The "Bafflement" Standard: (Re)Interpreting the Clean Water Act

by Yee Huang | June 05, 2009

Last month, the Obama Administration urged Congress to resolve the uncertainty in the protection of the nation’s waters and wetlands under the Clean Water Act (CWA).  In a letter signed by the heads of several agencies, the Administration noted the confusion, delay, and even neglect in protecting the nation’s waters in the aftermath of two Supreme Court decisions: SWANCC and Rapanos.  Reports from the EPA and the EPA Inspector General have documented the impacts – 20 million acres of wetlands and isolated waters are no longer protected (subscription required).

At issue is the reach of the Clean Water Act, passed in 1972 with the lofty mandate of restoring the integrity of the nation’s waters and eliminating pollution by 1985.  Although the latter goal is still out of sight, significant progress has been made in restoring the quality of the nation’s water.  Under separate provisions of the Act, the EPA and the ACOE have jurisdiction over “navigable waters,” defined as “waters of the United States.”  Those five words have generated tomes of commentary, leaving developers and environmentalists alike writhing in confusion.

By the late 1970’s, EPA and ACOE had interpreted the “waters of the United States” broadly, covering much of the aquatic system.  A set of Supreme Court decisions narrowed this protection, though, leaving the nation’s wetlands regulatory program in disarray.  The 2001 Supreme Court opinion in SWANCC rejected CWA jurisdiction over certain isolated, sometimes seasonal ponds that ...

FDA's Transparency Initiative: New Life in a Glass House?

by James Goodwin | June 04, 2009
In 2007, the FDA came under criticism for failing to inform the public about studies it had had for two years which indicated that users of the diabetes drug Avandia faced up to a 42% greater chance of suffering a heart attack.  More recently, it was revealed that Bush-era political appointees at the agency surreptitiously worked with chemical industry representatives to downplay evidence of the adverse health effects caused by bisphenol A (BPA), a chemical frequently used in making plastic toys and ...

FDA to Release New Decision on BPA Within "Weeks"

by Ben Somberg | June 04, 2009
On Tuesday, Representatives Henry Waxman and Bart Stupak sent a letter to FDA Commissioner Margaret Hamburg asking the agency to re-examine its assessment that bisphenol A (BPA) does not pose health risks to consumers. The FDA responded that it was already planning on doing so, and that a new decision would be released within "weeks, not months" (AP, Milwaukee Journal-Sentinel). ...

The BPA Backlash

by Ben Somberg | June 02, 2009
The Milwaukee Journal-Sentinel reported on Saturday, and the Washington Post on Sunday, about a meeting of industry groups in Washington last week to devise a plan to respond to criticisms of Bisphenol A (BPA). From the Post: Manufacturers of cans for beverages and foods and some of their biggest customers, including Coca-Cola, are trying to devise a public relations and lobbying strategy to block government bans of a controversial chemical used in the linings of metal cans and lids. The ...

Sharing the Catch

by Holly Doremus | May 28, 2009
Cross-posted by permission from Legal Planet. According to Science Insider (subscription required), NOAA Administrator Jane Lubchenco has endorsed broader use of a “catch shares” approach to allocating the available catch in commercial fisheries. The shares strategy (also referred to as “individual transferable quotas” or “limited access privileges”) gives individual participants in the fishery a permanent and transferable right to a set proportion of the total allowable catch. In theory, assigning shares should contribute in several ways to a more sustainable ...

Fish Tales from West Virginia

by Catherine O'Neill | May 26, 2009
Here's some slippery regulatory logic: West Virginia's Department of Environmental Protection says it is justified in setting less stringent levels for mercury in the state's waters than recommended by the U.S. Environmental Protection Agency. Why? Because, according to the WVDEP, a recent study shows that people in West Virginia eat less fish than the "average American" assumed by EPA. And if people consume less fish, they will be exposed to lower quantities of the toxic pollutants in those fish -- ...

Obama's Memo on Preemption -- Striking a Blow for Good Government

by Bill Funk | May 22, 2009
On Wednesday, by the stroke of a pen, President Obama reversed a major Bush administration policy, striking another blow for good government. For eight years the Bush administration sought to accomplish tort reform by stealth and indirection with several agencies proclaiming in preambles to regulations that the regulations preempted state tort law. These agencies included the National Highway Traffic Safety Administration, the Federal Railroad Administration, the Consumer Product Safety Commission, and most notably the Food and Drug Administration. The FDA's ...

FDA Political Interference with BPA Science

by Matt Shudtz | May 22, 2009
The Milwaukee Journal-Sentinel continued its impressive BPA reporting Sunday with disturbing revelations about former FDA political appointees’ utter disregard for the agency’s career scientists. Using the Freedom of Information Act, the Journal-Sentinel uncovered e-mails showing that high-level officials went to industry lobbyists for advice about new research on bisphenol A (BPA) before asking FDA career staff. In one instance, the U.S. Food and Drug Administration's deputy director sought information from the BPA industry's chief lobbyist to discredit a Japanese study ...

Mountaintop mining update

by Holly Doremus | May 20, 2009
This item is cross-posted by permission from Legal Planet. In March, I wrote here about EPA’s newfound boldness on mountaintop removal mining. Under current regulations, the Corps of Engineers issues permits for that practice under Clean Water Act section 404, but EPA has the authority to veto those permits. EPA, which was entirely passive on the matter under the Bush administration, had sent objections to the Corps on a couple of permits, and announced that “it would take a close ...

