Environmental Justice and Chemical Security: Why EPA Should Use the General Duty Clause to Protect Vulnerable Communities

by Nicholas Vidargas | July 05, 2012

Around the nation, a huge number of facilities produce, store, handle, and process a toxic mix of hazardous chemicals every day.  According to EPA data, 483 of those facilities put 100,000 people or more at risk of a chemical disaster.  Worse, because facility siting decisions have historically been, and continue to be, deaf to impacts on poor and minority communities, those facilities tend to be disproportionately located in communities that bear the brunt of society’s environmental ills.

In March, EPA’s National Environmental Justice Advisory Council (NEJAC) formally recommended that the agency expand its use of a little-known, and even lesser-used, part of the Clean Air Act called the General Duty Clause (GDC), which was passed in the wake of the Bhopal disaster.  The GDC states that “owners and operators of stationary sources producing, processing, handling, or storing [chemicals listed under 40 C.F.R Part 68 or any other extremely hazardous substances] have a general duty to:

  1. identify hazards which may result from [chemical] releases using appropriate hazard assessment techniques,
  2. to design and maintain a safe facility taking such steps as are necessary to prevent releases, and
  3. to minimize the consequences of accidental releases which do occur.

This is a powerful legal standard—and a rather unique one as well—requiring owners and operators of facilities to take proactive steps usually reserved for regulators.  The strength of a statute that demands avoidance rather than reaction should not be understated.  Furthermore, the GDC ...

Columbia Journalism Review Calls Out Bloomberg Story on Regulation

by Matthew Freeman | July 03, 2012
Last week, The Washington Post ran a story about regulation, headlined, "Regulators surge in numbers while overseers shrink." The story came from Bloomberg and was written by reporter Andrew Zajac. The headline captures the thrust of the piece. Zajac writes: As the U.S. government’s regulatory bureaucracy has ballooned, one agency has been left behind: the office that oversees the regulators. The number of people working in federal agencies with regulatory authority has doubled to about 292,000 under both Republican and ...

Does Any Pollutant Mean ANY Pollutant?

by Daniel Farber | July 03, 2012
Cross-posted from Legal Planet. It got less attention than it should because it was upstaged by the Supreme Court’s healthcare decision, but last week’s D.C. Circuit ruling on climate change was almost as important in its own way.  By upholding EPA’s regulations, the court validated the federal government’s main effort to control greenhouse gases.  To the extent that the case got public attention, it was because the court affirmed EPA’s finding that greenhouse gases endanger human health and welfare.  However, ...

Health Care's New Commerce Clause: Implications for Environmental Law

by David Driesen | June 29, 2012
Although the Supreme Court upheld the Affordable Care Act’s requirement that most individuals purchase health insurance (called the individual mandate) as within Congress’ power to levy taxes, it stated that Congress lacked the power to enact it under the Commerce Clause.  Under prior case law, Congress could regulate activities substantially affecting interstate commerce by any means not offending the bill of rights.  Since the Affordable Health Care Act regulates a set of activities that substantially affect interstate commerce, namely the ...

Secretary Salazar's Unfortunate Prediction

by Robert Verchick | June 28, 2012
Good news for the Arctic! “I believe there will not be an oil spill”—this according to Ken Salazar, the nation’s Secretary of Interior and, now, environmental crystal-gazer. As someone still fretting about BP’s mess in the Gulf, I want to believe; but it’s hard. So let me back up. Earlier this week, Secretary Salazar said it was “highly likely” that his agency would grant Shell Oil permits to begin drilling exploratory wells in Arctic waters north of Alaska, despite opposition ...

Safe Drinking Water Act Provides EPA Key Opportunity to Regulate BPA

by Ben Somberg | June 27, 2012
Member Scholar Noah Sachs and Policy Analyst Aimee Simpson have sent a letter to the EPA nominating the chemical Bisphenol A (BPA) to be included on the “Fourth Contaminant Candidate List” for possible regulation. They write: Pursuant to the Safe Drinking Water Act Amendments of 1996 (SDWA), the U.S. Environmental Protection Agency (EPA) must compile a list of unregulated contaminants that are known or anticipated to occur in public water systems and may require regulation under the SDWA.  EPA then ...

Summer is Here, and With it Another Missed Deadline for a Key Regulation

by Ben Somberg | June 22, 2012
The EPA has quietly missed another deadline on issuing the final revised “boiler MACT” rule. The agency had pledged for many months that the rule would be finalized in April. Then, in an April 30th “status report” filing with the DC Circuit Court of Appeals, the agency said: “EPA intends to take final action on this proposed rule in the Spring of 2012.” Wednesday was the first official day of summer. The revised version of the rule will provide less pollution ...

Trash Overboard! Why the U.S. Should Ratify the 1996 Protocol to the London Convention

by Noah M Sachs | June 21, 2012
a(broad) perspective Today’s post is the fifth in a series on a recent CPR white paper, Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties.  Each month, this series will discuss one of these ten treaties.  Previous posts are here. 1996 Protocol to the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter Adopted by the Parties to the London Convention (including the United States) and Opened for Signature ...

Meeting Low Expectations at Rio+20

by David Hunter | June 19, 2012
This is not your father’s Earth Summit.  This week’s UN Conference on Sustainable Development is meant to assess how far we’ve come from the 1992 UN Conference on Environment and Development (ambitiously named the Earth Summit).  And the 1992 Earth Summit was ambitious, featuring the largest gathering of world leaders in history as well as thousands of civil society and private sector participants whose presence heralded the emergence of a global environmental movement.  The original Earth Summit endorsed sustainable development ...

