Government Files Petition for Certiorari in FERC Demand Response Case

by Joel Eisen | January 16, 2015

As expected, yesterday the Solicitor General filed a petition for certiorari to the Supreme Court in FERC v. Electric Power Supply Association, asking the Supreme Court to review a May 23, 2014 decision from a divided panel of the D.C. Circuit that invalidated FERC’s Order 745.

Order 745 directs Regional Transmission Organizations (RTOs) and Independent System Operators (ISOs) to establish rules that compensate demand response resources at the wholesale market price—the same rate that electric power suppliers receive for selling electricity.  A group of organizations affiliated with generators of electricity sued FERC, alleging that Order 745 had overstepped the agency’s authority.  A majority of the D.C. Circuit panel (Brown, Silberman) agreed, holding that Order 745 exceeds FERC’s jurisdiction over wholesale electricity markets under the Federal Power Act, 16 U.S.C. § 824.  The panel majority reasoned that, because demand response involves decisions by end users regarding their energy use, it is inherently “part of the retail market.”  Judge Edwards dissented.

The government’s petition disagrees, arguing that demand response is not categorically part of the retail market because Order 745 regulates transactions in the same markets in which wholesale electricity transactions occur. As the petition explains, demand response providers participate directly in the wholesale markets.  Order 745 “regulates the price that wholesale purchasers of power pay—through the wholesale rate established in auction markets run by wholesale market operators—for a reduction in consumption by demand-response providers.” Noting this, the government’s cert petition ...

Keystone XL Pipeline Route through Nebraska Upheld on Constitutional Technicality – for Now

by Sandra Zellmer | January 15, 2015
In almost any other appellate court, winning over a simple majority of the justices means that you win the case.  Not so in Nebraska.  Last Friday, in Thompson v. Heineman, a majority of the Nebraska Supreme Court found the Keystone XL Pipeline routing law, LB 1161, which granted the Governor the power to approve Keystone’s route through the state, unconstitutional.  The catch?  Nebraska’s rarely invoked Const. Art. V, § 2, or “supermajority clause.”  Under this clause, “no legislative act shall ...

GAO Debunks Republicans' 'Sue and Settle' Myth

by James Goodwin | January 14, 2015
Today, Rep. Fred Upton and the rest of his anti-environmental allies on the House Energy and Commerce Committee are probably suffering from a stingingbout of buyers' remorse as the Government Accountability Office report they requested didn't deliver the answer they were seeking.   The Commerce Committee hoped to demonstrate that “In many instances, EPA has entered into settlements or consent decrees committing the agency to undertake significant new rule-makings subject to specific timelines or schedules, including rule-makings that may result in substantial new compliance costs.” ...

Irresponsible Reform: The House Favors Extreme Legislation That Would Delay Public Protections by Ten Years or More

by Sidney Shapiro | January 13, 2015
Today, the House of Representatives voted to pass the Regulatory Accountability Act of 2015, which would amend the Administrative Procedure Act (APA) to add over 74 new procedural requirements to the rule-making process, including more than 29 new “documentation” requirements.  The goal of administrative procedure is to ensure that the government’s adoption of regulation is accountable and fair, but not at the expense of hamstringing the ability of agencies to fulfill the public interest.  The House obviously has no such concern.  ...

Corporate Violence as Crime

by Rena Steinzor | January 09, 2015
A year ago, about 300,000 people in and around Charleston, West Virginia, lost their drinking water source when thousands of gallons of a toxic chemical known as MCHM (4-methylcyclohexanemethanol) leaked into the nearby Elk River through a hole in a rusted-out storage tank. Last month, the wheels of justice began to catch up with the owners of the responsible company when they were indicted by U.S. Attorney Booth Goodwin.  Coincidentally, the West Virginia indictments came down on the same day ...

Modernization? The Regulatory Accountability Act of 2015 Adds 74 New Steps to the Rule-Making Process

by Erin Kesler | January 09, 2015
This week, House Republicans re-introduced the “Regulatory Accountability Act of 2015,” (H.R. 185). Proponents of the bill are claiming that it would “modernize” the rule-making process and streamline government inefficiencies. In fact, the RAA would bog down attempts by federal agencies to protect our health, safety and environment in red tape by adding over 74 new requirements to the rule-making process, including over 29 new “documentation” requirements.  Center for Progressive Reform Senior Analyst James Goodwin compiled a list of all the potential ...

Obama’s Path to Progress: Preventing Train Derailments

by Matt Shudtz | December 23, 2014
We are closing out the “Path to Progress” series for this year with a potential bright spot. In its Fall 2014 Regulatory Agenda, the Obama Administration set a target date of March 2015 for finalizing new rules designed to prevent and minimize the consequences of derailments in trains carrying crude oil and other highly hazardous materials. If the Department of Transportation is able to accomplish that feat, it would beat even our own proposed schedule—a welcome achievement. We are looking ...

CPR President Rena Steinzor Reacts to Final Coal Ash Rule

by Erin Kesler | December 19, 2014
Today, the EPA announced national standards governing coal waste from coal-fired power plants, also known as coal ash. The rule does not treat coal ash as a hazardous material, but as household garbage. CPR President and University of Maryland law professor Rena Steinzor reacted to the classification: It's bitterly disappointing that the electric utility industry, which earns profits hand over fist, has succeeded in bamboozling the White House to gut this rule.  Originally designed by EPA to prevent fatalities, injuries, and grave long-term damage to the public's health, ...

Electronic Reporting Requirements: A No-Brainer

by Anne Havemann | December 18, 2014
The main tool available to the Environmental Protection Agency (EPA) to limit the amount of pollution discharged into the nation’s waterways is a system of permits issued to polluters that restricts how much they may discharge. This permitting scheme, the National Pollutant Discharge Elimination System (NPDES), requires permittees to monitor their operations and report back to the EPA or an approved state environmental agency. On those data rest EPA’s ability to enforce the terms of the permits, and thus control pollution ...

