After Sackett: What Next for Administrative Compliance Orders?

by Joel Mintz | March 24, 2012

Earlier this week, the U.S. Supreme Court handed down its much-anticipated decision in Sackett v. Environmental Protection Agency. In a unanimous decision--key features of which are summarized in a thoughtful post by Nina Mendelson--the Court held that the plaintiff landowner had a right to challenge the Clean Water Act administrative compliance order (ACO) which EPA had issued to it under the Administrative Procedure Act. The Court's opinion is narrowly drawn--in some ways, perhaps, an immediate benefit to EPA and other agencies who regularly issue administrative orders to enforce environmental statutes. At the same time, however, the Sackett decision raises troubling questions regarding the future direction of the law in this area, along with potentially vexing practical difficulties for EPA's enforcement program.

The case certainly could have come out worse. The Supreme Court's opinion avoided all of the plaintiff's constitutional claims, and it contained no discussion of the applicability of its holding to the ACO provisions of other environmental statutes. The decision was remarkably free of rhetorical excess. Moreover, as Justice Ginsberg pointed out in her concurrence, the Court's opinion did not reach the question of whether pre-enforcement judicial review is available to parties who challenge the terms and conditions of ACOs issued under the Clean Water Act. Thus, it is possible that the Sackett decision will be narrowly viewed, in the lower courts, as applying only to challenges to the EPA's jurisdictional authority under the Act--and perhaps only to ...

SCOTUS Decision in Sackett v. EPA Weakens Government's Ability to Respond to Urgent Threats to Water Quality

by Nina Mendelson | March 21, 2012
In the Sackett v. EPA decision today, the Supreme Court rejected a broad argument that the Sacketts' constitutional due process rights had been violated when they could not go to court immediately to challenge an EPA order requiring them to remove fill and replant vegetation on their property. But the Court did hold that under the relevant statutes – the Clean Water Act and a broader statute authorizing judicial review of agency action, the Administrative Procedure Act – the Sacketts were ...

Obama Administration's Latest Sop to the Anti-Regulatory Crowd: Buying the Cumulative Burden Pitch

by Rena Steinzor | March 20, 2012
This post was written by CPR President Rena Steinzor and CPR Policy Analyst James Goodwin. Earlier today, OIRA Administrator Cass Sunstein released a new memorandum to agencies directing them to consider and account for the “cumulative” costs of their regulations.  Attacking the cumulative costs of regulation has been a favored tactic among regulated industries and their allies in Congress (it's a feature in many anti-regulatory bills, such as the Regulatory Accountability Act).  Rather than responding forcefully to the faulty cumulative ...

Limiting the Rights of Medical Malpractice Victims: House GOP Leaders Make a Bad Idea Worse

by Sidney Shapiro | March 20, 2012
House GOP leaders may vote as early as this week on legislation that would eliminate the Independent Payment Advisory Board (IPAB), a cost-saving measure that was established as part of the national health care reform Congress passed in 2010.  House leaders have also attached national restrictions on the right of patients to recover damages for medical malpractice (H.R. 5) to the IPAB bill, with the joint bill being called H.R. 5.  The sponsors of the bills allege that the savings ...

The Regulatory Freeze Bill: Cynical Political Posturing That Would Harm the Economy

by Sidney Shapiro | March 19, 2012
On Tuesday, the House Judiciary committee is marking up the Regulatory Freeze for Jobs Act (H.R. 4078), which would block virtually any “significant regulatory action”—basically, any step toward promulgating any regulation that has a large economic impact or is otherwise controversial— as long as unemployment is over 6 percent.   Rather than support initiatives that actually help the unemployed, a band of House Republicans prefer another cheap political trick here.  The reality is that a moratorium would leave millions of Americans more ...

Going Beyond the "Design-Basis Event"

by Daniel Farber | March 12, 2012
A conventional approach to safety is based on the concept of design events. A building code might say, for example, that a building should be able to survive a 7.0 earthquake. This approach has been basic to the regulation of nuclear reactors. As the interim report of the post-Fukushima NRC task force explains: [The regulation] also requires that design bases . . . reflect (1) appropriate consideration of the most severe of the natural phenomena that have been historically reported ...

EPA's Clean Water Act Jurisdiction Rulemaking Delayed Indefinitely

by James Goodwin | March 09, 2012
Inside EPA is reporting that yet another critical EPA rulemaking is now being delayed indefinitely.  This time it’s the agency’s rulemaking to codify a draft guidance clarifying whether Clean Water Act protections apply to wetlands and other marginal waters. EPA had projected on its online rulemaking gateway that it expected to issue a proposed rule this month. In the recent  Issue Alert that CPR President Rena Steinzor and I wrote, we were skeptical about this deadline, because the EPA has ...

New CPR Paper Takes on Defensive Medicine Myths and the Unsupported Case for Medical Malpractice 'Reform'

by Sidney Shapiro | March 08, 2012
In 1975, Indiana lawmakers joined a small but growing group of state legislatures passing aggressive medical malpractice “reforms.”  Indiana’s law capped damages that victims of medical malpractice can recover at $500,000 and eliminated damages for pain-and-suffering altogether, Frank Cornelius, a lobbyist for the Insurance Institute of Indiana, played a role in helping pass this legislation.  Twenty years later, Cornelius suffered a tragic series of negligent medical errors that left him wheelchair-bound, dependent on a respirator to breathe, and requiring a ...