EPA's New Soot Proposal: The Good News, A Reality Check, Some Hopes, and Some Fears

by James Goodwin | June 15, 2012
Today, the EPA announced its new proposed National Ambient Air Quality Standard (NAAQS) for fine particulate matter, commonly referred to as soot.   Soot is one of the most common air pollutants that Americans encounter, and it is extremely harmful to our health and the environment, contributing to premature death, heart attacks, and chronic lung disease. Today’s proposal is a significant step forward that will bring tremendous benefits for the public if and when it is finalized. The proposal comprises two ...

EPA Chemical Assessment Advisory Committee Nominees and Conflict of Interest Concerns

by Ben Somberg | June 15, 2012
CPR President Rena Steinzor and Senior Policy Analyst Matthew Shudtz sent a letter to EPA Administrator Lisa Jackson this morning concerning the EPA’s Integrated Risk Information System (IRIS). From the letter: We are concerned that the recent establishment of the SAB Chemical Assessment Advisory Committee (CAAC) institutionalizes yet another opportunity for potentially regulated parties to disrupt the smooth development of new IRIS profiles. We are writing to encourage you to pay special attention to the nominees’ actual and perceived conflicts ...

Cost-Benefit Jumps the Shark: The Department of Justice's Economic Analysis of Prison Rape

by Lisa Heinzerling | June 14, 2012
Cross-posted from Georgetown Law Faculty Blog. Despite initial signs suggesting a different path, the Obama Administration has promoted the role of cost-benefit analysis in regulatory policy as fiercely as any administration before it. Nothing demonstrates this more clearly, I think, than the Administration’s bizarre and unfortunate decision to apply cost-benefit analysis to measures to limit rape and sexual abuse.  Last month, the Department of Justice issued a final rule on rape and sexual abuse in confinement facilities.  The rule was ...

Environmental Justice and GHG Cap-and-Trade: It's More than a Complaint

by Alice Kaswan | June 13, 2012
California environmental justice groups filed a complaint last week with the federal Environmental Protection Agency arguing that California’s greenhouse gas (GHG) cap-and-trade program violates Title VI of the federal Civil Rights Act, which prohibits state programs receiving federal funding from causing discriminatory impacts.  They allege that the cap-and-trade program will fail to benefit all communities equally, and could result in maintaining and potentially increasing GHG emissions (and associated co-pollutant emissions) in disadvantaged neighborhoods that already experience disproportionate pollution. While the ...

Conservatives Blast Obama Administration for Its Environmental Actions in 2007

by Ben Somberg | June 12, 2012
Rep. Joe Barton, speaking at a hearing last week, stuck it to President Obama’s EPA (at 39:00): In Idaho, just recently, the Obama Administration went against a family called the Sacketts on a wetlands issue. Again, Mr. Chairman, the Congress sets the rules, and the Administration enforces them. This Obama Administration, in the case of the EPA, doesn’t want to play by the rules, they want to set their own rules. At issue is the case of Mike and Chantell ...

Scientific Integrity at Risk in Fracking Policy Debate

by Martha T. McCluskey | June 08, 2012
The natural gas industry’s campaign against increased federal oversight of shale gas development has recently produced a spurt of “dirty science” minimizing the environmental risks of hydraulic fracturing, or “fracking.”  The University at Buffalo, the branch of the State University of New York where I teach, recently launched its new “Shale Resources and Society Institute” (SRSI) by issuing a report last month giving the “first quantitative data review of Pennsylvania’s regulation of hydraulic fracturing.” The report examined state environmental law ...

Antibiotics, Animals, and Agency Discretion

by Lisa Heinzerling | June 08, 2012
Cross-posted from Georgetown Law Faculty Blog. When an agency defends over three decades of inaction on an important problem by saying that acting would take too long, one hopes a judge reviewing the agency's inaction will see through the pretense.  This is exactly what happened this week, when a federal magistrate judge in New York ruled that the U.S. Food and Drug Administration had acted arbitrarily in citing time and resource constraints in declining to limit the use of antibiotics in ...

CPR Member Scholar Joel Mintz Testifying at House Hearing on EPA Enforcement

by Ben Somberg | June 06, 2012
The House Energy & Commerce Committee’s Subcommittee on Energy and Power holds a hearing today on “EPA Enforcement Priorities and Practices.” CPR Member Scholar Joel Mintz, Professor at Nova Southeastern University Law Center, will be testifying. From his testimony: .. during the eight years of the George W. Bush administration, the civil penalties assessed against environmental law violators averaged $117 million per year. In contrast, during the first three years of the Obama administration, EPA enforcement resulted in the assessment ...

New CPR Report Assesses the CAFO and Animal Agriculture Programs in Maryland, Pennsylvania

by Yee Huang | June 05, 2012
Today CPR releases Manure in the Bay: A Report on Industrial Animal Agriculture in Maryland and Pennsylvania. The paper provides a snapshot of the federal Concentrated Animal Feeding Operations (CAFO) permit program under the Clean Water Act (CWA) and how these states are implementing this program.  The report provides recommendations for strengthening these programs to curb pollution to the Chesapeake Bay and provides a brief glimpse at the broader animal agricultural and manure management programs work in these states. The ...

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