Ensuring Accountability and Public Participation in Stormwater Permitting

by Katrina Miller | March 25, 2016

As spring rains approach, the need for more stringent stormwater controls comes into sharper focus. Rain is a life-giver, of course, but in our ever more paved environment, it’s also a conveyance for water pollution. Stormwater runoff in urban areas travels across rooftops, roads, sidewalks and eventually into a municipal storm sewer system, all the while accumulating a cocktail of various pollutants that includes oil residue from roads, pesticides and excess fertilizer from lawns and farms, and more. These pollutants flow into in local streams and have a direct — and sometimes severe — impact on the water quality and local aquatic ecosystems.

Regulation of Municipal Separate Storm Sewer Systems (MS4s) is critical to improving water quality as envisioned by the Clean Water Act (CWA). Unfortunately, management of stormwater is not a “one size fits all” problem. Controlling runoff of sewage and trash, which are major pollutants in Baltimore City, requires fundamentally different controls than addressing runoff of nitrogen and phosphorous, the major sources of stormwater pollution on the Eastern Shore of Maryland. In addition, the extent of development, and the resulting differences in how much area is covered with pavement and other impervious surfaces, affect how localities can effectively mitigate pollution from stormwater runoff.

In 1999, EPA expanded its original MS4 regulations (“Phase I”) to extend beyond large counties and municipalities to apply to smaller jurisdictions — “Phase II” jurisdictions in EPA parlance. By using best management practices that ...

OSHA's New Silica Rule: CPR's Matt Shudtz Reacts

by Matt Shudtz | March 24, 2016
Decades in the making, OSHA’s new silica rule will better protect millions of workers from a highly toxic, cancer-causing substance that has killed thousands while the rule slowly worked its way through the regulatory gauntlet, administration after administration. Today, in quarries, foundries, building sites, and kitchen rehab jobs across the country, workers can look forward to breathing cleaner air. But today’s announcement is far from the end of the story. Next comes the inevitable litigation. Following their tired playbook, special ...

When On-the-Job Deaths & Injuries Warrant Prosecution

by Matthew Freeman | March 24, 2016
NEWS RELEASE: New Manual Helps Workplace-Safety Activists Push for Criminal Charges in On-the-Job Tragedies Washington, DC ----- Every year, thousands of workers across the United States are killed on the job — 4,679 in 2014 alone. Thousands more are seriously injured. Many of these deaths and injuries are entirely preventable when employers put in place basic safety measures. Some even result from company policies and practices that encourage and reward behavior that creates unacceptably risky conditions. Ignoring workplace safety requirements is against the ...

Cuba Libre: The Link Between Freedom and Environmental Health

by Robert Verchick | March 23, 2016
Earlier this week in Havana’s Gran Teatro, President Obama urged Cubans in this new century to keep their eyes on the prize of “sustainable prosperity.” His remarks focused on the foundational role of political freedom, but not before underlining the importance of environmental protection too. That’s no surprise. Economic growth in Cuba will depend heavily on the natural systems that keep the island’s 11 million people fed, sheltered, and buffered from storms. Indeed, the U.S. State Department’s negotiations with Cuba ...

USDA Official Throws OSHA Under the Bus

by Matt Shudtz | March 22, 2016
Partisan efforts in Congress to roll back health and safety rules are common fodder on this blog. But last week, we saw a new twist, with a high-level Obama Administration official giving cover to a right-wing attempt to weaken protections for hundreds of thousands of workers in the poultry industry. The workers in question are at the center of the highly industrialized process of turning live chickens into shrink-wrapped skinless parts. That puts them at a critical juncture in the ...

A Sea Change in Climate Politics?

by Daniel Farber | March 21, 2016
There was a surprise question about climate change at the last Republican debate. What was surprising wasn’t the question itself. Instead, it was the source of the question: Tomás Regalado, the Republican mayor of Miami. It turns out that this wasn’t a fluke. Regalado and the Republican mayor of Miami Beach have spoken out in an op-ed about climate change: “The overwhelming scientific consensus is that the rising sea levels are caused by the planet warming, that the burning of ...

Trading, Manure, and the Free Market

by Evan Isaacson | March 18, 2016
Recently, I have been noticing a number of connections between the environmental policies or issues that I’ve been studying and modern economic doctrine. I’m not sure if the number or strength of these connections are enough to claim that we’re seeing a rise in “laissez faire environmentalism” in the Chesapeake Bay region, but the implications are interesting to consider nevertheless. Nutrient trading is the best example. There is little question that the notion of pollution trading stems directly from economic ...

State Court Deals Major Setback to Effort to Reform and Modernize Maryland Stormwater Permits

by Evan Isaacson | March 17, 2016
Maryland’s high court ruled last week in favor of the Maryland Department of the Environment (MDE) in a challenge by several advocacy groups against five municipal stormwater (“MS4”) permits issued by MDE. While reading the lengthy opinion on my computer, I felt at times like a raving sports fan yelling at the TV in frustration. My frustration was borne not of the court’s specific arguments, or even of concerns over any far-reaching legal implications of the decision. Rather, to understand ...

