Trump Loses Another Big Court Case

by Daniel Farber | August 13, 2018

Cross-posted from LegalPlanet.

Last Thursday, the Ninth Circuit ruled that Scott Pruitt had no justification for allowing even the tiniest traces of a pesticide called chlorpyrifos (also called Lorsban and Dursban) on food. This is yet another judicial slap against lawlessness by the current administration.

Chlorpyrifos was originally invented as a nerve gas, but it turns out that it kills insects quite satisfactorily. (I remember ads for "Big Foot Lorsban" from back when I lived in downstate Illinois, many years ago. As I recall, the ad showed Lorsban stomping out insects in a farmer's field.) In the past, EPA had set a maximum level of pesticide residue on foods, which the statute allows only if there's no substantial doubt about safety at that level. But there's now a lot of evidence that even trace amounts chlorpyrifos can harm babies and children. Despite the evidence, EPA stalled for years on making a ruling; when finally forced to do so, Pruitt sided with industry and said he would allow its continued use on food crops. His explanation was that there was uncertainty about the risk and that EPA was "returning to using sound science in decision-making – rather than predetermined results." The court said no to this.

This case was the end – at least for now – of a series of back-and-forth exchanges between Pruitt and the Ninth Circuit, which had tried to get a ruling from EPA following ...

Making Sense of NOAA's Wildfire Announcement

by Dave Owen | August 10, 2018
Originally published on Environmental Law Prof Blog. Secretary of Commerce Wilbur Ross just released a statement directing NOAA to "facilitate" water use to respond to California's wildfires (the statement follows several tweets in which President Trump implied that the cause of California's wildfires was the state's ill-advised decision to let some of its rivers flow downhill to the ocean). Because I've already seen a few befuddled headlines about what this all means, I thought a short post explaining a few ...

The Hill Op-Ed: Proposed Rollbacks in Vehicle Emission Limits Pose Serious Environmental Threat

by Joel Mintz | August 09, 2018
This op-ed originally ran in The Hill. Federal laws and regulations play a crucial role determining the quality of our air, water, and natural resources. Well-researched and scientifically supported rules can bring enormous benefits to the American people, but regulatory rollbacks for little more than deregulation's sake can cause great harm. One example of the potential damage that a poorly crafted regulation may cause is the new proposal by the Environmental Protection Agency (EPA) and National Highway Traffic Safety Administration ...

Watered Down Standards at the TRUMP CAFÉ

by Daniel Farber | August 06, 2018
Cross-posted from LegalPlanet. Trump is proposing to gut CO2 standards for cars, freezing 2020 CAFE fuel-efficiency standards in place for years to come. Without the freeze, the standards would automatically ramp up. He also wants to eliminate California's ability to set its own standards, which many other states have opted to adopt. Here are seven key questions about Trump's proposed rollback and some answers. Do the car companies really want this? A: Not so much. It's not that they love being ...

Miami Herald Op-Ed: New EPA Administrator, Same Menace to the Environment

by Joel Mintz | August 02, 2018
This op-ed originally ran in the Miami Herald. The forced resignation of Scott Pruitt as administrator of the U.S. Environmental Protection Agency (EPA) brought celebration and relief in many quarters. Pruitt was a walking scandal machine who generated an endless stream of headlines about spending abuses, cozy relationships with industry lobbyists, first-class travel at government expense, and aides asked to perform personal tasks, including buying lotions and mattresses and unsuccessfully helping his wife land a Chick-fil-A franchise. Of more lasting ...

A Real, Not Faux, Transparency Proposal for Regulatory Science

by Wendy Wagner | August 01, 2018
Originally published on The Regulatory Review. Reprinted with permission. In a previous essay, we critiqued the U.S. Environmental Protection Agency’s (EPA) recently proposed transparency rule, arguing that the proposal conflicts with best scientific practices and would further erode the EPA’s ability to do its job. According to supporters, the central goal of the proposed rule is to increase the transparency of regulatory science. Unfortunately, the proposal does not begin to deliver. No matter how many times the word “transparency” is repeated ...

Wheeler's Chance for a Course Correction at EPA

by Matt Shudtz | August 01, 2018
Andrew Wheeler will be on the hot seat today when he heads to Capitol Hill for his first appearance before the Senate Environment and Public Works Committee as Acting Administrator of the EPA. Senators initially scheduled the hearing when Scott Pruitt was Administrator and his ethical problems had reached such epic proportions that his party's support was starting to erode. With Pruitt out and Wheeler in, today's hearing has the potential to be more about environmental policy than conflicts of ...

Pruitt's Super-Polluting Parting Shot

by Lisa Heinzerling | July 31, 2018
Originally published on The Regulatory Review. Reprinted with permission. In the fitting last act of his corrupt reign as the Administrator of the U.S. Environmental Protection Agency (EPA), Scott Pruitt handed a gift to companies who profit from producing cheaper trucks by dispensing with modern pollution control equipment. He arranged for political appointees at EPA to issue memoranda that together promised that EPA would not enforce an existing legal limit on production numbers for the super-polluting trucks. The memos had all ...

