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April 2, 2020 by Joseph Tomain

Precaution and the Pandemic -- Part I

In this time of pandemic, we are learning about our government in real time – its strengths and weaknesses; the variety of its responses; and about our relationship, as citizens, to those we have elected to serve us. Most importantly and most immediately, we have learned the necessity of having a competent, expert regulatory structure largely immune from partisan politics even in these times of concern, anxiety, and confusion.

One of life’s lessons that most of us have learned, most likely from our mothers, is that it is better to be safe than sorry. That bit of folk wisdom has been embedded in environmental law for about three decades, where it is known as the precautionary principle. Briefly, that principle can be explained this way: “Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.”

To be sure, the principal has its advocates and critics, and, unsurprisingly, it has been highly politicized. However, the principle is not new, and it is embedded in many of the laws we use to regulate potential hazards. Most significantly for today and for our concerns …

April 2, 2020 by Daniel Farber
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The states have been out in front in dealing with the coronavirus. Apart from President Trump's tardy response to the crisis, there are reasons for this, involving limits on Trump's authority, practicalities, and constitutional rulings.

Statutory limits

As I discussed in a previous post, the president's power to deal with an epidemic is mostly derived from statutes. The available statutory powers include deploying federal resources and funding to support the states; controlling the movement of infected individuals across state lines and the U.S. border; and dealing with infections within the government's workforce. [Addendum: The way this was originally stated, it was a bit too narrow. The feds can also quarantine those who are likely to infect people who will cross state lines.]

States have broader powers. Governors, and often mayors, have the power to impose quarantines, close down …

April 1, 2020 by David Flores
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Hundreds of thousands of Americans, from the southern California surf town of Imperial Beach to the rowhouse-lined blocks of Baltimore, are banding together to bring lawsuits against several dozen of the most powerful and wealthy corporations in the world. What do these residents and those from various coastal cities; the state of Rhode Island; Boulder, Colorado; and members of the West Coast's largest commercial fishing trade organization have in common?

All of these communities and businesses have been harmed – and are likely to experience future harms – as a result of global climate change, attributed to decades of production, promotion, and disinformation by multinational fossil fuel corporations. Government and business leaders are suing to hold these fossil fuel producers accountable, seeking compensation and other forms of redress, in state courts using tort law.

While residents may all suffer some harm from increased flooding driven by more intense rainfall …

April 1, 2020 by Michael C. Duff
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Front-line health care workers and other first responders are in the trenches of the battle against the COVID-19 virus. The news is replete with tragic stories of these workers fearing death, making wills, and frantically utilizing extreme social distancing techniques to keep their own families sheltered from exposure to the virus. Should they contract the virus and become unable to work, they may seek workers' compensation coverage, which is the primary benefit system for workers suffering work-related injuries or diseases.

Under workers' compensation, workers are entitled – after a waiting period of seven days or so, depending on the state – to a portion of the wages earned at the time of suffering the work-related injury or illness and payment of reasonably necessary related medical expenses.

Yet, as Bill Smith, president of the Workers' Advocates Law and Injury Group (the largest group of employee-side lawyers in the country) noted …

March 31, 2020 by Brian Gumm
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On March 27, the Center for Progressive Reform joined environmental justice, public health, and community advocates in calling out the U.S. Environmental Protection Agency (EPA) for suspending enforcement of our nation's crucial environmental laws. The agency made the move as part of the Trump administration's response to the coronavirus pandemic, despite mounting evidence that increased air pollution worsens COVID-19, the disease the virus causes.

Not missing the opportunity to use the crisis as an excuse to press its assault on our safeguards, the EPA said last week that it would not "seek penalties for noncompliance with routine monitoring and reporting obligations" for an indefinite period of time. As the coalition of groups noted, the order is broad and "relieves polluting and hazardous industries from meeting environmental standards during the coronavirus outbreak, with no end date in sight."

The enforcement suspension will almost certainly lead to …

March 30, 2020 by Daniel Farber
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It's a truism among disaster experts that people who were disadvantaged before a disaster are also the most vulnerable during the disaster. There are aspects of the coronavirus pandemic that fit this mold. Here are some of the disparities we can expect to see.