A New Twist in the Kiobel Case

by John Knox | March 07, 2012
Last week, the Supreme Court heard oral argument in Kiobel v Royal Dutch Petroleum, the case asking whether corporations can be liable in federal court for violations of international human rights law.  In the decision under review, the Second Circuit – unlike every other circuit court to consider the question – had held that they could never be liable.  So one might think that a logical way for the petitioners to begin their oral argument would be to give an ...

Court to Feds: "Pay Up for Katrina Damage"

by Daniel Farber | March 07, 2012
Cross-posted from Legal Planet. The U.S. Court of Appeals for the Fifth Circuit has upheld a district court ruling that the federal government is liable for damage from the Katrina storm surge that went up the MRGO canal into the city. As I read the opinion, it is limited in three ways. First, it is crucial that MRGO — the Mississippi River Gulf Outlet — was a navigation project, not a flood control project. The government is immune from flooding ...

Greenhouse Gas Rule Now Stalled at White House Beyond Time Limit of Executive Order

by Ben Somberg | March 06, 2012
On November 7 of last year, EPA sent the White House Office of Information and Regulatory Affairs (OIRA) a rather important proposed rule – one that will, in some way, limit greenhouse gas emissions from new power plants.  The Greenhouse Gas New Source Performance Standard for Electric Generating Units for New Sources has now been at OIRA for 120 days – the maximum allowed by Executive Order. Executive Order 12866 is pretty clear on the deadline for OIRA to return ...

After Partial Settlement, Oil Spill Case on a Slow Boil

by Robert Verchick | March 05, 2012
The BP Oil Spill case settled! Well, part of it. The smaller part. But, still, we must count this a victory for U.S. District Judge Carl Barbier, whose reported 72 million pages of assigned reading will inevitably be shaved down. (Does this man have an iPad?) On Friday evening the court announced that BP had reached a settlement with the steering committee that represents thousands of private plaintiffs in the case. Judge Barbier postponed the trial indefinitely while the remaining ...

CPR Issue Alert: Administration's Failure to Adopt Needed Safeguards in a Timely Way is Costing Lives and Money

by Rena Steinzor | March 02, 2012
The toll:  An estimated 6,500 to 17,967 premature deaths, 9,867 non-fatal heart attacks, 3,947 cases of chronic bronchitis, and more than 2.3 million lost work and school days. That's just a partial tally of the costs Americans will bear because of unjustified delays in two critical health and safety regulations.  More broadly, the Administration’s Fall 2011 Regulatory Agenda—released late, at the end of January of 2012—shows how many of the most important rules currently in the regulatory pipeline are being ...

What Does It Mean that the Public Overwhelmingly Supports Specific Types of Regulation, But Questions 'Regulation' in General?

by Sidney Shapiro | February 28, 2012
A new Pew public opinion poll published last week shows substantial public support for specific types of regulation, but skepticism about regulation in general. While 70-89% of the public would either expand or keep current levels of five specific types of regulation, 52% say government regulation of business usually does more harm than good as compared to 40% who think regulating business is necessary to protect the public interest. The five types of regulation were car safety and efficiency, environmental ...

Extending Protection to Wildlife: Why the United States Should Ratify the Agreement on the Conservation of Albatrosses and Petrels

by David Hunter | February 27, 2012
a(broad) perspective Today’s post is first 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.  Agreement on the Conservation of Albatrosses and Petrels Adopted and Opened for Signature on June 19, 2001 Entered into Force on February 1, 2004 Number of Parties: 13 Signed by the United States, June 19, 2001 Sent to the Senate ...

Can Corporations Violate Human Rights? In Kiobel v. Royal Dutch Petroleum, the Supreme Court May Say Yes ... or No

by John Knox | February 23, 2012
On February 28, the Supreme Court will hear argument in Kiobel v Royal Dutch Petroleum, a case with far-reaching implications for efforts to hold corporations accountable when they commit or are complicit in abuses of human rights.  For over fifty years, Shell has extracted oil from Nigeria, causing great harm to the environment and people of the Niger delta.  The Ogoni people living in the delta protested Shell’s operations, and in response the Nigerian government harshly oppressed them.  Most infamously, ...

The Age of Greed: What the Chemical Industry Doesn't Want You to Know

by Rena Steinzor | February 22, 2012
Imagine for a moment that you’rethe chief executive of a company that manufactures chemicals used in plastics that become consumer products, especially plastic picnic ware.  The head of your product development lab reports that she has just gotten some troubling results regarding one of your biggest sellers—a chemical agent that makes it possible for plastic utensils to maintains their decorator colors.  The study shows that this agent causes severe neurological damage in rats.  The Toxic Substances Control Act, commonly referred ...

Mardi Gras, Check. BP "Trial of the Century" Here We Come.

by Robert Verchick | February 22, 2012
Well, another magnificent Mardi Gras has ended, and at this point, I’d normally be slouched on the sofa sipping a tomato juice (neat) and sorting beads. But not this year.  That’s because next week, squadrons of lawyers, journalists, petroleum engineers, and fisher folk are scheduled to descend on New Orleans, squeeze into a federal courtroom, and begin on Monday what the media have modestly called, “The Trial of the Century,” otherwise known as the BP Oil Spill litigation. Whatever the ...

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