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 flood control structures under the sovereign immunity shield of the 1928 Flood Control Act, as plaintiffs whose lives were destroyed when levees failed during Hurricane Katrina quickly discovered.  My co-author Christine Klein and I have called for a repeal of this provision in our article and book on Unnatural Disasters, but it hasn’t happened.

In hopes of avoiding the immunity problem, the Missouri River plaintiffs have brought a claim under the Fifth Amendment, which is not barred by the Flood Control Act.  However, this claim is just as unlikely to stick, for good reason.  As we document in our previous work, courts find that floodplain management constitutes a regulatory taking in only the rarest of cases, whether the impact to private property occurs through land use restrictions on construction or through flood control structures like dams and levees.  This is because the impact is neither a “permanent physical occupation” of the property by ...

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, ...

The Victims of EPA’s Retreat from Enforcement

by Rena Steinzor | April 14, 2014
Since the year began, the Environmental Protection Agency has resolved enforcement actions against 12 different companies in the Chesapeake region for failure to comply with environmental laws.  In one case, EPA found that the U.S. Army had failed to inspect more than a dozen underground tanks at one of its Virginia military bases containing hundreds of thousands of gallons of jet fuel, diesel fuel, and gasoline.  A D.C. hospital was not properly checking for carbon monoxide leaks.  A solvent processing ...

Better Late Than Never: OIRA’s Meeting Logs Just Got a Lot More Transparent

by James Goodwin | April 09, 2014
This week the Office of Information and Regulatory Affairs (OIRA)—the obscure White House Office charged with reviewing and approving agencies’ regulations—took an important and much-appreciated step in the direction of greater transparency by updating and improving its electronic database of lobbying meetings records that the agency holds with outside groups concerning the rules undergoing review.  As detailed in a 2011 CPR report, corporate interests have long used OIRA as a court of last resort for seeking relief from regulatory requirements ...

The Hill: Natural Floods, Unnatural Disasters

by Erin Kesler | April 09, 2014
Yesterday, The Hill published an opinion piece by CPR scholars Christine Klein and Sandra Zellmer. According to the piece: President Obama recently signed a controversial bill that will directly affect the safety of millions of Americans. The fine print is so complicated, though, that it’s hard to predict exactly how our safety will be affected. Some say that the Homeowner Flood Insurance Affordability Act of 2014 brings desperately needed relief to property owners who face ruinous increases in their premiums for federal flood insurance. ...

CPR Analyst Matthew Shudtz to Testify at OSHA Silica Hearing

by Erin Kesler | April 03, 2014
Today, CPR Senior Policy Analyst Matthew Shudtz will be testifying at OSHA’s hearing on the proposed silica rule. According to Shudtz: The testimony raises some concerns about how OSHA arrived at its proposal to provide limited medical surveillance for silica-exposed workers.  It also covers issues related to enforcement and small business impacts.  But most importantly, the testimony reiterates the need to get this rule finalized quickly.  As we have noted many times in this space, millions of workers are exposed ...

CPR Member Scholars Send Letter to Senate Criticizing “Attempted Misuse” of the Congressional Review Act

by James Goodwin | April 02, 2014
Yesterday, 13 Member Scholars of the Center for Progressive Reform (CPR) sent a letter to the U.S. Senate expressing their concern about S.J. Res. 30, a Congressional Review Act (CRA) “resolution of disapproval” introduced by Senate Minority Leader Mitch McConnell (R-KY) that seeks to block the Environmental Protection Agency’s (EPA) proposed Clean Air Act New Source Performance Standard (NSPS) to limit greenhouse gas emissions from future fossil-fueled power plants. Drawing on their many years experience in administrative law, the Member Scholars ...

Timid Bay Agreement Falls Short

by Rena Steinzor | April 01, 2014
Maryland faces an important deadline in its long-running effort to clean up the Chesapeake Bay. By 2017, the state is required to implement specific measures to reduce the massive quantities of nutrient pollution that now flow into the Bay from agriculture, sewage treatment plants, power plants, factories, golf courses, and lawns. Gov. Martin O’Malley and the other Bay State governors know we’re going to have to make some demands on polluters to get the job done. But if the new ...

Greening the Idol Industry in India

by Noah M Sachs | March 26, 2014
I’ve been in Bangalore, India for about two months on a Fulbright fellowship to study Indian environmental law.  While I knew India has major problems with air pollution and sanitation, I didn’t expect that one of the major environmental controversies here would be about greening the idol industry.  Apparently, the gods in India can wreak havoc on the environment. Each year, Indians sink millions of idols in rivers and lakes to celebrate various festivals.   The biggest festival for idol sinking ...