Rural v. Urban

Much of our economic growth and job opportunity is in cities, which is why young people continually leave the countryside. Life expectancies also tend to be lower in rural areas. Although it's hard to be sure, people in those areas may also be disadvantaged in terms of the coronavirus. The virus is likely to spread more slowly in rural areas because the web of interpersonal interactions is less dense and because rural areas are further from the airports that initially spread the disease. That's a definite advantage. But when the epidemic does …

March 26, 2020 by Daniel Farber
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Originally published on Legal Planet. Reprinted with permission.

The Trump administration's major deregulatory efforts share a common theme. They assiduously avoid having to rely on scientific or economic evidence. Confronting that evidence is time-consuming and difficult, particularly when it often comes out the other way. Instead, the administration has come up with clever strategies to shut out the evidence.

The effort to repeal the Clean Power Plan illustrates some of these strategies. The Obama administration's plan would have cut carbon emissions from power plants along with destructive particulate emissions from those plants. The Trump administration didn't have much of a policy argument against the plan. So instead, it argued that the Clean Air Act just didn't give EPA the power to take sensible measures against climate change. As the old trial lawyer's saying puts it, "If the evidence is against you, argue the law."

The Clean …

March 25, 2020 by Sidney Shapiro, Liz Fisher
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Whatever one's political views, the end goal regarding the coronavirus (COVID-19) is the same – to minimize the number of people dying and suffering from severe disease. As commentators have repeatedly noted, we need genuine expertise for that. Beyond involving scientists and physicians in decision-making, there are three steps in determining what that expertise should look like and how we tap into it most effectively.

First, the experts can inform decision-making, even if uncertainty will remain. While we can all agree on the end point – no one dying – how to get there is not clear, even to the experts. Rigorous expert judgment and a respect for science are therefore required. Expertise is developed not just from professional training, but from experience in using that training over and over, building up a store of experience that makes one a better expert.

Ultimately, however, the choices in uncertain situations are …

March 24, 2020 by Darya Minovi
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As the coronavirus (COVID-19) continues to spread around the globe, the inequalities in American society have come into even sharper relief. People with low incomes who are unable to work from home risk being exposed to the virus at work or losing their jobs altogether. Their children may no longer have access to free or reduced-price meals at school. They are also less likely to have health insurance, receive new drugs, or have access to primary or specialty care, putting them at a greater risk of succumbing to the illness. As with any shock to the system – natural disaster, conflict, and now a pandemic – vulnerable populations are hit hardest and have a harder time bouncing back.                                                

In addition to socioeconomic risk factors, a less obvious but often inescapable hazard puts poor people in a literal and figurative chokehold: pollution. People with underlying health conditions, such as heart …

March 23, 2020 by Katie Tracy
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As the coronavirus (COVID-19) sweeps the planet, it threatens billions of people and all but promises a global economic recession of uncertain magnitude. As I'm sure you are, I’m deeply concerned about what this means for my family, my neighbors, and my broader community.

I’m particularly concerned about working people who frequently interact with the general public and provide essential services, and thus cannot work from home. At the forefront of my mind are custodial and janitorial workers, grocery clerks, bank tellers, gas station attendants, bus drivers, garbage and refuse collectors, pharmacists, health care workers, and law enforcement officers. These workers are our new first responders in this time of crisis, and it’s our responsibility, personally and as a nation, to do everything within our power to protect them and their families from a potentially deadly virus.

I’m also concerned about protecting from …

CPR HOMEPAGE
More on CPR's Work & Scholars.
April 2, 2020

Federalism and the Pandemic

April 2, 2020

Precaution and the Pandemic -- Part I

April 1, 2020

The Coronavirus and Shortcomings of Workers' Comp

April 1, 2020

Webinar Recap: State Courts, Climate Torts, and Their Role in Securing Justice for Communities

March 31, 2020

CPR Joins Advocates in Blasting EPA's Free Pass for Polluters

March 30, 2020

Inequality and the Coronavirus

March 26, 2020

The Flight from Evidence-Based Regulation