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June 29, 2012 by David Driesen

Health Care's New Commerce Clause: Implications for Environmental Law

Although the Supreme Court upheld the Affordable Care Act’s requirement that most individuals purchase health insurance (called the individual mandate) as within Congress’ power to levy taxes, it stated that Congress lacked the power to enact it under the Commerce Clause.  Under prior case law, Congress could regulate activities substantially affecting interstate commerce by any means not offending the bill of rights.  Since the Affordable Health Care Act regulates a set of activities that substantially affect interstate commerce, namely the provision of health care (including insurance), it posed no substantial issue under that case law.  The objection to the “individual mandate” at bottom involved an effort by conservatives to defend individual liberty of the type protected by the Court during the Lochner era, when it created “substantive due process” doctrines to ward off progressive legislation. 

Yet, the Court agreed to redefine the issue as whether the activity regulated by a single provision of this plainly constitutional statute, namely the individual mandate provision, substantially affected interstate commerce.  On this matter, five justices—Alito, Kennedy, Roberts, Scalia, and Thomas—answered, in essence, that this provision regulated inactivity, the failure to purchase insurance. They created, out of whole cloth, a brand new …

June 28, 2012 by Robert Verchick
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Good news for the Arctic! “I believe there will not be an oil spill”—this according to Ken Salazar, the nation’s Secretary of Interior and, now, environmental crystal-gazer. As someone still fretting about BP’s mess in the Gulf, I want to believe; but it’s hard. So let me back up.

Earlier this week, Secretary Salazar said it was “highly likely” that his agency would grant Shell Oil permits to begin drilling exploratory wells in Arctic waters north of Alaska, despite opposition from many environmental groups. While acknowledging the many challenges presented by such an operation, the Secretary recalled his department’s new permitting standards and expressed confidence in a new oil containment device that was recently tested in Washington’s Puget Sound.

Then: “I believe there will not be an oil spill. . . . If there is, I think the response capability is there to arrest …

June 27, 2012 by Ben Somberg
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Member Scholar Noah Sachs and Policy Analyst Aimee Simpson have sent a letter to the EPA nominating the chemical Bisphenol A (BPA) to be included on the “Fourth Contaminant Candidate List” for possible regulation. They write:

Pursuant to the Safe Drinking Water Act Amendments of 1996 (SDWA), the U.S. Environmental Protection Agency (EPA) must compile a list of unregulated contaminants that are known or anticipated to occur in public water systems and may require regulation under the SDWA.  EPA then must make a decision about whether or not to regulate a least five of the contaminants on the list.  EPA recently issued a notice and request for nomination of chemical and microbial contaminants for possible inclusion in the fourth drinking water Contaminant Candidate List (CCL 4).  Under existing guidelines, EPA selects contaminants for a CCL based on a scoring system that addresses two primary factors:  health …

June 22, 2012 by Ben Somberg
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The EPA has quietly missed another deadline on issuing the final revised “boiler MACT” rule. The agency had pledged for many months that the rule would be finalized in April. Then, in an April 30th “status report” filing with the DC Circuit Court of Appeals, the agency said: “EPA intends to take final action on this proposed rule in the Spring of 2012.” Wednesday was the first official day of summer.

The revised version of the rule will provide less pollution reduction than the original version, but is still expected to prevent thousands of deaths each year. James Pew, of Earthjustice, told E&E News last week that the rule has been made “illegally weak.”

The rule has been under review at OMB’s Office of Information and Regulatory Affairs (OIRA) since May 17. OIRA Administrator Cass Sunstein wrote in a Chicago Tribune op-ed in March that this …

June 21, 2012 by Noah Sachs
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a(broad) perspective

Today’s post is the fifth 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.  Previous posts are here.

1996 Protocol to the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter Adopted by the Parties to the London Convention (including the United States) and Opened for Signature on November 7, 1996

Entered into Force on March 24, 2006 Number of Parties: 42

Signed by the United States on March 31, 1998 Sent to the Senate on September 4, 2007 Reported favorably by the Senate Foreign Relations Committee on July 29, 2008

The world’s oceans have long served as the world’s toilet. For decades, nations allowed ships bearing their flags to …

June 19, 2012 by David Hunter
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This is not your father’s Earth Summit.  This week’s UN Conference on Sustainable Development is meant to assess how far we’ve come from the 1992 UN Conference on Environment and Development (ambitiously named the Earth Summit).  And the 1992 Earth Summit was ambitious, featuring the largest gathering of world leaders in history as well as thousands of civil society and private sector participants whose presence heralded the emergence of a global environmental movement.  The original Earth Summit endorsed sustainable development as the conceptual framework for the future balancing of environment and development.  It also reshaped international environmental governance, completing binding treaties on climate change and the conservation of biodiversity; the Rio Declaration, with its overarching principles of sustainable development; a set of non-binding forest management principles; Agenda 21, a five-hundred page blueprint for achieving sustainable development; and establishing the UN Commission on Sustainable Development …