South Florida Sun Sentinel Op-Ed: Kavanaugh May Limit Environmental Protections If Confirmed to Supreme Court

by Joel Mintz | July 31, 2018
This op-ed originally ran in the South Florida Sun Sentinel. Recent events have underscored the vital importance of effective environmental regulation for Floridians. Blue green algae — apparently caused by releases of contaminated water from Lake Okeechobee — has blanketed significant portions of our state’s east and west coasts, causing major economic losses and posing a threat to the health of coastal residents. Pro-active regulation and enforcement of environmental laws could (and should) have prevented these abysmal consequences. In fact, lawsuits ...

American Prospect Commentary: Judge Kavanaugh’s Deregulatory Agenda

by Thomas McGarity | July 30, 2018
This commentary was originally published by The American Prospect.  Most of us take for granted the federal regulations that make our air cleaner, our drinking water purer, our food, highways, and workplaces safer, and our economic transactions less vulnerable to fraud and abuse. And few of us realize the extent to which those protections are subject to reversal by federal courts applying legal principles prescribed by the Supreme Court. If confirmed to the Supreme Court, Judge Brett Kavanaugh would be ...

EPA Releases Assessment of Chesapeake Bay Restoration Progress

by Evan Isaacson | July 27, 2018
Today, the Mid-Atlantic Regional Office of the Environmental Protection Agency officially released its assessment of Chesapeake Bay restoration progress. This marked the formal conclusion of the multi-year process known as the "midpoint assessment" for the Chesapeake's cleanup plan. 2017 represents the halfway point for the cleanup, at which time state and federal partners were supposed to have reached 60 percent of their final 2025 nutrient and sediment pollution reduction targets. Unfortunately, 2017 will go down as another in a long ...

Judge Brett Kavanaugh: Environmental Policymaker

by Joseph Tomain | July 26, 2018
This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court. When Judge Brett Kavanaugh was nominated for the open U.S. Supreme Court seat, I was interested in his energy law opinions and began reading them together with some of his environmental law decisions. They seem to be written by two different judges. Administrative law cases can be procedurally and technically complex. The role of the judiciary in those cases, however, is relatively straightforward. Congress passes ...

What Does Kavanaugh's Supreme Court Nomination Mean for Chesapeake Bay Restoration Effort?

by Evan Isaacson | July 25, 2018
This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court. President Trump's nomination of Judge Brett Kavanaugh to a lifetime seat on the Supreme Court has enormous environmental and public health implications – true of any high court nomination, but particularly true in this case because he would replace Justice Anthony Kennedy, the high court's long-time swing vote. As it stands, Kavanaugh has already had an outsized impact on the shape and direction of environmental ...

Imagining a Justice Kavanaugh: For One Endangered Frog, Might Justice Scalia Have Been a Kinder, Gentler Jurist?

by Amy Sinden | July 25, 2018
This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court. If Judge Brett Kavanaugh's Supreme Court confirmation process goes as quickly and affirmingly as his supporters hope, one of the cases he'll hear on his first day on the bench will invite him to consider an imponderable question: Whether it's possible to put a dollar value on an endangered species. Weyerhaeuser v. U.S. Fish and Wildlife Service will raise an important and long-controversial ...

The Threat to Individual Liberty in Judge Kavanaugh's CFPB Opinion

by Karen Sokol | July 24, 2018
This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court. "This is a case about executive power and individual liberty." That is how Judge Brett Kavanaugh started the opinion he wrote for a three-judge panel of the D.C. Circuit Court of Appeals holding that the structure of the Consumer Financial Protection Bureau (CFPB) was unconstitutional. That opinion is one among many that reflects Supreme Court nominee Kavanaugh's belief that administrative agencies are in a constitutionally ...

This Year's Farm Bill Has Huge Environmental Implications

by Laurie Ristino | July 23, 2018
Scott Pruitt's narcissistic reign as EPA Administrator consumed advocates' collective energies, and rightfully so. It was a drama that recently ended – not via Trump tweet, but by old-fashioned resignation. Alas, this victory's potential downside is that the new guy at EPA, Andrew Wheeler, may be more effective at dismantling environmental protections than Pruitt was because Wheeler actually understands how bureaucracy works. Then, of course, came the orchestrated events surrounding Justice Kennedy's retirement and President Trump's pick to fill the ...

Kavanaugh's Threat to Government Transparency and Accountability

by Daniel Farber | July 19, 2018
This post is part of a series on Judge Brett Kavanaugh's nomination to the U.S. Supreme Court. Presidents control crucial government agencies with authority over the environment, food and drug safety, and workplace conditions. Through various environmental, health, safety, and other laws, Congress has given these agencies broad authority to issue rules and regulations that affect the lives of every American. But current law provides safeguards against arbitrary decisions – safeguards that Judge Brett Kavanaugh would weaken or eliminate if confirmed to ...

The Hill Op-Ed: Trump's Policies Blasting at the Foundations of Conservation in Public Land Law

by Robert Glicksman | July 19, 2018
This op-ed originally ran in The Hill. Last month, two Inspectors General issued scathing reports about their departments' behavior. The Justice Department's IG got all the attention, while largely overlooked was a disturbing report from the Interior Department IG, who concluded that the agency had no reasonable rationale for halting a major study of the health risks of mountaintop removal mining. The study was already under way, and nearly half of its $1 million price tag had already been spent, but Secretary Ryan Zinke and ...

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