July 13, 2012 by Alexandra Klass

Federalism at Work: Recent Developments in Public Trust Lawsuits to Limit Greenhouse Gas Emissions

In a CPRBlog post in May 2011, I discussed the lawsuits filed on behalf of children against all 50 states and several federal agencies alleging that these governmental entities have violated the common law public trust doctrine by failing to limit greenhouse gas emissions that contribute to climate change.  The suits were filed by Our Children’s Trust, an Oregon-based nonprofit. The claims sought judicial declaration that states have a fiduciary duty to future generations with regard to an “atmospheric trust” and that states and the federal government must take immediate action to protect and preserve that trust.  At the time, I opined that although these claims were novel and would likely have little, if any, immediate effect on state climate policy, they relied on what has proved to be a flexible and powerful common law doctrine in at least some states.  As a result, I concluded there was likely to be significant variation in results between the states on creating opportunities for a new forum for consideration of climate change harms and potential legal responses.  Now, just over a year later, some lower courts have issued decisions in the cases and, as expected, the results vary widely from state …

July 12, 2012 by Lee Ewing

In a case that could have far reaching implications for agencies subject to the Regulatory Flexibility Act, the D.C. Circuit Court last month held that an EPA decision not to convene a small business advocacy review panel before issuing a rule was not judicially reviewable.  The decision by Judge Merrick Garland, for a unanimous 3-judge panel, was in National Association of Home Builders (NAHB) v. EPA.

NAHB challenged the EPA’s change of course on an “opt-out” provision of a rule established under the Residential Lead-Based Paint Hazard Reduction Act.  With the goal of protecting thousands of children from lead poisoning associated with older homes, the rule mandated that renovators of housing built before 1978 take certain steps to mitigate the dangers from lead paint.  The opt-out provision would allow an owner-occupant of housing without children under the age of six or pregnant women to waive …

July 11, 2012 by Catherine O'Neill

When environmental agencies set standards limiting toxic pollution in our waters, they theoretically aim to protect people who are exposed to these toxics by eating fish.  Currently, Washington state’s water quality standards protect only those who consume no more than one fish meal per month.  That means that those of us who eat more fish than this do so at our peril.    

Washington’s Department of Ecology had announced some years back that it intended to update the fish consumption rate (FCR) that in turn sets pollution limits for water and sediment cleanup across the state.  This was a welcome and long overdue step.  Washington’s current water quality standards are based on surveys of people’s fish consumption practices back in 1973-74.  Its cleanup standards are only slightly less outdated.

But Ecology’s effort is being fought by the industries responsible for contaminating Washington’s …

July 9, 2012 by Daniel Farber

Cross-posted from Legal Planet.

The Romney website portrays regulation as a huge drag on the economy. But it can’t decide who’s to blame. Is it all Obama’s fault? Or not just Obama, but a whole succession of Presidents, many of them presumably Republicans? Or is it bureaucrats who have overpowered all of these Presidents? The website goes around in circles, embracing each of these theories even though they contradict each other.

The website begins by placing the blame on developments during successive Presidencies — presumably that includes at least Obama and Bush, since “successive” implies at least two in a row. (Poor W, now taking the rap for having a pro-regulation Administration!)

But the website has another theory, too, which contradicts the first one. According to this second theory, the problem isn’t caused by Presidents at all, not even Obama. Instead, the root of …

July 5, 2012 by Nicholas Vidargas

Around the nation, a huge number of facilities produce, store, handle, and process a toxic mix of hazardous chemicals every day.  According to EPA data, 483 of those facilities put 100,000 people or more at risk of a chemical disaster.  Worse, because facility siting decisions have historically been, and continue to be, deaf to impacts on poor and minority communities, those facilities tend to be disproportionately located in communities that bear the brunt of society’s environmental ills.

In March, EPA’s National Environmental Justice Advisory Council (NEJAC) formally recommended that the agency expand its use of a little-known, and even lesser-used, part of the Clean Air Act called the General Duty Clause (GDC), which was passed in the wake of the Bhopal disaster.  The GDC states that “owners and operators of stationary sources producing, processing, handling, or storing chemicals listed under 40 C.F.R …

July 3, 2012 by Daniel Farber

Cross-posted from Legal Planet.

It got less attention than it should because it was upstaged by the Supreme Court’s healthcare decision, but last week’s D.C. Circuit ruling on climate change was almost as important in its own way.  By upholding EPA’s regulations, the court validated the federal government’s main effort to control greenhouse gases.  To the extent that the case got public attention, it was because the court affirmed EPA’s finding that greenhouse gases endanger human health and welfare.  However, I want to focus on a much more technical, but practically very important question about the scope of the EPA regulations.  Specifically, the issue is whether EPA was correct that the Clean Air Act unambiguously requires sources emitting more than certain amounts of greenhouse gases to use best available control technologies, even if they did not exceed threshold levels for conventional …

July 3, 2012 by Matthew Freeman

Last week, The Washington Post ran a story about regulation, headlined, "Regulators surge in numbers while overseers shrink." The story came from Bloomberg and was written by reporter Andrew Zajac. The headline captures the thrust of the piece. Zajac writes:

As the U.S. government’s regulatory bureaucracy has ballooned, one agency has been left behind: the office that oversees the regulators. The number of people working in federal agencies with regulatory authority has doubled to about 292,000 under both Republican and Democratic administrations during the past 30 years.

Yesterday, the Columbia Journalism Review dismantled the story's premise in the kind of takedown that ought to prompt the Post not just to run a correction, but to reconsider the way it reviews future Bloomberg stories on the subject before it prints them.

The takedown comes from Ryan Chittum, writing for CJR's "The Audit on …

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