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May 28, 2010 by Ben Somberg

NY Governor Paterson Holding up Mercury Reduction Initiative; Who Pays the Price?

The Albany Times Union had a nifty, if depressing, scoop over the weekend in "Paterson bottling up mercury ban at plant":

Efforts by the state Department of Environmental Conservation to ban mercury-tainted coal fly ash used by a Ravena cement plant have been bottled up for more than 19 months in a special regulations review office of Gov. David Paterson.

The DEC request to yank permission from Lafarge North America for ash use at its Route 9W plant has been sitting in the Governor's Office of Regulatory Reform since October 2008, according to records obtained under the state Freedom of Information Act by the Times Union.

This isn't the first time we've heard about questionable regulatory review maneuvers in the Paterson administration; last August, the governor issued an executive order seeking to "eliminate unnecessary regulatory requirements" by "removing needless and excessive rules." Here in this space, Rebecca Bratspies laid out how that move was a big win for industry, and Sidney Shapiro compared the announcement to Ronald Reagan's Task Force for Regulatory Relief.

The situation in New York sounds like something of a parallel to that with federal regulation of coal ash itself, where the EPA …

May 27, 2010 by Alejandro Camacho
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Even if a climate change bill like Kerry-Lieberman were to become law, the effects of climate change will still be dramatic, making adaptation a crucial complement to mitigation activities for addressing climate change. As specialists on local conditions with the capacity to innovate at a smaller scale, state and local authorities need to retain the authority to adopt adaptation strategies that prevent, reduce, and manage the effects that climate change will have on vulnerable natural resources under their jurisdiction. Though a federal role in adaptation planning is indispensable, it would be unwise to excessively tie the states’ hands in promoting natural resource adaptation. Unfortunately, Kerry-Lieberman and Waxman-Markey (ACES) risk doing just that by centralizing adaptation in a new federal authority.  The bills should be written to encourage robust state and local action to formulate and implement natural resource adaptation measures.

Kerry-Lieberman and ACES, adopted in the House …

May 27, 2010 by Matt Shudtz
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EPA today announced (pdf) that it will begin a general practice of reviewing – and likely rejecting – confidentiality claims regarding chemical identities and supporting data in health and safety studies submitted to the agency under TSCA.  The news is long overdue, but very welcome.

One of Congress’s primary goals in drafting TSCA was to create regulatory mechanisms through which EPA would gather information about the human health and environmental effects of toxic chemicals. Recognizing the societal benefits of broad disclosure of that information, Congress created an exemption for “health and safety studies” from TSCA § 14’s general prohibition on EPA’s disclosure of information submitted to the agency and claimed to be trade secrets or confidential business information (CBI). Health and safety information, in other words, was too important to be hidden from the public.

But despite the plain language of the statute, EPA for years simply …

May 26, 2010 by Frank Ackerman
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Cross-posted from Triple Crisis.

Despite talk of a moratorium, the Interior Department’s Minerals and Management Service is still granting waivers from environmental review for oil drilling in the Gulf of Mexico, including wells in very deep water. Until last month, most of us never thought about the risk that one of those huge offshore rigs would explode in flames and then sink, causing oil to gush out uncontrollably and befoul the oceans. The odds seemed low, and still do: Aren’t there lots of drilling rigs in use, year after year? Twenty years ago, your elected representatives thought that you’d be happy to have them adopt a very low cap on industry’s liability for oil spill damages.

Nuclear power was never quite free of fears; it was too clearly a spin-off of nuclear weapons to ignore the risk of a very big bang. Yet …

May 25, 2010 by Joel Mintz
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The recent horrific events in the Gulf of Mexico have presented immense challenges to the Obama administration and many of the federal career officials who are responsible for regulating the safety of offshore oil extraction and responding to spills like the one that continues to gush from the remains of the Deepwater Horizon oil rig at great volume. To their credit, a number of presidential appointees and career officials with duties regarding spill countermeasures have been working very hard to oversee the intense and complex efforts now underway to cap and contain the spill—efforts which have been greatly complicated by the depth and inaccessibility to human beings of the point of discharge. Undoubtedly, their response to this emergency has been far more robust than the G.W. Bush administration’s confused and tepid reaction to the devastation wrought by Hurricane Katrina. Nonetheless, thus far the federal …

May 24, 2010 by James Goodwin
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“Although the 1976 RCRA Resource Conservation and Recovery Act statute does not require benefit-cost justification of RCRA regulations, this RIA regulatory impact analysis presents a qualitative benefit analysis for compliance with OMB’s 2003 ‘Circular A-4: Regulatory Analysis’ best practices guidance.” This statement comes from the executive summary to the cost-benefit analysis (CBA) that EPA sent to OIRA last October with its original proposed rule for regulating coal ash waste, and it is without a doubt the most important sentence in the entire 165-page document. It is, in its way, a yelp of protest from EPA against being required by OIRA to spend time and resources measuring the likely effectiveness of a proposed regulation by standards not required by statute.