June 15, 2012 by James Goodwin
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Today, the EPA announced its new proposed National Ambient Air Quality Standard (NAAQS) for fine particulate matter, commonly referred to as soot.   Soot is one of the most common air pollutants that Americans encounter, and it is extremely harmful to our health and the environment, contributing to premature death, heart attacks, and chronic lung disease. Today’s proposal is a significant step forward that will bring tremendous benefits for the public if and when it is finalized.

The proposal comprises two parts—an annual standard and a daily standard.  EPA is proposing to maintain the daily standard of 35 micrograms per cubic meter of air (hereafter “micrograms”), while lowering the annual standard from 15 micrograms to within the range of 12 to 13 micrograms.  Significantly, this proposal is consistent with the recommendation of the EPA’s scientists, which was endorsed by the Clean Air Science Advisory Committee …

June 15, 2012 by Ben Somberg
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CPR President Rena Steinzor and Senior Policy Analyst Matthew Shudtz sent a letter to EPA Administrator Lisa Jackson this morning concerning the EPA’s Integrated Risk Information System (IRIS). From the letter:

We are concerned that the recent establishment of the SAB Chemical Assessment Advisory Committee (CAAC) institutionalizes yet another opportunity for potentially regulated parties to disrupt the smooth development of new IRIS profiles. We are writing to encourage you to pay special attention to the nominees’ actual and perceived conflicts of interest as you sign off on the final membership list for the subcommittee. Of the 116 nominees, we count only four individuals who work for environmental NGOs. By contrast, five individuals from the Dow Chemical Company alone have been nominated, as have five other people employed by potentially regulated parties and 21 individuals whose consultancy firms stand to gain or lose significant business depending on …

June 14, 2012 by Lisa Heinzerling
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Cross-posted from Georgetown Law Faculty Blog.

Despite initial signs suggesting a different path, the Obama Administration has promoted the role of cost-benefit analysis in regulatory policy as fiercely as any administration before it. Nothing demonstrates this more clearly, I think, than the Administration’s bizarre and unfortunate decision to apply cost-benefit analysis to measures to limit rape and sexual abuse. 

Last month, the Department of Justice issued a final rule on rape and sexual abuse in confinement facilities.  The rule was required by the Prison Rape Elimination Act ("PREA"), a law passed by a unanimous Congress and signed by President George W. Bush.  In PREA, Congress directed DOJ to set national standards to prevent, detect, and respond to rape and other forms of sexual abuse in federal, state, and local confinement facilities.  PREA did not say that DOJ should do a cost-benefit analysis to decide whether actions …

June 13, 2012 by Alice Kaswan
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California environmental justice groups filed a complaint last week with the federal Environmental Protection Agency arguing that California’s greenhouse gas (GHG) cap-and-trade program violates Title VI of the federal Civil Rights Act, which prohibits state programs receiving federal funding from causing discriminatory impacts.  They allege that the cap-and-trade program will fail to benefit all communities equally, and could result in maintaining and potentially increasing GHG emissions (and associated co-pollutant emissions) in disadvantaged neighborhoods that already experience disproportionate pollution.

While the complaint reflects real concerns about the distributional impact of a GHG cap-and-trade program on associated co-pollutants, it’s important to keep the complaint in perspective.  Neither it, nor previous lawsuits, present the multi-faceted set of environmental justice arguments on GHG cap-and-trade. An earlier suit challenged the sufficiency of the state agency’s alternatives analysis under California’s environmental review law, and this claim raises potential disparate …

CPR HOMEPAGE
More on CPR's Work & Scholars.
June 29, 2012

Health Care's New Commerce Clause: Implications for Environmental Law

June 28, 2012

Secretary Salazar's Unfortunate Prediction

June 27, 2012

Safe Drinking Water Act Provides EPA Key Opportunity to Regulate BPA

June 22, 2012

Summer is Here, and With it Another Missed Deadline for a Key Regulation

June 21, 2012

Trash Overboard! Why the U.S. Should Ratify the 1996 Protocol to the London Convention

June 19, 2012

Meeting Low Expectations at Rio+20

June 15, 2012

EPA's New Soot Proposal: The Good News, A Reality Check, Some Hopes, and Some Fears