OSHA Urged to Pick up Its Pen for Poultry Workers

by Matt Shudtz | December 17, 2014
Today, Nebraska Appleseed, the Southern Poverty Law Center, and several allied organizations sent a letter to OSHA requesting a response to their petition for a rulemaking on work speed in poultry and meatpacking plants. The groups originally submitted the petition to OSHA over a year ago, and it’s been radio silence ever since. Meanwhile, tens of thousands of workers, most low-income and socially vulnerable, continue to work in conditions that lead to crippling musculoskeletal disorders. The workers’ advocates who submitted ...

Steinzor Reacts to Indictments in West Virginia Chemical Spill Case

by Rena Steinzor | December 17, 2014
CPR President Rena Steinzor issued the following statement in response to today's announcement that a grand jury had indicted owners and managers of Freedom Industries in connection with the massive leak of 4-methylcyclohexanemethanol (MHCM) that fouled the Elk River and triggered a drinking water ban for 300,000 residents earlier this year: Booth Goodwin continues to distinguish himself as a tough prosecutor who is willing to use the law to punish and deter those who threaten public health.  Because this harsh ...

Why Not Jail?

by Matt Shudtz | December 16, 2014
When 29 miners died at Upper Big Branch or 11 workers died on the Deepwater Horizon, when 64 people died from tainted steroids, or when hundreds got Salmonella poisoning from peanut butter, did you ask yourself, 'Why not send the people responsible to jail?' You're not the only one. In her new book, Why Not Jail: Industrial Catastrophes, Corporate Malfeasance, and Government Inaction, CPR President Rena Steinzor asks the same question and concludes: The criminal justice system is as important ...

Obama’s Path to Progress: Will the White House Compel Rich Utilities to Clean Up Giant Coal Ash Pits?

by Rena Steinzor | December 15, 2014
We’ll soon learn the results of White House deliberations over EPA’s long-delayed coal ash rule, one of the Essential 13 regulatory initiatives we’ve called upon President Barack Obama to complete before he leaves office.  Under the terms of a consent decree, EPA is required to issue its new rule by Friday, December 19. As glad as we are to see this phase of the rule’s tortuous odyssey come to a close, we suspect that court, not a victory party, will ...

Maryland’s Phosphorus-Laden Farms: One More Reason for the EPA to Get Back to Work on a Comprehensive CAFO Rule

by Anne Havemann | December 12, 2014
[Under an] Obama Administration, the Environmental Protection Agency will strictly monitor and regulate pollution from large [industrial animal farms], with fines for those who violate tough air and water quality standards. —Sen. Barack Obama, 2008 The animal farms to which then-candidate Obama was referring are known as Concentrated Animal Feeding Operations (CAFOs), and they house tens, if not hundreds, of thousands of chickens per flock. The ballooning popularity of these factory farms—at least with industry—means they now raise more than ...

Media Advisory: CPR and the University of Maryland Carey School of Law to Co-Host a Luncheon with Maryland Attorney General-Elect Brian Frosh on Environmental Enforcement

by Erin Kesler | December 10, 2014
Contact: Erin Kesler                                     Email: ekesler@progressivereform.org Telephone: (202) 747-0698 X4 What: CPR and the University of Maryland Francis King Carey School of Law will host a luncheon and Q&A session with MD Attorney General-elect Brian Frosh on the state of environmental enforcement in the Chesapeake Bay. Mr. Frosh will speak to a group of Bay advocates, University of Maryland faculty, attorneys at firms that represent Maryland businesses, ...

CPR's Steinzor Reacts to Maryland Governor-Elect Larry Hogan's Vow to Fight the PMT

by Erin Kesler | December 08, 2014
At the Maryland Farm Bureau's Annual Convention today, Maryland Governor-Elect Larry Hogan vowed to fight against the state's proposed phosphorus management tool (PMT) regulations. CPR President and University of Maryland law professor Rena Steinzor reacted to Hogan's comments, "It’s truly a shame that Governor-elect Hogan is indicating so early that he is willing to jeopardize the restoration of the Chesapeake Bay by rejecting pollution controls out of hand rather than working with scientists to improve them.  As the Governor-elect will soon discover, ...

New Map Plots Farmer-Reported Data to Show “Excessive” Soil Phosphorus Levels at All But One of 60 Large Poultry Farms in Six Eastern Shore Counties Due to Manure Usage

by Anne Havemann | December 08, 2014
Without Better Phosphorus Management on Farms, Maryland Will Not Meet its Responsibility Under the Chesapeake Bay Pollution Diet A new interactive map from the Center for Progressive Reform (CPR) and the Chesapeake Commons demonstrates that all but one industrial-scale chicken farm on Maryland’s Eastern Shore reported having at least one field saturated with “excessive” soil phosphorus from the spreading of manure. The data on the 60 concentrated animal feeding operations (CAFOs) in six counties was obtained from public planning documents from the ...

Victor Flatt in the Houston Chronicle: Pollution trading could allow more efficient water cleanup

by Erin Kesler | December 08, 2014
Recent stories about "dead zones" in the Gulf of Mexico and the Chesapeake Bay are a reminder that despite progress on some water pollution fronts, we still have a serious problem to address. One politically popular approach to addressing the problem is a market-based solution, in which hard-to-regulate "non-point" pollution sources (farming, run-off, other sources without a "pollution pipe") and point sources engage in pollution-credit trades. So, for example, an industrial polluter might pay farmers to control run-off of fertilizer, ...

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