How the Koch Brothers are Hacking Science

by Frank Ackerman | March 26, 2014
Rhode Island has recently learned that its renewable energy standards could be ruinously expensive. But they’re in good company: more than a dozen states have “learned” the same thing, from reports from the same economists at the Beacon Hill Institute (BHI). Housed at Boston’s Suffolk University, BHI turns out study after study for right-wing, anti-government groups. Funding for BHI’s relentless efforts has come from Charles and David Koch (leading tea party funders) and others on the same wavelength. For the ...

The “Best” Regulatory System Money Can Buy: Lessons from North Carolina’s “Regulatory Reform” Movement

by James Goodwin | March 19, 2014
For years, Duke Energy has enjoyed virtual free rein to contaminate North Carolina’s surface and ground waters with arsenic, lead, selenium, and all of the other toxic ingredients in its coal ash waste in clear violation of the Clean Water Act and other federal environmental laws.  And it seems that both North Carolina’s regulators and state legislators are determined to keep it that way. Last year, the state’s environmental agency actively thwarted citizens’ efforts to sue Duke for violating the ...

Conflict Disclosures for Regulatory Science: Slow but Steady Progress at Last

by Wendy Wagner | March 18, 2014
Basic disclosures of conflicts of interest have been required by the top science journals for decades. Yet most regulatory agencies – despite strong urging from a variety of bipartisan sources – have failed to require these disclosures for private research submitted to inform regulatory decisions. This omission is particularly alarming since, unlike journals, agencies used this research to determine the appropriate standards for protection of public health and welfare. If anything, one would expect the agencies to apply higher scientific standards and ...

CPR Submits Comments on the Chesapeake Bay Watershed Agreement

by Anne Havemann | March 17, 2014
Maryland faces an important deadline in its long-running effort to clean up the Chesapeake Bay.  By 2017, the state will be legally required to have put in place a number of specific measures to reduce the massive quantities of pollution that now flow into the Bay from a range of pollution sources in the state.  Unfortunately, if the terms of a draft Chesapeake Bay Watershed Agreement are any indication, we’re going to miss the deadline. Today, CPR President Rena Steinzor ...

EPA Declares BP a 'Responsible Contractor' Makes It Eligible Again for Federal Contracts in the Gulf

by Rena Steinzor | March 13, 2014
A scant five days before the Department of Interior opens a new round of bids for oil leases in the Gulf of Mexico, the EPA has blinked, pronouncing BP, the incorrigible corporate scofflaw of the new millennium, once again fit to do business with the government. To get right to the point, the federal government’s decision that BP has somehow paid its debt and should once again be eligible for federal contracts is a disgrace. Not only does it let ...

CPR Submits Comments on FDA's Proposed Generics Labeling Rule

by James Goodwin | March 10, 2014
If you’re harmed by an improperly labeled prescription drug you’ve taken, should your ability to hold the manufacturer accountable in court depend on whether that drug was “name brand” or “generic”? Strangely, it does matter, thanks to the 2011 U.S. Supreme Court decision in Pilva v. Mensing. There, the Court held that because of a quirk in the Food and Drug Administration’s (FDA) regulations, generic drug manufacturers were shielded against plaintiffs’ state tort law failure-to-warn claims that alleged that a ...

Enforcement of Environmental Laws a Victim of Obama’s Budget Proposal

by Anne Havemann | March 10, 2014
EPA’s budget is in free-fall.  Members of Congress brag that they have slashed it 20 percent since 2010.  President Obama’s proposed budget for 2015, released on Tuesday, continues the downward trend.  The budget proposal would provide $7.9 billion for EPA, about $300 million, or 3.7 percent, less than the $8.2 billion enacted in fiscal year 2014. To cope with these cuts, the agency plans to fundamentally change the way it enforces environmental laws.  A draft five-year plan released in November ...

The Keystone EIS’ Grudging Acknowledgment of Environmental Impact

by David Driesen | March 07, 2014
The media has reported, erroneously, that the Obama Administration’s environmental impact statement concluded that the Keystone Pipeline would have no impact on global climate disruption. The facts are a bit more complicated, and much more interesting. Basically, the final EIS concedes that Keystone would increase greenhouse gas emissions, but it uses a silent political judgment masquerading as scientific analysis to minimize its estimate of the increase’s magnitude. Accordingly, President Obama has ample grounds to reject the Keystone Pipeline application. Let ...

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