Clean Air versus States Rights

by Daniel Farber | June 09, 2015

A sleeper decision by the D.C. Circuit upholds federal air pollution authority.

The D.C. Circuit’s decision last week in Mississippi Commission on Environmental Quality v. EPA didn’t get a lot of attention, despite having a very significant constitutional ruling.  Since the constitutional discussion doesn’t start until about page seventy, after many pages of scintillating discussion of matters like the reliability of private air pollution monitors and the meaning of the word “nearby”, I guess it shouldn’t be a surprise that the case has gone beneath the radar.  But the constitutional issue is an important one relating to funding cutoffs. The issue has been in play ever since the Supreme Court held that it was unconstitutionally coercive for Obamacare to cut off funding for Medicaid to states that refused to expand their Medicaid programs.  In this case, the cutoff is to federal highway funding if a state’s air pollution plan is invalid.  Texas argued that the Obamacare ruling was directly on point.

The D.C. Circuit forthrightly rejected that argument.  The Court was unsure that the coercion test even applied, given differences between the two funding position.  The Clean Air Act provision has less of a punitive tone because it reallocates funding to highway programs in states that have done a better job in fighting air pollution.  Also, the CAA cutoff provision has been around for a long time, and states have presumably been aware for many years that their highway funding was ...

Now Is the Time to Implement a Carbon Tax

by Richard J Pierce, Jr | June 09, 2015
Editor’s Note: This is the first of two posts on market-based approaches to reducing carbon emissions. Today’s focuses on a carbon tax; tomorrow’s on real-time pricing of electricity. There is a broad consensus among economists that we will not be able to mitigate climate change efficiently and effectively unless we place a price on carbon. Placing a price on carbon of $40 per ton or more would discourage use of carbon-based fuels. That, in turn, would reduce significantly the quantity ...

Maryland Releases Assessment of Future Financing Needs for Bay Restoration

by Evan Isaacson | June 09, 2015
The State of Maryland released a long overdue report on Monday regarding the state’s plan to finance its implementation of the Chesapeake Bay Total Maximum Daily Load (Bay TMDL) requirements.  The report was prepared by the Environmental Finance Center at the University of Maryland on behalf of the Maryland Department of the Environment, the Department of Natural Resources, and several other agencies in response to a 2014 request by the budget committees of the Maryland General Assembly. Originating from a ...

An Unconstitutional Attempt to Roll-back Public Health Protections

by Bill Funk | June 03, 2015
Senator Rounds (SD-R) has introduced a proposed concurrent resolution to establish a Joint Select Committee on Regulatory Reform to address the alleged “regulatory overreach that is so prevalent in all sectors of the U.S. economy” by, among other things, conducting a “systematic review” of all rules adopted by federal agencies, supposedly in the name of reducing government expenditure and streamlining business procedures.  Ironically, Congress, if it wishes, can spend its otherwise valuable time having a committee engage in this procedure, ...

The New Final 'Waters of the United States' Rule: Separating Rhetoric and Reality

by William Buzbee | June 03, 2015
William W. Buzbee, Professor of Law, Georgetown University Law Center, offers his comments here regarding the May 27, 2015 released final rule and accompanying materials regarding what waters are federally protected “waters of the United States.”  Professor Buzbee is also a founding member-scholar of the Center for Progressive Reform.  He has testified repeatedly before congressional committees about these issues and in 2006 served as co-counsel for an unprecedented bipartisan amicus brief of former US EPA Administrators filed with the Supreme ...

CPR's Hammond Testifies at House Energy and Commerce Hearing

by Erin Kesler | June 02, 2015
This morning CPR Scholar and George Washington University Law School professor Emily Hammond will testify at a House Energy and Commerce Subcommittee on Energy and Power entitled, "Quadrennial Energy Review." According to Professor Hammond's testimony: A critical challenge for energy policy in the United States is that it has evolved in a piecemeal fashion, focusing on specific energy resources through source-specific federal and state agencies. Creating an Interagency Task Force, as this Section does, is an important step in bridging the ...

GAO Report: Contingent Workers Not Guaranteed Safe and Healthy Workplaces

by Katie Tracy | June 01, 2015
A new report by the Government Accountability Office (GAO) concludes that contingent workers earn lower pay, receive fewer benefits, have less job security, and may be at greater risk of on-the-job injuries compared to standard employees.  While there is no official definition of “contingent workers,” according to GAO, labor experts generally agree that it includes workers with variable schedules and without job security, such as temporary workers, day laborers, and on-call workers.  Although some in the labor movement would define ...

Bay TMDL Progress Report: A Critical Moment

by Evan Isaacson | June 01, 2015
In April, the Chesapeake Bay Program – a federal-state partnership dedicated to restoring the Bay – unveiled data tracking nutrient and sediment reductions since 2009, the year when the seven Bay watershed jurisdictions committed to new multiyear “milestone” goals in preparation to comply with the impending Chesapeake Bay Total Maximum Daily Load (TMDL).  With two years remaining until the midpoint assessment for the Bay TMDL, the data show mixed results.  Before delving in to those results, it is important to ...

