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How Does the Clean Power Plan Measure Up?

Against intense pressure from the coal industry to tie Americans to dirty fuels forever, the Obama administration has surged forward in the battle to fight climate change. The Clean Power Plan rule, released today by the EPA, promises serious cuts in greenhouse gas emissions, while giving states the flexibility and incentives they need to reduce pollution, keep the grid humming, and save consumers money. The challenge, as EPA Administrator Gina McCarthy put it, was “wicked hard.”  But polls show Americans want action on climate change.

Last week, CPR Scholars released a white paper on a number of key issues to watch on the Plan, offering insights on what to look for and on how states could implement it. Some of the key questions the report raises are included below with my reactions after reading the final rule for the first time. This is the beginning of an on-going discussion. CPR Scholars will continue to monitor the implementation of this rule and will closely examine the final rule’s implications for both states and citizens alike.

 

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After 25 Years, is the Americans with Disabilities Act Protecting Workers?

July 26 marked the 25th Anniversary of the Americans with Disabilities Act (ADA), the federal civil rights legislation that protects the rights of people with disabilities to participate in and contribute to society, including the right to join the workforce.

Over the past quarter-century, the law has undoubtedly improved the lives of many Americans, but challenges remain, most notably with respect to equal employment opportunities. As U.S. Labor Secretary Thomas E. Perez aptly wrote in his statement on the anniversary, “While we celebrate the courage of the trailblazers who made the ADA possible and mark the momentous progress of the last 25 years, we must also be resolute about meeting the challenges that remain. Employment remains the unfinished business of the ADA.”

 

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Farm Bureau Effort to Thwart Bay Cleanup Progress Rejected by Third Circuit

Recently, the U.S. Court of Appeals for the Third Circuit affirmed the 2013 decision of the U.S. District Court for the Middle District of Pennsylvania that EPA did not exceed its Clean Water Act (CWA) authority in issuing the total maximum daily load (TMDL), or pollution diet, for the Chesapeake Bay.  The ruling affirmed the legality of the nation’s most ambitious TMDL and, more broadly, it also rejected the plaintiffs’ exceedingly narrow view of TMDLs.

As presented in a recent case brief, CPR Member Scholars Emily Hammond, Dave Owen, and Rena Steinzor and I argue that this decision is a good example of how judicial deference can protect important agency efforts to protect the environment.  According to brief co-author Rena Steinzor, “The Third Circuit provided resounding support for ongoing efforts to restore the Chesapeake and for EPA’s authority to work with states to adopt broad and protective TMDLs for impaired waters across the country.” Nonpoint sources of pollution – particularly from agriculture – are the primary cause of impairment in the Chesapeake Bay and in many water bodies across the country.  And TMDLs can be the perfect tool to address the problem – if EPA and the states embody the spirit of “cooperative federalism.”  

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The Clean Power Plan: Issues to Watch

As soon as next week, the Obama Administration is expected to release the final version of its long-awaited Clean Power Plan, an ambitious regulatory package under the Clean Air Act’s provisions that will ultimately reduce greenhouse gas emissions from power plants, the largest single source of U.S. emissions. The latest rumor in rumor- and sun-drenched Washington is that the rule will come on Monday.

It’s as certain as the sun rising in the east that the energy industry and their congressional allies on Capitol Hill will spare no adjectives in their opposition to the plan. Senate Majority Leader Mitch McConnell (R-KY) is already on record calling on the states to refuse to participate in the planning process for developing state implementation plans, as called for in the package. And it’s likely there’ll be a court challenge, as well. By now, it’s becoming a familiar playbook for the President’s opponents.

But once the volume and vitriol subsides just a bit, there’ll be some important work to do analyzing the final version of the Clean Power Plan. In a new issue alert out this morning, a distinguished group of 11 Center for Progressive Reform Member Scholars, all law professors who are experts in a variety of energy and environmental topics, identify key issues likely to determine the success of the plan.

