The Delta: Pumps, Politics, and (Fish) Populations

by Holly Doremus | February 19, 2010

Cross-posted from Legal Planet.

The past couple of weeks have been crazier than usual on the Bay-Delta. The pumps were first ramped up and then ramped down. Senator Dianne Feinstein (D-CA) pandered to the irrigation crowd (or at least a part of it) by proposing to ease endangered species protections in the Delta. And the fall-run chinook salmon population, which supports the commercial fishery, crashed.

First, the pumps. Recall that last fall Judge Oliver Wanger ruled that the Bureau of Reclamation violated NEPA by implementing the 2008 smelt biological opinion without first undertaking environmental analysis. I think that’s incorrect as a matter of law; it can’t be a violation of NEPA to reduce pumping for conservation purposes, but not a violation to gradually ramp up pumping over the decades that the CVP and SWP have been operating. NEPA analysis should happen, but it should happen when the Bureau is developing its proposed Operating Criteria and Procedures (or when it is considering renewing irrigation contracts), not at the back end of the ESA analysis.

Be that as it may, Judge Wanger is sticking to his NEPA guns. He has now ruled that water users are likely to succeed on their parallel argument that implementing the salmon BiOp also violated NEPA. On February 5, Judge Wanger granted a TRO prohibiting implementation for two weeks of a provision of the salmon BiOp that limits the extent to which pumping ...

Tennessee Coal Ash Cleanup Update: Where On-Target Is Still Depressing News

by Ben Somberg | February 18, 2010
Just to give you an idea of the scope of the situation in Tennessee: More than 3 million cubic yards of coal ash were released into the waterways in the Kingston coal ash disaster in late 2008. This week comes news from cleanup officials that the removal of that waste is 70 percent complete. The EPA's PowerPoint shows that removal of the coal ash from the river is slightly ahead of forecast (slide 16). So, just a half million cubic ...

EPA's Cooperative Approach on Coal Ash Nets "Action Plans" From Industry -- But Here's What EPA Could Really be Doing With Existing Authority

by James Goodwin | February 17, 2010
In 2008 alone, coal-fired power plants produced some 136 million tons of coal ash waste – dangerous stuff, because it contains arsenic, cadmium, mercury, and a host of other toxins that are a significant threat to basic human health. Ironically, coal ash has been growing as a problem in recent years in part because better pollution-control devices capture more toxic contaminants before they go up power plant smokestacks. Last year, around 55 percent of the stuff was piled up in ...

In OIRA Meeting on BPA, 13 of 19 Studies Presented Funded by Industry

by Ben Somberg | February 15, 2010
The Milwaukee Journal-Sentinel had its latest article on BPA this weekend, this time looking at the role of the December 22 meeting between the industry and OIRA. Writer Meg Kissinger contrasts the forceful EPA statements on BPA from last year with the lack of an EPA action plan on the chemical now. As for the documents presented to OIRA at the meeting, The Journal Sentinel reviewed the list and found 13 of the 19 papers and presentations cited were paid ...

Eye on OIRA: The 121st Day and Coal Ash Still Going to Pits in the Ground

by Rena Steinzor | February 12, 2010
Tomorrow will be the 120th day since the White House Office of Information and Regulatory Affairs (OIRA) began its review of the Environmental Protection Agency’s (EPA) star-crossed proposal to declare coal ash that is not safely recycled to be a hazardous waste. The number is significant because it marks the end of OIRA’s allotted review period for the proposal, under the Executive Order that governs OIRA. The date will likely come and go without fanfare. By rights, OIRA ought to ...

Tackling the Issue of "Fraud" in Carbon Trading

by Victor Flatt | February 12, 2010
The concept of cap and trade took another hit recently with disclosures that hackers had been able to get into the accounts of several holders of carbon emissions allowances in Europe and steal some of the account balance. This, along with the continued snowstorm in Washington, D.C. seems to fill those opposing a federal comprehensive cap and trade plan with glee. While the issue of record setting snows in D.C. should be addressed with basic scientific education (trends and averages ...

EPA Chides Polluters for Downplaying Risk From Portland Harbor Superfund Site; Still, Must Honor Fishing Tribes' Rights

by Catherine O'Neill | February 11, 2010
In a welcome move, EPA recently took polluters to task for their attempt to downplay the risks to human health and the environment from the Portland Harbor superfund site along the Willamette River in Portland, Oregon (h/t Oregonian for noting the EPA action). As part of the cleanup effort for the site, the polluters, known as the Lower Willamette Group (LWG), had agreed to conduct an assessment of the risks posed by the contaminants there. This risk assessment will serve ...

Eye on OIRA: Coal Ash Visits by Regulation Foes Up to 28; OIRA’s Open Door Policy Creates Double Standard for Special Interests, Flouting Obama Ethics Initiatives

by Rena Steinzor | February 10, 2010
According to recent statements from the Office of Information and Regulatory Affairs (OIRA) press office, Administrator Cass Sunstein and staff are adamantly committed to granting an audience with OIRA senior staff to anyone who asks to see them about anything, and most especially pending health and safety rules. So not only are special interests granted second, third, fourth, and fifth audiences with OIRA staff after far more qualified political appointees and technical experts at agencies like the Environmental Protection Agency ...

