Ignored Facts, Distorted Law, and Today's WOTUS Injunction

by Dave Owen | August 28, 2015

Earlier today, a federal district court judge in North Dakota enjoined implementation of the new Clean Water Rule (also known as the Waters of the United States rule).  And if ever there was a judicial opinion begging for prompt reversal, this is it.  EPA and the Army Corps of Engineers put years of effort into that rule, and drew upon an extraordinary number of studies to arrive at their position.  The court pretended—among other errors—that all that effort and evidentiary support simply did not exist.

The Clean Water Rule determines the scope of federal jurisdiction under the Clean Water Act.  More specifically, it includes within federal jurisdiction any tributary of a navigable-in-fact waterway, and the definition of tributary encompasses any stream—even intermittent or ephemeral ones—so long as that stream has a bed, banks, and an ordinary high water mark.  That part of the rule, Judge Erickson has concluded, is inconsistent with the Clean Water Act and the Supreme Court’s Rapanos decision and is arbitrary and capricious (the court also held that another element of the rule was not a logical outgrowth of the proposed rule).  And that holding, in turn, is premised on all kinds of problematic reasoning. 

Ignoring the Facts

One crux of the court’s reasoning was its assertion that the rule lacked any support in the administrative record.  The court left no doubt on this point: it charged that “the agencies’ internal ...

Ten Years After Katrina: Government Can Save Lives and Money

by Sidney Shapiro | August 27, 2015
With the ten-year anniversary of Hurricane Katrina upon us, looking back on CPR’s landmark report on the disaster reveals two essential public policy insights. One is that a series of government policy failures resulted in a far worse disaster than would have occurred if government had been more pro-active.  The second is that more effective government requires addressing and resolving what are often difficult policy issues, something that requires an ongoing dialogue and attention to what experts know and do not know about ...

Hurricane Katrina and the Perversity Thesis

by Thomas McGarity | August 26, 2015
In Albert O. Hirschman’s brilliant analysis of conservative responses to progressive social programs entitled The Rhetoric of Reaction, he identifies and critiques three reactionary narratives that conservatives use to critique governmental programs -- the futility thesis; the jeopardy thesis; and the perversity thesis. The futility thesis posits that governmental attempts to cure social ills or to correct alleged market imperfections are doomed to fail because the government cannot possibly identify the problem with sufficient clarity, predict the future with sufficient ...

New Video from CPR: Scholars Reflect on Lessons Learned (and not) from Katrina, 10 Years Later

by Matt Shudtz | August 25, 2015
Recently, six CPR Member Scholars sat down for an hour-long conversation about the lessons that policymakers have—and have not—learned in the years since Hurricane Katrina blew through the Gulf Coast and stretched our flawed flood-protection infrastructure past its limits. As explained in our groundbreaking report, Unnatural Disaster: The Aftermath of Hurricane Katrina, published just weeks after the New Orleans levees broke, the catastrophic consequences of the storm were the product of decades-long failures to protect our most vulnerable neighbors. In the ...

Bay Experts Debate Effectiveness of Nutrient Management

by Evan Isaacson | August 24, 2015
As readers of this blog and watchers of the Bay restoration process understand, states are under increasing scrutiny regarding their progress, or lack thereof, implementing the Chesapeake Bay Total Maximum Daily Load (TMDL) as we approach the 2017 midpoint assessment. But behind the scenes, a federal-state partnership known as the Chesapeake Bay Program is also tasked with working on the framework for tracking implementation of the Bay TMDL. This framework consists of establishing and improving many guidelines and protocols used ...

CPR Announces Appointment of New Board Members: Alyson Flournoy, Alice Kaswan, and Alexandra Klass

by Erin Kesler | August 18, 2015
Board Pleased to Welcome New Members with Expertise in Climate Change, Environmental Justice, Conservation and Energy Infrastructure The board of directors of the Center for Progressive Reform today announced the appointment of three new board members: Alyson Flournoy, Alice Kaswan, and Alexandra Klass. Alyson Flournoy is the Senior Associate Dean for Academic Affairs and a Professor of Law at the University of Florida Levin College of Law. Professor Flournoy's scholarship focuses on environmental ethics, decision-making processes under environmental and natural ...

How Much Longer Will it take for OSHA to Protect Workers from Deadly Silica Dust?

by Katie Tracy | August 18, 2015
Thousands of U.S. workers die every year because of on-the-job exposure to unsafe levels of crystalline silica, a toxic dust common in the construction, sandblasting, and mining industries. Even at the current legal limits, inhaling the tiny toxic particles poses a significant risk to workers of silicosis—an incurable and fatal disease that attacks the lungs—and other diseases such as lung cancer, tuberculosis, chronic kidney disease, and autoimmune disorders. If you’re exposed to silica dust at work or know someone who ...

The Clean Power Plan and Environmental Justice: Part Three

by Alice Kaswan | August 17, 2015
On Thursday and Friday of last week, I blogged about environmental justice and the Clean Power Plan. My first post considered how stringent targets and the right incentives could lead to significant aggregate reductions that will indirectly lead to reductions in co-pollutants that have a disproportionate impact on of-color and low-income communities. Friday, I examined the plan’s distributional effects and its provisions requiring community engagement. Today, I’ll examine provisions intended to help overburdened communities benefit from a transition to genuinely ...

