CPR Scholar William Buzbee testifies at House Hearing on EPA's Waters of the US Rule

by Erin Kesler | May 29, 2014

Center for Progressive Reform Member Scholar and Professor of Law and Emory University School of Law William Buzbee will be testifying today at a House Committee on Small Business Administration Hearing entitled, “Will the EPA’s ‘Waters of the United States’ Rule Drown Small Businesses?”

According to Buzbee’s testimony:

The purpose and logic of the new “waters” proposed regulations, in brief:       

These proposed regulations and a massive accompanying science report referenced and summarized in the Federal Register notice are an attempt to reduce uncertainties created by three Supreme Court decisions bearing on what sorts of "waters" can be federally protected under the Clean Water Act.  The two most important recent cases are the Supreme Court’s decisions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC) and United States v. Rapanos, 547 U.S.715 (2006) (Rapanos).  Judicial and regulatory treatments of these cases and the earlier related decision in United States v. Riverside Bayview Homes, 474 U.S. 121 (1985), have resulted in an increasingly confused body of law, creating both regulatory uncertainty and occasionally bold new assertions about reduced protections for previously jurisdictional “waters of the United States.”  These cases, and resulting confusion, have increased regulatory transaction costs for everyone and reduced the protections afforded to America’s waters.  The proposed 2014 "waters" regulations are a logical and legally well justified means to bring clarity to the law and, to the extent permissible under the Supreme Court’s recent ...

The EPA Addresses Residual Risk for Hazardous Air Emissions at Refineries

by Victor Flatt | May 28, 2014
On May 14, 2014, the EPA proposed new rules to control “residual risk” from hazardous air emissions (such as from benzene) at the nation’s petroleum refineries. The Clean Air Act requires the EPA to calculate whether or not residual risk to human health exists after the agency has put Maximum Achievable Control Technology (MACT) in place to control hazardous air emissions.  Studies have long shown residual risk to the public after MACT was put in place at refineries, and this ...

Regulatory Tsunami? What Regulatory Tsunami?

by James Goodwin | May 27, 2014
Sometime last Friday—the Friday before the Memorial Day holiday weekend—the Obama Administration quietly issued the Spring 2014 Regulatory Agenda.  It’s becoming something of a tradition for the Administration to release this semiannual document on classic “take out the trash” news days in this fashion.  The Fall 2013 Regulatory Agenda was similarly released to whatever the opposite of fanfare is on the day before Thanksgiving, while the Spring 2013 Agenda came out the day before Independence Day. It’s hard to blame ...

The Real

by Rena Steinzor | May 22, 2014
The federal regulatory system is in crisis. For the past several decades, a damaging set of mandates has continued to pile up on the books—mandates that threaten to stifle critical progress and undermine the nation’s ability to compete in the world economy. Even today, out-of-touch policymakers are attempting to add still more of these mandates, without regard to their direct, indirect, and cumulative costs to society. One might say that we are facing a tsunami, a flood, or even an ...

State Energy Policy and the Commerce Clause: Spotlight on Colorado and Minnesota

by Alexandra Klass | May 22, 2014
Within the past month, two federal district courts—one in Colorado and one in Minnesota—have issued important decisions on the constitutionality of state clean energy policies. Both cases raised the same legal issue, namely, whether the state laws in question regulate extraterritorially in violation of the dormant Commerce Clause of the U.S. Constitution. But the courts reached different results in each case and, more importantly, the Minnesota and Colorado policies reviewed by each court were quite different from each other even ...

CPR Member Scholars to Congress: Judicial Review Provisions of CFTC Reauthorization Bill Need Another Look

by James Goodwin | May 20, 2014
Yesterday, CPR Member Scholars sent a letter to House Representatives about their concerns with Section 212 of H.R. 4413, the Consumer Protection and End-User Relief Act.  This provision would add a new Section 24 to the Commodity Exchange Act, establishing specific requirements for judicial review of rules adopted by the Commodity Futures Trading Commission (CFTC).  H.R. 4413 is on the short list for a floor vote in House. As the letter explains, several aspects of Section 212 “raise significant problems.”  ...

EPA’s Long-Delayed Cooling Water Rule Finally Out: Industry Wins Again; Fish (and the Rest of Us) Lose

by Amy Sinden | May 20, 2014
The EPA issued its long-awaited cooling water rule yesterday and the score appears to be:  Industry – home run; Fish – zero.   Which is to say, it’s bad news not just for the fish but also for all of us who depend on the health of our aquatic ecosystems – which is to say, everyone.   This is the rule that governs the design standards for the massive cooling water intakes at power plants and other large industrial facilities that ...

CPR's Catherine O'Neill in Seattle Times: Protect water and health by updating state’s fish-consumption rate

by Erin Kesler | May 19, 2014
Today, the Seattle Times published an op-ed by CPR scholar and University of Seattle law professor Catherine O'Neill with University of Washington professor and public health officer Frank James entitled, "Protect water and health by updating state’s fish-consumption rate." According to the piece: GOV. Jay Inslee is currently considering how much fish Washingtonians may safely consume — a question that will, in turn, determine how protective our state’s water-quality standards should be. As professionals who have worked for two decades with ...