As the paper’s coordinating editor, Alice Kaswan said in releasing The Clean Power Plan: Issues to Watch, “With the Clean Power Plan, the Obama Administration is finally confronting emissions from our existing energy infrastructure. If it sticks to its guns, it can put the United States on a course to meaningful reductions in greenhouse gas emissions, thus enabling our transition to a cleaner energy future and helping the U.S. assert more compelling international leadership on climate change. If it crumbles under political pressure, this chance won’t come again for this President, and we will only prolong the emissions that are progressively increasing our collective risk. The success of the plan in reducing emissions and facilitating a clean energy transition is not a foregone conclusion; EPA’s final policy choices will be critical.”

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Adjusting Overtime Salary Threshold Would Ensure 'A Fair Day’s Pay for a Fair Day’s Work'

“A fair day’s pay for a fair day’s work.” This is the premise on which the Federal Labor Standards (FLSA) Act was enacted 75 years ago. By 1938, the Great Depression had brought about high unemployment and had left workers with little leverage to negotiate over working conditions or hours, setting the stage for employers to squeeze labor by requiring long work hours without additional compensation. To prevent this unfair practice from continuing, the FLSA’s overtime provisions require employers to pay all hourly and many salaried employees overtime pay (time and a half) when they work more than 40 hours a week. Salaried employees making below a certain salary threshold automatically qualify for overtime pay, and those making more than the threshold qualify unless they are exempt (i.e., they are “employed in a bona fide executive, administrative, or professional capacity”). However, the law does not set the salary threshold to adjust automatically based on inflation, and thus, from time to time, the threshold has been updated to reflect economic growth.

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Montgomery County Should Appeal Stormwater Case

Last Wednesday, a Montgomery County Circuit Court judge held that the Montgomery County Water Quality Protection Charge is invalid and that the plaintiff should not have been required to pay any stormwater fee to the county. The case could have significant ramifications across the state for jurisdictions that have, like Montgomery County, established a stormwater fee similar to the one invalidated in the case.

First, some background.  In 2012, the Maryland General Assembly passed HB 987, which required any jurisdiction subject to a certain federal stormwater permit (including, for example, Baltimore City and Prince George’s County) to implement an annual stormwater remediation fee and a local watershed protection and restoration fund to hold those new funds. The law did not require the local governments to set the fee at any specific level or otherwise require them to collect a specified amount in revenues; each jurisdiction had discretion in setting the local stormwater remediation fee.  

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The SBA Office of Advocacy . . . Taxpayer Funded Lobbyist for Berkshire Hathaway?

When it commenced on June 1, OIRA’s review of the EPA’s draft final rule to limit greenhouse gas emissions from existing power plants launched a flurry of lobbying activity among a veritable who’s who of America’s largest fossil fuel polluters.   In just over six weeks, the White House’s antiregulatory shop has presided over no less than 21 Executive Order 12866 meetings, the majority of which involved high-priced corporate lobbyists seeking to dilute, delay, or block the rule outright.

The log for a July 1 meeting requested by Berkshire Hathaway Energy contains an interesting tidbit:  Among the attendees was a representative of the Small Business Administration’s (SBA) Office of Advocacy.  Nominally, of course, the mission of the SBA Office of Advocacy is to ensure that the concerns of America’s small businesses are adequately represented in the federal rulemaking process.  So, it’s a little perplexing that a member of the SBA Office of Advocacy staff would be seated alongside the President and CEO of one of the largest and wealthiest energy concerns in the United States and two of its vice presidents.  Berkshire Hathaway Energy is of course a component of Berkshire Hathaway, the Chairman and CEO of which is Warren Buffet who himself is currently listed as the third wealthiest person on earth.

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Kill a Worker? You're Not a Criminal. Steal a Worker's Pay? You Are One.