The Clean Power Plan and Environmental Justice: Part Two

by Alice Kaswan | August 14, 2015
Yesterday in this space, I discussed how stringent Clean Power Plan targets are critical to achieving significant aggregate co-pollutant reductions that will indirectly benefit many overburdened communities. Today, I turn to classic environmental justice issues: the distributional effects of the plan and its community engagement provisions. As I explained in my short essay in CPR’s policy paper, The Clean Power Plan: Issues to Watch, it is difficult for EPA to directly control the plan’s distributional effects given the realities of ...

Farm Bureau Loses Another Clean Water Case

by Evan Isaacson | August 14, 2015
This week provided another important legal decision in the fight to regulate polluted runoff from agriculture.  A California lower court on Tuesday ordered the State Water Quality Control Board to reconsider its ineffective regulations on agricultural operations in the Central Coast region.  Judge Timothy Frawley of the Sacramento Superior Court ruled in favor of the Monterey Coastkeeper, the Otter Project, and other environmental and commercial and recreational groups, as well as a resident who could no longer drink her tap ...

The Clean Power Plan and Environmental Justice: Part One

by Alice Kaswan | August 13, 2015
Though directed at greenhouse gases, the Clean Power Plan, by controlling existing fossil-fuel power plants, will have important implications for associated co-pollutants, many of which continue to be emitted at unhealthy levels notwithstanding decades of control.  The degree to which the Clean Power Plan will lead to reductions in traditional pollutants – the extent  of its “co-pollutant benefits” – is an especially important issue for communities experiencing the highest pollution levels, communities that are disproportionately of-color and low-income.  Hence, the ...

Fairness and Equity Are Also American Values

by Sidney Shapiro | August 10, 2015
The New Push to Protect American Workers from the Conditions of the Marketplace  In 1873, when Mark Twain and Charles Dudley Warner published their book, The Gilded Age, they satirized the greed, political corruption, and skewed distribution of wealth that pervaded the United States at the time. As during Twain’s time, most of the wealth generated in this country in recent decades has gone only to the very wealthiest among us. For Americans who work for a minimum wage, there ...

Criminally Negligent Construction Company Owner and Project Manager Sentenced Two Years in Prison for Fatal Trench Collapse

by Katie Tracy | August 05, 2015
Raul Zapata Mercado, a husband and father of three, was killed on January 28, 2012 when a 12-foot trench collapsed on him while he was working at a U.S. Sino Investments Inc. construction site in Milpitas, California. More than three years after the fatal collapse, in May 2015, the construction company owner, Richard Liu, and the project manager, Dan Luo, were convicted of involuntary manslaughter—in other words, even though they didn’t act maliciously to kill Mercado, they are responsible for ...

New Research Affirms That Corporate Interest Lobbying at OIRA Holds Sway

by James Goodwin | August 05, 2015
When asked by a reporter why he robbed banks, the notorious bank robber Willie Sutton is said to have responded, “Because that’s where the money is.”  For decades, the accepted conventional wisdom held that a similar dynamic motivated legions of industry lobbyists to parade through the front door at the White House Office of Information and Regulatory Affairs (OIRA).  Why—one might ask—does industry spend so much time complaining to OIRA’s political appointees and staff-level economists about rules they find inconvenient ...

How Does the Clean Power Plan Measure Up?

by Robert Verchick | August 03, 2015
  Against intense pressure from the coal industry to tie Americans to dirty fuels forever, the Obama administration has surged forward in the battle to fight climate change. The Clean Power Plan rule, released today by the EPA, promises serious cuts in greenhouse gas emissions, while giving states the flexibility and incentives they need to reduce pollution, keep the grid humming, and save consumers money. The challenge, as EPA Administrator Gina McCarthy put it, was “wicked hard.”  But polls show Americans ...

After 25 Years, Is the Americans with Disabilities Act Protecting Workers?

by Katie Tracy | August 03, 2015
July 26 marked the 25th Anniversary of the Americans with Disabilities Act (ADA), the federal civil rights legislation that protects the rights of people with disabilities to participate in and contribute to society, including the right to join the workforce. Over the past quarter-century, the law has undoubtedly improved the lives of many Americans, but challenges remain, most notably with respect to equal employment opportunities. As U.S. Labor Secretary Thomas E. Perez aptly wrote in his statement on the anniversary, “While we celebrate ...

Farm Bureau Effort to Thwart Bay Cleanup Progress Rejected by Third Circuit

by Evan Isaacson | July 31, 2015
Recently, the U.S. Court of Appeals for the Third Circuit affirmed the 2013 decision of the U.S. District Court for the Middle District of Pennsylvania that EPA did not exceed its Clean Water Act (CWA) authority in issuing the total maximum daily load (TMDL), or pollution diet, for the Chesapeake Bay.  The ruling affirmed the legality of the nation’s most ambitious TMDL and, more broadly, it also rejected the plaintiffs’ exceedingly narrow view of TMDLs. As presented in a recent ...

The Clean Power Plan: Issues to Watch

by Matthew Freeman | July 31, 2015
As soon as next week, the Obama Administration is expected to release the final version of its long-awaited Clean Power Plan, an ambitious regulatory package under the Clean Air Act’s provisions that will ultimately reduce greenhouse gas emissions from power plants, the largest single source of U.S. emissions. The latest rumor in rumor- and sun-drenched Washington is that the rule will come on Monday. It’s as certain as the sun rising in the east that the energy industry and their ...
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