On Offsets, New Waxman-Markey Bill is a Mixed Bag

by Victor Flatt | May 19, 2009
On Friday, the House Energy and Commerce Committee released its anticipated Beta version of its comprehensive GHG and energy bill. Among other goals, the new discussion draft attempts to address concerns from moderate and conservative Democrats concerning the proposed cap and trade system and how it would work. The most notable change involves the free allocation of allowances to certain economic sectors to assist in the transition to the new system, and this is the part that seems to most ...

COP-4: Beyond the Dirty Dozen

by Matt Shudtz | May 18, 2009
On May 9, at the conclusion of the Fourth Conference of the Parties (COP-4) to the Stockholm Convention, negotiators from around the world agreed to add nine chemicals to the list of persistent organic pollutants (POPs) that are too dangerous for international trade. It was an important step toward protecting the world community from toxic exposures, but it unfortunately highlights our country's inability to take a leading role in international environmental law. How it works In 2001, representatives of nations ...

O'Neill Testifies on Mercury From Chlor-Alkali Plants

by Ben Somberg | May 15, 2009
On Tuesday, CPR Member Scholar Catherine O'Neill testified about mercury pollution from chlor-alkali plants at a hearing of the House Energy and Commerce Committee's Subcommittee on Commerce, Trade, and Consumer Protection. At least one in ten women of childbearing age in the United States has blood levels of mercury that threaten the neurological health of her newborn babies. Chlor-alkali plants are a major source of mercury pollution (which we are exposed to primarily through eating fish), even though only four ...

CPR Submits Comments to White House on Science Integrity Initiative

by Ben Somberg | May 14, 2009
CPR President Rena Steinzor and Policy Analyst Matt Shudtz submitted formal comments this week to the White House Office of Science and Technology Policy (OSTP) with policy recommendations for separating science from politics. Back on March 9, President Obama issued a memorandum on scientific integrity, which outlined broad principles on the subject and requested that John Holdren, the director of OSTP, draw up a series of specific policy recommendations. CPR Member Scholars wrote a letter to Holdren with initial recommendations, ...

Cass Sunstein Hits the Senate and Climate Change Hits the Media Fan

by Rena Steinzor | May 13, 2009
Cass Sunstein had his confirmation hearing Tuesday; it was well-attended and anti-climactic. President Obama’s nominee to head the Office of Management and Budget’s (OMB) Office of Information and Regulatory Affairs (OIRA) testified for about an hour, and Senate approval of the nomination seems assured. Ironically, in a perfect example of timing being everything, at about the same hour that Sunstein took his seat in front of the Senate Committee on Homeland Security and Government Affairs, a story hit the media ...

Sunstein at the Helm

by Rena Steinzor | May 13, 2009
With his attractive family and a phalanx of top aides in tow, Professor Cass Sunstein had a cordial, 45-minute hearing before the Senate Homeland Security and Government Affairs Committee yesterday. He was introduced by former student and current Senator Amy Klobuchar (D-MN) who praised Sunstein as a teacher, mentor, and eclectic thinker, all qualities for which he is rightly known. Ironically, however, the remainder of the hearing could be summarized as efforts by the three Senators in attendance— Chairman Joseph ...

Obama's Executive Order on the Chesapeake - a First

by Shana Campbell Jones | May 13, 2009
Yesterday, as the Executive Council for the Chesapeake Bay Program held its annual meeting, President Obama issued an Executive Order on Chesapeake Bay Protection and Restoration (a first), declaring the Chesapeake Bay a national treasure and signaling that EPA will play a strong role in leading Bay cleanup. For years, federal leadership on the Bay has been missing in action. President Obama's move is dramatic, and we dare to hope that this could be a turning point. Among other things, ...

Catherine O'Neill and Amy Sinden pen op-ed in Philadelphia Inquirer on Sunstein Nomination

by Ben Somberg | May 12, 2009
With Cass Sunstein's confirmation hearing for "regulatory czar" set for today, CPR Member Scholars Catherine O'Neill and Amy Sinden have an op-ed on the subject in this morning's Philadelphia Inquirer -- "The cost-benefit dodge." They write:  Beginning in the Reagan administration, any regulation with a significant impact has had to pass through Information and Regulatory Affairs' doors for approval. The office's role, frankly, has been to water down health, safety, and environmental regulations - if not drown them entirely. ... ...

Where Does Manure in the Chesapeake Come From Anyway? EPA, It's Time to Find Out

by Shana Campbell Jones | May 11, 2009
Cattle, chickens, and hogs create more than 500 million tons of manure in the United States annually – three times more than the sanitary waste produced by people. Yet, in contrast to a concerted federal and state effort to fund and build sewage treatment plants since the Clean Water Act was enacted in 1972, dealing with the water pollution problems caused by animal waste has been like wrestling a greased pig – a stinky, frustrating mess. Regulating agricultural waste in ...

A Final 2017 Dose of Op-Eds

Freeman | Dec 28, 2017 | Regulatory Policy

The Off-Switch Is Inside the Fenceline

Farber | Dec 27, 2017 | Energy

Steinzor: Trump's reform won't stop mass incarceration

Freeman | Dec 21, 2017 | Good Government

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