Regulatory Delay: Why It Took OSHA 25 Years to Promulgate a Construction Safety Rule

by Sidney Shapiro | May 28, 2015
OSHA has finally promulgated a Confined Spaces in Construction rule.  The agency waited 25 years after it had issued an Advanced Notice of Proposed Rulemaking (ANPR) to issue a rule.   Administrative law academics have been concerned for some time about the ossification of rulemaking due to a set of regulatory hurdles imposed by regulatory opponents. Proponents say these hurdles are necessary to ensure the accuracy and reasonableness of regulations, but they also deny workers and others of regulatory protection for ...

Obama Administration Crosses Off a Big Item on Its Safeguard To-Do List, But Much Remains to be Done

by James Goodwin | May 27, 2015
Unless you’re living under a rock or are a FIFA executive official being indicted for criminal conspiracy, you’ve no doubt heard by now that the Environmental Protection Agency (EPA) has at long last released its final rule establishing a clear regulatory definition that, consistent with both the previous court decisions and the best available science, delineates which water systems are covered by the Clean Water Act.  The rule was included in a recent CPR Issue Alert, highlighting 13 essential regulatory ...

CPR's Steinzor in the Houston Chronicle: With Dupont, OSHA's Tough Talk Falls Faint

by Erin Kesler | May 26, 2015
This past Sunday, the Houston Chronicle published an opinion piece by CPR Scholar and University of Maryland Carey School of Law professor Rena Steinzor entitled, "With Dupont, OSHA's Tough Talk Falls Faint." Steinzor recounts the chemical giant's negligence and reckless disregard for safety which ultimately led to the deaths of workers Gilbert and Robert Tisnado, Wade Baker and Crystle Wise. She takes OSHA to account for the small penalties the agency levied against Dupont and notes, "Despite ample evidence that gross and reckless neglect of fundamental safety ...

The Waters of the United States Rule, Congress, and

by Dave Owen | May 26, 2015
Perhaps as soon as this week, according to media reports, the Army Corps of Engineers and EPA will release a final "Waters of the United States" rule clarifying the scope of federal regulatory jurisdiction under the Clean Water Act.  Simultaneously, Congress is considering multiple bills that would block the new rule and undo portions of the Clean Water Act.  There are many reasons for the opposition, but one key argument is grounded in federalism.  According to the Wyoming Senator John ...

Corporate Crime Is Not 'Civil Disobedience'

by Thomas McGarity | May 26, 2015
Cross-posted with ACSBlog. The Wall Street Journal recently devoted nearly two pages of its Saturday Review section to an editorial by Charles Murray of the American Enterprise Institute urging American corporations to violate laws that they deem to be “pointless, stupid or tyrannical” as acts of civil disobedience.  The article, which is a capsule summary of his recently published book titled By the People: Rebuilding Liberty Without Permission,” betrays a profound misunderstanding of the concept of civil disobedience and a deplorable contempt for the laws that ...

The Corps Gets More Blame for Katrina Flooding

by Matthew Freeman | May 24, 2015
It’s been almost 10 years now since Hurricane Katrina unleashed its fury on the Gulf Coast, setting in motion a massive failure of New Orleans’s flood-control system. More than 1,800 people lost their lives when Army Corps of Engineers-designed levees around New Orleans failed, allowing water to engulf the city. What followed the levee failures was something not seen in an American city in a very long time. In addition to the huge loss of life, Americans outside the region ...

Are We Done with Sweetheart Deals for Too Big Banks?

by Rena Steinzor | May 21, 2015
In her first major criminal settlement since becoming Attorney General, Loretta Lynch has delivered, trussed and on a platter, five of the world’s biggest banks—Citigroup, JPMorgan Chase, Barclays, Royal Bank of Scotland, and UBS.  The five will actually plead guilty to specific crimes involving manipulation of foreign currency markets and will pay close to $6 billion in penalties for illegally collaborating to drive trading prices up and down. As one not-so-bright bank executive pronounced slyly in an online chat room ...

Federal Agency Inaction amid Growing Concerns about Health and Safety of Nail Salon Workers

by Katie Tracy | May 21, 2015
Whether you are a frequent visitor to your local nail salon, or just an occasional passer-by, you are likely familiar with the offending chemical stench that emanates from within.  You may have even considered whether the displeasing fumes are safe to breath, especially for the clinicians who work in the store every day.  This is exactly what New York Times reporter, Sarah Maslin Nir, explores in her recent exposé of the nail salon industry entitled, “Perfect Nails, Poisoned Workers.”  Nir ...

The Reality of U.S. Oil Transport

by Alexandra Klass | May 20, 2015
The major oil pipeline spills along the Santa Barbara coast and into the Yellowstone River in Montana this past year are only the most recent chapters in the growing list of major spills associated with oil transportation in the United States. These recent spills of 100,000 gallons and 50,000 gallons of oil, respectively, follow a nearly 1 million gallon spill of Canadian tar sands oil from an Enbridge pipeline that burst in the Kalamazoo River in Michigan in 2010, and ...

Counting Sheep: Livestock Stream Fencing Accounting as Easy as Herding Cats

by Evan Isaacson | May 18, 2015
Recently, the Chesapeake Bay Commission released a report Healthy Livestock, Healthy Streams to advocate for stream fencing, one of several dozen longstanding agricultural best management practices (BMPs) recognized by the Chesapeake Bay Program.  Promoting stream fencing is common sense: when livestock loiter near streams, they compact soil, clearing a path for runoff; when they enter the stream, they erode its bank and send sediment into the channel; and when nature calls, they deposit “nutrients” directly into the stream.  It is ...

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