 2010
The Motor Vehicle Safety Act of 2010 (H.R. 5381/S. 3302), the primary legislation on the table in response to the Toyota unintended acceleration fiasco, went through the committee process in the House and Senate earlier this summer. The bills, as introduced, included some tough provisions to respond to gaps exposed by the Toyota episode. Among important reforms included in the bills currently: More public access to NHTSA’s early warning information database; standards for accelerator control and brake override; a standard ...

Using Disclosure as a Smokescreen: How Behavioral Economics Can Deflect Regulation

by Daniel Farber | July 26, 2010
Cross-posted from Legal Planet. A key figure in behavioral economics recently issued a warning about over-reliance on its findings.  In a NY Times op. ed, Dr. George Lowenstein raised questions about some uses of behavioral economics by government policymakers: As policymakers use it to devise programs, it’s becoming clear that behavioral economics is being asked to solve problems it wasn’t meant to address. Indeed, it seems in some cases that behavioral economics is being used as a political expedient, allowing ...

Climate Change: The Ball's Bounced Back to the States, EPA, and DOE

by Alice Kaswan | July 23, 2010
After endless negotiations and draft bills, the Senate has given up on climate legislation that would place any sort of cap on the nation’s emissions, and will likely settle for a few select energy initiatives. Congress’ failure to act is galling. Hand wringing is fully justified. But what now? State and local governments have become accustomed to federal paralysis, and will, I hope, continue to march on notwithstanding the tight lock that certain vested fossil fuel interests and industry have clamped on congressional action. ...

At Thirty Five, Endangered Species Treaty Has Mixed Record

by Yee Huang | July 23, 2010
July 1 marked the 35th anniversary of the effective date entry-into-force of the Convention on International Trade in Endangered Species (CITES). While CITES is among the stronger international conventions, its strength is diminished by a lack of an enforcement mechanism and political maneuverings. The arrests and cargo seizures may not make headlines often, but international trade in endangered species is one of the most valuable illegal markets, behind drugs but potentially comparable to arms and human trafficking. According to a ...

Big Chicken Loses Round One in Groundbreaking Water Pollution Case

by Shana Campbell Jones | July 22, 2010
Thanks to a strong ruling from a federal judge in Baltimore Wednesday, large poultry companies are one step closer to being held accountable for the pollution (manure) the small farms that grow chickens for them generate. Responsibility: it’s not just for the little guys anymore. In March, several environmental groups in Maryland sued Perdue Farms, Inc. and Hudson Farm, a chicken farm that raises Perdue’s chickens, alleging violations of the Clean Water Act. (I blogged earlier about the political brouhaha ...

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