The Roberts Court Gets Reckless with Administrative Law in Coeur Alaska: Problems Now, Problems Later

by Victor Flatt | June 23, 2009

Yesterday the Supreme Court ruled in Coeur Alaska, Inc. v. Southeast Alaska Conservation Council that the United States EPA and the Army Corps of Engineers could interpret the Clean Water Act to exempt water pollution sources from pollution control requirements if the pollution was accompanied by fill material.

This legal feat was accomplished because the Clean Water Act divides jurisdiction between the Corps for “fill” material and the EPA for pollutants. This division ostensibly gives each agency control of its own area of expertise, the Corps dredging and filling and the EPA pollutants that could harm human health or the environment generally. The problem comes when, as in this case, “fill” material contains significant amounts of pollution. Who then should regulate? I believe a straightforward reading of the intent of the legislation indicates that generally the Corps should only regulate fill that might contain de minimis amounts of pollution, as otherwise the “fill” exception could swallow the whole pollutant regulatory apparatus. Prior to this case, the Corps had never asserted jurisdiction over fill material whose primary purpose wasn’t fill. However, during the Bush administration, the agencies came to a written understanding that at this particular mine in Alaska, the release of fill laced with extensive pollutants into a lake would not be regulated by the EPA or be subject to strict pollution controls, and that the EPA would instead regulate the releases from that lake. The Supreme Court majority ...

Medical Device Safety: FDA Can't Do It Alone

by Matt Shudtz | June 22, 2009
While his colleagues (and former colleagues) jockey for the healthcare reform limelight, Rep. Frank Pallone is quietly busy making sure that, regardless of who pays for healthcare, the sick and injured will have safe and effective solutions to their problems. Last Thursday, Rep. Pallone held a hearing to assess FDA’s ability to properly oversee the medical device industry. The testimony outlined a troubling picture. GAO has been closely monitoring FDA’s medical device program for years. On Thursday, Marcia Crosse, the ...

The Heartland Institute's Shifting Statements

by Ben Somberg | June 19, 2009
Andrew Freedman of washingtonpost.com's Capital Weather Gang has a nifty catch: the Heartland Institute, the people cluttering up my newspaper this week with climate-change-denying ads, have officially changed tack on their lobbying policy. Back in March, the group told Freedman: "Our purpose is to bring scientists, economists, and policy experts together to address issues overlooked or ignored by the IPCC [the United Nations Intergovernmental Panel on Climate Change] .... If we really wanted to influence policy we would have held ...

The End of the Exxon Valdez Legal Saga?

by Holly Doremus | June 19, 2009
Cross posted by permission from Legal Planet. Rick earlier posted about the 20th anniversary of the Exxon Valdez oil spill. This week, the Ninth Circuit may finally have brought the litigation that followed that spill to a close. You may recall that last year the U.S. Supreme Court heard Exxon’s challenge to the punitive damages award against it, which had been set by the Ninth Circuit (after two remands to the trial court) at $2.5 billion. An equally divided Court ...

Saving the Chesapeake Bay: Time to Hold the States Accountable

by Ben Somberg | June 18, 2009
Today CPR releases Reauthorizing the Chesapeake Bay Program: Exchanging Promises for Results (press release, full report). For years, the jurisdictions within the Chesapeake Bay watershed (the states and Washington D.C.) have essentially not faced consequences for failing to meet pollution-reduction targets. It's not surprising that the Chesapeake Bay has languished. What the new CPR report recommends is almost an obvious next step: the states should face consequences for not meeting goals. The report calls on Congress to empower the EPA ...

The Waxman-Markey Bill's Federal-State Partnership

by Alice Kaswan | June 17, 2009
The Waxman-Markey bill, in its current form, continues the nation’s wise respect for the complementary roles of the federal government and the states. By establishing a national cap and a national trading program, the bill would draw all states into the essential task of reducing greenhouse gas (GHG) emissions. But, like the federal environmental laws before it, the bill simultaneously provides states with the power to achieve more stringent reductions. Although industry may resist the prospect of state control, Congress ...

What Does the CBO Report on Waxman-Markey Actually Tell Us? (Not Much).

by Daniel Farber | June 16, 2009
The Congressional Budget Office recently issued its report on the Waxman-Markey bill. The Washington Times soon trumpeted: “CBO puts hefty price tag on emissions plan: Obama's cap-and-trade system seen costing $846 billion.” This is quite misleading. Actually, the CBO report tells us virtually nothing about the economic costs of the bill or how much consumers will lose out of pocket. In fact, the way most people understand the idea of a budget deficit, it doesn’t really say much about that ...