New CPR Report Examines Regulatory Dysfunction at OSHA

by Ben Somberg | February 09, 2010
CPR today releases the white paper Workers at Risk: Regulatory Dysfunction at OSHA (press release). The report examines an Occupational Safety and Health Administration where Today its enforcement staff is stretched thin and the rulemaking staff struggle to produce health and safety standards that can withstand industry legal challenges. In short, OSHA is a picture of regulatory dysfunction. The new leadership of the agency has ... inherited a resource-starved agency operating under a statute that has been enfeebled by 30 ...

The Toyota Debacle and NHTSA's Role: What Congress Must Investigate

by Ben Somberg | February 09, 2010
In a letter today, CPR President Rena Steinzor and board member Sidney Shapiro recommend to Congress questions it should investigate to get to the bottom of the Toyota accelerator/recall matter that's all over the news. The letter focuses in particular on the role of the National Highway Traffic Safety Administration (NHTSA), and examines the agency's shortcomings in achieving its mission to protect public safety. To be clear, the Toyota case is about much more than engineering failure. It is a ...

Good News for the Pika . . . Or Not

by Holly Doremus | February 08, 2010
Cross-posted from Legal Planet. The US Fish and Wildlife Service has completed its review of the status of the cute little American pika. The verdict is good news for the pika, at least as far as it goes and if FWS is right about the science. FWS has decided that the pika is not endangered or threatened because, according to FWS biologists, the pika is not as vulnerable to the impacts of climate change as has been believed. Unfortunately, the ...

EPA's Lax Confidential Business Information Policy and the Importance of the Hampshire Associates Study

by Wendy Wagner | February 08, 2010
After laying dormant for decades, industries’ abuse of EPA’s permissive confidential business information program (CBI) is finally getting some serious attention. An investigation in the Milwaukee Journal Sentinel, and more recently articles in the Washington Post and Risk Policy Report; a report by the Environmental Working Group; and posts by Richard Denison at EDF, are turning the tide. Those of us at CPR who have spilled ink on various CBI problems over the years (i.e., Mary Lyndon, Tom McGarity, Sid ...

The State of the Cost-Benefit State: What We Can Expect from Sunstein, 'Nudge,' and OMB on Regulatory Impact Analysis

by Douglas Kysar | February 05, 2010
This week the White House Office of Management and Budget (OMB) released its annual report to Congress on the costs and benefits of federal regulatory programs. For the policy wonks among us, the most intriguing part was a section on recommendations for reform of the OMB regulatory review process. Here we find hints of what might result from President Obama’s long-awaited overhaul of the executive order on regulatory impact analysis. Cass Sunstein – an eminent legal scholar and now head ...

Time to Make NOAA Official

by Holly Doremus | February 03, 2010
Cross-posted from Legal Planet. The National Oceanic and Atmospheric Administration has existed since 1970, but it has never had the direct imprimatur of Congress. According to Congressional Daily, Rep. Bart Gordon (D-TN), chair of the House Committee on Science and Technology has announced that an organic act for NOAA is one of his committee’s priorities for this year. NOAA authorization has been proposed many times over the past 40 years. Its time to finally get it done. Why does it ...

The Human Costs of Pander, Take 3: Parents Beware the Incredibly Shrunken Consumer Product Safety Commission

by Rena Steinzor | February 02, 2010
Eighty percent of the toys sold in the United States are manufactured abroad, the vast majority in China. Because China has no effective regulatory structure, these imports are notoriously dangerous for children. The most prominent example is toys coated with lead paint, made that way because in China, lead paint is actually cheaper than the safe variety because the Chinese have increased the mining of lead ore by 50 percent since 2001. (Let’s not even imagine what Chinese manufacturers are ...

The Human Costs of Pander, Take 2: Obama Budget Shortchanges FDA and Food Safety

by Rena Steinzor | February 01, 2010
As we feared, in an effort to save pitiably small amounts of money in the discretionary (non-military) portion of the budget, President Obama’s FY 2011 budget, announced today, shortchanges very real threats to public health. Case in point: the Food and Drug Administration’s ongoing struggle to improve the safety of the American food supply. (FDA regulates 80 percent of it; USDA regulates the 20 percent that is meat and poultry, and that is, if you’ll pardon, its own kettle of ...

Toyota Says It Has Found Fix; LAT and NYT Articles Raise More Questions

by Ben Somberg | February 01, 2010
Toyota is on the media offensive this morning, announcing that it has found the problem (sticking pedals, it says) and is fixing it. Some articles indicated NHTSA has signed off or given "clearance" for the plan, but Toyota specifically noted that while NHTSA had reviewed its plan, it has not "signed off" on it, as it doesn't have the power to do so. Two articles in particular have raised further questions. The LATimes published its investigation over the weekend, questioning ...

EPA's New NO2 Rule: A Tale of OMB Interference

by Rena Steinzor | January 29, 2010
The EPA issued a new rule recently on nitrogen dioxide (NO2) -- but not before it was weakened by OMB. The consequences for the public health are real. The possibility of OMB interference in the rule was first raised by Matt Madia of OMB Watch. He noted that EPA's draft final rule -- sent to OIRA for review on December 18 -- required all metropolitan areas with a population of 350,000 people or more to install a monitoring station for ...

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