Mint Press News: Americans Deserve Real Toxic Chemical Reform

by Erin Kesler | May 16, 2014
Center for Progressive Reform Scholar Sidney Shapiro and Asbestos Disease Awareness Association President Linda Reinstein published a piece in Mint Press News on toxic chemical reform legislation. They note: Imagine a chemical that every public health organization in the United States and around the world knows to cause cancer and a host of other illnesses. You might think that such a chemical would probably be banned from commercial use in the United States, or at least not allowed to be used in ...

Supreme Court’s Revival of the Transport Rule Means a Cleaner Chesapeake Bay

by Anne Havemann | May 08, 2014
Air pollution is a complex problem. For one, it does not adhere to state boundaries; a smokestack in one state can contribute to pollution problems in another, even a downwind state hundreds of miles away. What’s more, air pollution’s impacts are not confined to just the air. What goes up must come down, and air pollutants are eventually deposited on the ground where they are washed into rivers, lakes, and streams.  The Environmental Protection Agency (EPA) has tried for decades to ...

New NAS report breathes life into EPA’s IRIS program

by Matt Shudtz | May 08, 2014
The National Academies’ National Research Council released its long-awaited report on IRIS this week, and the results are good for EPA.  The report praises the IRIS program and its leadership, including Drs. Olden and Cogliano, for making great strides to improve how IRIS assessments are developed. To get a real appreciation for how positive this report is, it’s important to put it in context.  In 2011, a different NAS/NRC committee led by the same chairperson went out of its way ...

Dynamic modeling and the climate

by Frank Ackerman | May 06, 2014
Frank Ackerman is the coauthor, with Joseph Daniel, of (Mis)understanding Climate Policy: The role of economic modeling, prepared for Friends of the Earth (England, Wales & Northern Ireland) and WWF-UK. Under the Climate Change Act 2008, the UK government sets “legally binding” carbon budgets, which cap the country’s total emissions for five-year periods. The size of the fourth carbon budget, covering 2023-2027, is topic of debate. The budget was set by Government back in 2011 but Chancellor George Obsorne secured a ...

“Waters of the United States” - Myths and Facts Surrounding the New Proposed Rule from EPA and the Army Corps of Engineers

by William Andreen | May 01, 2014
On April 21, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers published a proposed rulemaking to clarify the jurisdictional reach of the protections afforded by the Clean Water Act of 1972.  The Clean Water Act is the foundation of our nation’s effort to restore and maintain the biological, chemical, and physical integrity of our water resources.  While the jurisdictional reach of the Act was well defined and well understood for nearly forty years, two Supreme Court ...

CPR Scholars Respond to Supreme Court Ruling in Favor of EPA's Cross-State Pollution Rule

by Erin Kesler | April 29, 2014
The Supreme Court today upheld, by a 6-2 vote, the EPA's cross-state air pollution rule. Below are reactions from Center for Progressive Reform scholars Thomas O. McGarity and Victor Flatt. According to McGarity: After two decade's worth of litigation, the Supreme Court has finally held that EPA may require polluters in one state to protect air quality in downwind states through a sensible combination of emissions thresholds, cost-effective pollution reduction technologies, and emissions trading.   While this is good news to ...

EPA’s Final Enforcement Strategic Plan: A Small Silver Lining in a Very Dark Cloud

by Joel Mintz | April 24, 2014
In a very thoughtful CPRBlog piece, dated April 14, 2014, Rena Steinzor presents a powerful critique of the enforcement aspects of EPA’s 2014-2018 Strategic Plan. As Professor Steinzor rightly points out, EPA’s projected cutbacks in source inspections, civil judicial enforcement, administrative enforcement actions, and other enforcement work will likely encourage air and water pollution by small and medium-sized polluters that will have harmful effects on human health and the environment. At the same time, however, when one compares the final ...

Missouri River Floodplain Owners Seeking a “Double-Take” from the Taxpayers

by Christine Klein | April 21, 2014
Landowners flooded by the Missouri River in 2011 have sued the Corps of Engineers for a Fifth Amendment “taking” under the U.S. Constitution.  Their attorneys hope to rake in over $250 million in claims for their clients and at least $1 million in expenses and fees for themselves.  They’re likely to be disappointed. Lawsuits seeking recovery of flood damages from the federal government almost always fail.  First, the United States is immune from suit for negligent construction or handling of ...

The Age of Greed: Keeping the Public in the Dark About Dangerous Products

by Rena Steinzor | April 16, 2014
It’s basic common decency:  If you know people are about to stumble into a dangerous situation without realizing the risk, you should try to warn them before harm occurs.  For example, you might warn someone that a frying pan is hot before they pick it up or that a handrail is broken before they try to descend a staircase. For too many companies, though, concerns about profit margins and quarterly earnings reports leave little room for common decency.  These days, ...

What’s Good Enough for General Motors…

by Rena Steinzor | April 15, 2014
It’s hard to find someone who is not appalled at the news that General Motors knew the ignition switches on some 2.6 million of its automobiles were defective and yet did nothing to fix the problem, instead recommending that its customers stop using keychains.  It also lied repeatedly to its regulator, the National Highway Traffic Safety Administration (NHTSA), the media, and its customers. The company’s deliberate lies saved about 90 cents per car, but the defect, apparent for many years, ...

Farm Bill 2018: Down Payment on an Effective Conservation Title

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