18th Straight OMB Annual Report in a Row Finds Total Regulatory Net Benefits

by James Goodwin | March 15, 2016
Over the weekend, the White House Office of Management and Budget (OMB) released the final draft of its annual report on the costs and benefits of federal regulation, which purports to provide a reasonably complete picture of the total impact that federal regulations have on the U.S. economy. This year’s final report finds that federal regulations generated total benefits in the range of $216 billion to $812 billion (in 2001 dollars; in 2010 dollars, the range recalculates to $261 billion ...

CPR Scholars Testify on Judicial Deference to Agency Discretion

by Matthew Freeman | March 15, 2016
Later today, not one but two CPR Member Scholars will testify today before the House Judiciary Committee’s Subcommittee on Regulatory Reform, Commercial and Antitrust Law. Emily Hammond and Richard J. Pierce both offer some perspective on the limits and scope of judicial deference to federal regulatory agencies. Pierce sketches out the long history of jurisprudence on the subject, noting that, Until late in the Nineteenth century, courts could not and did not review the vast majority of agency actions. The ...

Regulatory Capture: The Conservative Cure Is Worse Than the Disease

by Sidney Shapiro | March 14, 2016
I was recently a panelist at a Senate workshop on regulatory capture sponsored by the Administrative Conference of the United States (ACUS). In an earlier post about this event, I wrote about the potential of enhanced transparency to reduce regulatory capture, which I discussed at the workshop. Conservative commentators at the workshop argued that agencies are captured by public interest groups as well as by regulated entities. They contended that Congress should thus pass the REINs Act to reduce capture ...

Shining Light on Regulatory Capture: Four Proposals

by Sidney Shapiro | March 11, 2016
The subject of regulatory capture was back on Capital Hill last week as the result of a briefing sponsored by Administrative Conference of the United States (ACUS). In 2010, I testified concerning regulatory capture in a Senate hearing chaired by Senator Sheldon Whitehouse (D-RI), but in the midst of the broad-scale conservative assault on regulation, the issue hasn’t gotten nearly the attention it deserves. That’s unfortunate for a simple reason. As Rena Steinzor and I establish in our book, many ...

Environmental Enforcement in the Age of Trump

by Daniel Farber | March 10, 2016
Many thought that the BP Oil Spill would lead to new environmental legislation, as happened after past environmental disasters. That didn’t happen. But something else did happen: BP paid $24 billion in civil and criminal penalties. In an era where any effort at government regulation is immediately denounced as a dire threat to liberty, there was nary a peep out of Republican politicians about these massive penalties. Nor do I hear Trump, Cruz, or Rubio defending Volkswagen from penalties. The moral is ...

Breaking our Pesticide Addiction: A 12-Step Program for Ecologically-Based Pest Management

by Mary Jane Angelo | March 09, 2016
Recently I had the opportunity to spend an entire day at the University of Florida Department of Entomology — the same department where I obtained my M.S. more than 30 years ago. I gave a talk on the law and ecology of pesticides and pest management and met with graduate students and faculty. It was fascinating to hear about the innovative research being conducted related to ecologically based pest management and sustainable agriculture. The discussions that day provided concrete illustrations ...

Clean Water Act Jurisdiction and the Changing Supreme Court

by Dave Owen | March 07, 2016
Since Justice Scalia’s passing, the blogosphere has been abuzz with speculation about how the changed composition of the Court will affect environmental law. This post adds a little more to that speculation. My focus is not the Clean Power Plan litigation, which has (justifiably) gathered much of the attention, but instead the litigation over the joint EPA-Army Corps Clean Water Rule. And my prediction is a bit different from most predictions about the Clean Power Plan. Here, I predict, that ...

Roberts Denies Mercury Stay

by Daniel Farber | March 03, 2016
Chief Justice Roberts turned down a request this morning to stay EPA’s mercury rule. Until the past month, this would have been completely un-noteworthy, because such a stay would have been unprecedented. But the Court’s startling recent stay of the EPA Clean Power Plan suggested that the door might have been wide open.  Fortunately, that doesn’t seem to be true. In some ways, a stay in this case would be even more shocking than the earlier one. Only the states, not industry, were ...

CPR's Shapiro Joins ACUS Forum on Regulatory Capture Today

by James Goodwin | March 03, 2016
CPR Vice President Sid Shapiro is among the many distinguished panelists participating this monring in a forum called "Regulatory Capture in the 21st Century." The forum is hosted by the Administrative Conference of the United States (ACUS), an independent federal agency that works to provide Congress with advice on improving the administrative system. The event will feature remarks from Senators Sheldon Whitehouse (D-RI), Elizabeth Warren (D-MA), and Mike Lee (R-UT). Professor Shapiro will participate in a panel that looks at regulatory capture in ...

Senate Republicans Flip-Flop on the White House and Independent Agencies

by James Goodwin | March 02, 2016
Yesterday, the Republican members of the Senate Homeland Security and Government Affairs Committee (HSGAC)—the Senate committee with primary oversight jurisdiction over the regulatory system—published a report detailing their shock and dismay over a Wall Street Journal story alleging that the White House "may have inappropriately influenced" the Federal Communications Commission's (FCC) so-called "net neutrality" rule. In releasing the report, Committee Chairman Senator Ron Johnson (R-WI) could barely contain his contempt: "It is concerning that an independent agency like the FCC ...

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