June 10, 2009 by Holly Doremus

11th Circuit Stirs the NPDES Pot

Cross-posted by permission from Legal Planet.

In a decision that shows the power of Chevron deference, Friends of the Everglades v. South Florida Water Management District, the 11th Circuit has upheld EPA’s water transfers rule, which provides that the act of moving water from one waterway to another does not require a National Pollutant Discharge Elimination System permit under the Clean Water Act. The question of whether water transfers are subject to CWA permitting has been litigated several places, but most fiercely in the Everglades, where the Corps of Engineers’ Central and South Florida Project moves lots of water, containing lots of pollutants, in directions it would not otherwise go.

The CWA requires a permit for “any addition of any pollutant to navigable waters from any point source.” The question in the Everglades cases is whether the transfer of polluted water from one waterway to another qualifies as an “addition” of the pollutants to the receiving water. The answer matters because enormous pumps move water from canals which collect agricultural and municipal wastewater that, as the court put it in this case, “contains a loathsome concoction of chemical contaminants,” into the relatively pristine Lake Okeechobee, a backup drinking water …

June 9, 2009 by Daniel Farber

The first line of defense against climate regulation was that climate change didn’t exist. The next line of defense was that maybe it was real, but it wasn’t caused by humans. Now we’re up to the third line of defense: it does exist and it is caused by humans, but it’s too expensive to fix. For example, the Heritage Foundation estimates that Waxman-Markey would cost society a whopping seven trillion dollars by 2035.

These estimates fail to ask a critical question: Compared to what?

To begin with, the alternative to Waxman-Markey or other new legislation isn’t a regulation-free world. Instead, it’s a world in which a number of states like California are aggressively regulating greenhouse gas emissions – and more importantly, a world where the EPA is required by law to regulate greenhouse emissions under the Clean Air Act. There’s no …

June 8, 2009 by James Goodwin

When President Obama launched his open government initiative on his first full day on the job, few assumed that the ambitious endeavor it contemplated would be easy.  After all, lack of transparency and even active efforts to conceal information had become almost an inextricable feature of the federal government’s internal operations and decision-making—especially during the George W. Bush Administration.  A recent series of developments confirms just how challenging the effort to achieve a more open government will be; fortunately, some of these developments also suggest that the Administration has learned some lessons from the initiatives’ early difficulties and perhaps is now moving in the right direction.

Obama launched the good ship “open government,” via a memorandum issued on January 21, laying out a vision of open government that was predicated on three pillars:  transparency; public participation; and collaboration.  The memo directed the Chief Technology Officer …

June 5, 2009 by Yee Huang

Last month, the Obama Administration urged Congress to resolve the uncertainty in the protection of the nation’s waters and wetlands under the Clean Water Act (CWA).  In a letter signed by the heads of several agencies, the Administration noted the confusion, delay, and even neglect in protecting the nation’s waters in the aftermath of two Supreme Court decisions: SWANCC and Rapanos.  Reports from the EPA and the EPA Inspector General have documented the impacts – 20 million acres of wetlands and isolated waters are no longer protected (subscription required).

At issue is the reach of the Clean Water Act, passed in 1972 with the lofty mandate of restoring the integrity of the nation’s waters and eliminating pollution by 1985.  Although the latter goal is still out of sight, significant progress has been made in restoring the quality of the nation’s water.  Under separate provisions …

June 4, 2009 by Ben Somberg

On Tuesday, Representatives Henry Waxman and Bart Stupak sent a letter to FDA Commissioner Margaret Hamburg asking the agency to re-examine its assessment that bisphenol A (BPA) does not pose health risks to consumers. The FDA responded that it was already planning on doing so, and that a new decision would be released within "weeks, not months" (AP, Milwaukee Journal-Sentinel).

June 4, 2009 by James Goodwin

In 2007, the FDA came under criticism for failing to inform the public about studies it had had for two years which indicated that users of the diabetes drug Avandia faced up to a 42% greater chance of suffering a heart attack.  More recently, it was revealed that Bush-era political appointees at the agency surreptitiously worked with chemical industry representatives to downplay evidence of the adverse health effects caused by bisphenol A (BPA), a chemical frequently used in making plastic toys and baby bottles.  Thanks to scandals like these, the FDA has long been dogged by criticisms for the lack of transparency with which it conducts regulation.

The Obama Administration says it will be taking on the issue.  The FDA announced Tuesday that it would be beginning a process to enhance “the transparency of the agency’s operations and decision-making process.”

To carry out this new initiative …

June 2, 2009 by Ben Somberg

The Milwaukee Journal-Sentinel reported on Saturday, and the Washington Post on Sunday, about a meeting of industry groups in Washington last week to devise a plan to respond to criticisms of Bisphenol A (BPA).

From the Post:

Manufacturers of cans for beverages and foods and some of their biggest customers, including Coca-Cola, are trying to devise a public relations and lobbying strategy to block government bans of a controversial chemical used in the linings of metal cans and lids.

The Environmental Working Group has posted the full memo summarizing the meeting. The memo says that the commitee is focusing lobbying efforts on Connecticut and California, given pending legislation. And: "Their 'holy grail' spokesperson would be a 'pregnant young mother who would be willing to speak around the country about the benefits of BPA.' "

Serious health concerns ought to be treated as serious health concerns, not just a …

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