Not surprisingly, OIRA was unmoved. Indeed, a before-and-after comparison of EPA’s original and final CBAs released with EPA’s proposed coal ash rule reveals the extent …

May 21, 2010 by Victor Flatt
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BP CEO Tony Hayward has been careful to say his company will pay for the "clean-up" from the oil spill -- meaning, not the damages. But if past disasters are any guide, the clean-up will be just a small fraction of the damages from the spill (the deaths, the damage of the oil to natural resources and the humans that depend on them, and more). Many media have commented that Hawyard is a “jerk”, but the who-pays-for-the-damages problem isn't really about Hayward and BP. Rather, it points out a weakness with our health and safety laws not unique to this case – they do not always demand and require that industry pay for the harm it causes society.

Hayward, in fact, has been answering in the only way that he legally can while still representing the shareholders of the corporation. Why? The law (specifically the Oil Pollution Act …

May 20, 2010 by Ben Somberg
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CPR Member Scholar Holly Doremus and fellow UC Berkeley School of Law Professor Eric Biber have penned an op-ed in today's LA Times arguing that the Administration's plan to split the Minerals Management Service in two in response to the BP oil spill disaster falls short of what's needed.

Write Doremus and Biber:

The political pressure to prioritize rapid development over safety won't evaporate if the MMS is split. The new safety agency would still be under the supervision of the Department of Interior, where it would have to compete with its bureaucratic sibling. Environmental and safety interests have been losing that competition for years. Giving them a new name and logo won't automatically change that outcome.

Second, environmental protection is not just a matter of enforcing a clear set of regulations as wells are being drilled or operated. The key environmental …

May 20, 2010 by Rena Steinzor
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Today, the Senate appropriations subcommittee chaired by Senator Tom Harkin (D-IA) will discuss "Investing in Mine Safety: Preventing Another Disaster" and hear testimony from the notorious Don Blankenship, chief executive officer of Massey Energy, owner of the Upper Big Branch disaster where 29 miners lost their lives on April 5. 

Workers safety and health advocates have posted calls over the past months to “send Blankenship to jail,” perhaps under federal racketeering laws, and the FBI opened an inquiry into potential criminal charges against company officials who may have bribed federal inspectors to keep the mines running despite these repeated violations. The relevant law is in fact remarkably straightforward, and even the evidence amassed in press accounts, by definition much less than the FBI could and should uncover, provides ample support for a strong case against Don Blankenship under the Mine Safety Act itself, which incorporates the “responsible …

May 19, 2010 by Sidney Shapiro
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Cross-posted from ACSblog.

The Center for Progressive Reform (CPR) today released a white paper examining "plausibility pleading"-the Supreme Court's heightened pleading standard that plaintiffs must satisfy in order to bring their claims in federal court. The paper, Plausibility Pleading: Barring the Courthouse Door to Deserving Claimants, comes after the Court's decision one year ago this week in Ashcroft v. Iqbal that this standard applies to all types of federal cases. The Court first created this standard in Twombly v. Bell Atlantic, three years ago.

Iqbal and Twombly will lead to the dismissal of meritorious cases, thereby weakening the civil justice system and making it more difficult to hold businesses or the government accountable for wrongful actions. Increased dismissals will also deprive federal regulators of vital information needed for improving the regulations that protect people and the environment. Our paper therefore calls on Congress to …

CPR HOMEPAGE
More on CPR's Work & Scholars.
May 28, 2010

NY Governor Paterson Holding up Mercury Reduction Initiative; Who Pays the Price?

May 27, 2010

Why Federal Climate Change Legislation Shouldn't Stop States From Innovating in Adaptation Efforts

May 27, 2010

EPA Announces New Policy on CBI in Health and Safety Studies

May 26, 2010

Socializing Risk: The New Energy Economics

May 25, 2010

Assessing the Federal Response to the Deepwater Horizon Catastrophe

May 24, 2010

Eye on OIRA: No Room for a More Compassionate CBA in EPA's Coal Ash Rule

May 21, 2010

Don't Blame Tony Hayward: Why We Need Laws and Regulations That Specifically Hold Parties Liable for the Harm They Cause