Labor Secretary Tom Perez came into office pledging to create good jobs and take on the economic injustice that oppresses blue-collar workers, from raising the minimum wage and restoring unpaid overtime to combatting wage theft. Luckily, the head of his Wage and Hour Division, David Weil, the author of a revelatory report on how to make the most of strategic enforcement, has moved out quite aggressively.  It’s a pity that other, even more serious crimes, don’t seem to get the same priority from elsewhere in the Labor Department.

Yesterday, Weil and New York State Attorney General Eric Schneiderman announced that they’d filed charges and secured a guilty plea from the owner of nine Papa John’s restaurants who did not pay his workers the minimum wage, stole some of the wages they owed the workers, and fabricated tax returns to cover up his misdeeds. 

“My office will not hesitate to criminally prosecute any employer who underpays workers and then tries to cover it up by creating fake names and filing fraudulent tax returns,” said Schneiderman.  Added Weil, “This judgment should be a wake-up call for all employers who think they can break the law, not pay their workers, cover it up and get away with it.  It is part of our commitment to ensure that employers who play by the rules aren’t unfairly undercut by competitors who cheat, and that workers are guaranteed a fair day’s pay for a fair day’s work.”

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CPR Scholars Submit Amicus Brief in Supreme Court Case FERC v. Electric Power Supply Association

Today, CPR Member Scholars, with a larger group of law professors, submitted an amicus brief to the Supreme Court in the case of Federal Energy Regulatory Commission (FERC) v. Electric Power Supply Association.

The professors submitted the brief because, "they believe that the U.S. Court of Appeals for the District of Columbia Circuit made serious errors when it held that the Federal Energy Regulatory Commission (FERC) lacked authority to regulate operators’ rules for demand response (DR) in the wholesale electricity markets. That holding is contrary to the text, history, and structure of the Federal Power Act (FPA), which mandates that FERC must remedy 'practices . . . affecting' wholesale electricity rates to ensure such rates are just and reasonable. Moreover, it ignores FERC’s reasonable interpretation of its statutory authority."

 

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The Real Nine Most Terrifying Words in the English Language

“I’m Republican, and I want to do regulatory reform.”  Whether they’ve uttered that exact nine-word phrase or not, virtually every Republican on Capitol Hill has enthusiastically endorsed the sentiment it expresses at some point—if not on a near-daily basis—during the last few years.  Who could blame them?  The unshakable conviction that our regulatory system is broken and that gutting it is the key to its salvation is apparently one of the few areas where all the GOP’s members can find common ground.  Attacking the regulatory system has become a safe topic of conversation for conservatives—almost their version of “weather” small talk.  And not for nothing, they’re pretty confident it’s a political winner, too.

Witness this week, when both the House and the Senate have scheduled oversight hearings for the White House Office of Information and Regulatory Affairs (OIRA)—an obscure bureau with a direct political line to the Oval Office that is charged with reviewing agency regulations.  In practice, OIRA serves as the single most powerful antiregulatory force in the rulemaking process, translating the White House’s political calculations and intense lobbying behind closed doors from well-connected corporate interests into the delay, dilution, or death of pending regulations.  To my knowledge, both chambers of Congress have never scheduled two OIRA oversight hearings in the same week before.

CPR Member Scholar Noah Sachs is scheduled to testify at the hearing before the House Judiciary’s Subcommittee on Regulatory Reform, Commercial, and Antitrust Law today.  As he explains in his testimony, OIRA is arguably one of the greatest sources of dysfunction in the rulemaking process, working time and again to prevent agencies from carrying out their statutory missions of protecting people and the environment in an effective and expeditious manner.  Specifically, he writes:

Not only does OIRA review extend the length of time for rulemaking, but it also provides numerous opportunities for political interference with the content of the rule.  During OIRA review of agency regulations, industry lawyers and lobbyists use OIRA as a court of last resort to weaken or block pending regulations that have been vetted within the agency that promulgated them.

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