A Frackin' Mess!

by Yee Huang | June 15, 2009
It’s a frackin’ mess out there in the world of natural gas extraction – exploding houses and water wells, dying cattle, and curious rashes.  The Subcommittee on Energy and Mineral Resources of the House Natural Resources Committee recently held a hearing to explore the risks of hydraulic fracturing, or fracing (sometimes spelled, “fracking”), which is currently exempt from regulation under the Safe Drinking Water Act.  Representatives Diana DeGette (D-CO), Maurice Hinchey (D-NY), and Jared Polis (D-CO) introduced a bill to ...

Congress Looks at Pharmaceuticals in the Water. Here's What They Should Do.

by Holly Doremus | June 12, 2009
This week, a subcommittee of the House Committee on Natural Resources held a hearing on the problem of waste pharmaceuticals ending up in the nation’s waterways. The issue sounds trivial – does Congress really need to spend its time worrying about people with a few left-over prescription pills flushing them down the toilet? The answer is yes. The cumulative volume of pharmaceuticals flowing from America’s bathrooms (and hospitals and landfills) to our rivers and lakes is significant, and even low ...

Big Trouble on Climate Change: President Obama and the Loss of Momentum

by Rena Steinzor | June 12, 2009
This past Sunday’s New York Times Magazine had a terrific piece by Matt Bai on the Obama White House and how it is “taking” Capitol Hill, one battle at a time. After extolling the team of congressional insiders Obama has assembled, and emphasizing the importance of their attentiveness to key players on the issue du jour -- health care reform -- Bai predicts that Obama will be compelled to wade up to his neck in the messy details of the ...

IRIS Update: New CPR Report and a House Science Committee Hearing

by Matt Shudtz | June 11, 2009
This afternoon, Congressman Brad Miller (D-NC), Chairman of the House Science Committee’s Subcommittee on Investigations and Oversight, will hold a hearing on recent revisions to the IRIS assessment process. IRIS (the Integrated Risk Information System) is EPA’s premier database of toxicological profiles for dangerous chemicals. The profiles are used for everything from setting cleanup standards at Superfund sites to determining liability in toxic tort suits. The problem is, IRIS only contains profiles for 548 chemicals. On average, 700 new chemicals ...

Executive Branch Agreement on Mountaintop Removal: A Positive Step, but Only a Step

by Holly Doremus | June 11, 2009
Over the past few months, the Obama Administration has sent mixed signals on mountaintop mining, the practice of blowing the tops off mountains containing coal and piling the left-over rubble in valleys and streambeds. Early on, things seemed to be going well for the environment. First, EPA objected to the issuance of two specific permits for mountaintop removal under Clean Water Act section 404, and announced that it would review hundreds of others. Then the Department of Interior asked a ...

11th Circuit Stirs the NPDES Pot

by Holly Doremus | June 10, 2009
Cross-posted by permission from Legal Planet. In a decision that shows the power of Chevron deference, Friends of the Everglades v. South Florida Water Management District, the 11th Circuit has upheld EPA’s water transfers rule, which provides that the act of moving water from one waterway to another does not require a National Pollutant Discharge Elimination System permit under the Clean Water Act. The question of whether water transfers are subject to CWA permitting has been litigated several places, but ...

The Misleading Economic Criticism of Waxman-Markey

by Daniel Farber | June 09, 2009
The first line of defense against climate regulation was that climate change didn’t exist. The next line of defense was that maybe it was real, but it wasn’t caused by humans. Now we’re up to the third line of defense: it does exist and it is caused by humans, but it’s too expensive to fix. For example, the Heritage Foundation estimates that Waxman-Markey would cost society a whopping seven trillion dollars by 2035. These estimates fail to ask a critical ...

The Trials and Tribulations of Obama's Open Government Initiative

by James Goodwin | June 08, 2009
When President Obama launched his open government initiative on his first full day on the job, few assumed that the ambitious endeavor it contemplated would be easy.  After all, lack of transparency and even active efforts to conceal information had become almost an inextricable feature of the federal government’s internal operations and decision-making—especially during the George W. Bush Administration.  A recent series of developments confirms just how challenging the effort to achieve a more open government will be; fortunately, some ...

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 ...

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). ...
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