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May 30, 2014 by Joel Eisen

D.C. Circuit Vacates FERC Smart Grid “Demand Response” Rule

Last Friday (May 23), in Electric Power Supply Association v. FERC, a D.C. Circuit panel split 2-1 and vacated Order 745, a Federal Energy Regulatory Commission (FERC) rule designed to promote “demand response” (DR). DR is a rapidly growing and valuable means of reducing electricity demand, thereby benefiting consumers and the environment. It is also an important part of the Smart Grid, in which smart meters and devices that communicate with one another and energy service providers can further promote these goals. Indeed, former FERC Chairman Jon Wellinghoff has called DR the Smart Grid’s “killer app.”

The case tested a question of near first impression about the Smart Grid: which level of government regulates it? For now, the D.C. Circuit has held squarely for the states, concluding that DR regulation is a matter of exclusive state jurisdiction. If the decision stands, it will have many adverse implications for federal regulation to advance the Smart Grid and use the wholesale electricity markets to achieve energy reductions and environmental goals.

What is “Demand Response”?

First, a bit about DR. It is different from using a power plant to generate electricity. DR programs focus on reducing consumption at specific times …

May 29, 2014 by Erin Kesler
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Center for Progressive Reform Member Scholar and Professor of Law and Emory University School of Law William Buzbee will be testifying today at a House Committee on Small Business Administration Hearing entitled, “Will the EPA’s ‘Waters of the United States’ Rule Drown Small Businesses?”

According to Buzbee’s testimony:

The purpose and logic of the new “waters” proposed regulations, in brief:       

These proposed regulations and a massive accompanying science report referenced and summarized in the Federal Register notice are an attempt to reduce uncertainties created by three Supreme Court decisions bearing on what sorts of "waters" can be federally protected under the Clean Water Act.  The two most important recent cases are the Supreme Court’s decisions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC) and United States v. Rapanos, 547 U.S …

May 28, 2014 by Victor Flatt
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On May 14, 2014, the EPA proposed new rules to control “residual risk” from hazardous air emissions (such as from benzene) at the nation’s petroleum refineries.

The Clean Air Act requires the EPA to calculate whether or not residual risk to human health exists after the agency has put Maximum Achievable Control Technology (MACT) in place to control hazardous air emissions.  Studies have long shown residual risk to the public after MACT was put in place at refineries, and this finding forms the legal basis for this rule.  In particular, the EPA proposes addressing more fugitive emissions, addressing emissions controlled during changes in facility operation, and putting new requirements on storage vessels.

The last EPA rulemaking on residual risk from refineries occurred during the George W. Bush administration (initiated in 2002), and that proposal was controversial in at least three respects.  First, it wasn’t clear …

May 27, 2014 by James Goodwin
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Sometime last Friday—the Friday before the Memorial Day holiday weekend—the Obama Administration quietly issued the Spring 2014 Regulatory Agenda.  It’s becoming something of a tradition for the Administration to release this semiannual document on classic “take out the trash” news days in this fashion.  The Fall 2013 Regulatory Agenda was similarly released to whatever the opposite of fanfare is on the day before Thanksgiving, while the Spring 2013 Agenda came out the day before Independence Day.

It’s hard to blame Obama’s political folks for resorting to these kinds of tricks to bury the news about the release of the regulatory agenda, since it always elicits the same “the sky is falling” panic from corporate interests and their allies in Congress and conservative think tanks.  They issue their press releases and reports—indignant outrage on full display—about how the regulatory agenda supplies …

May 22, 2014 by Alexandra Klass
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Within the past month, two federal district courts—one in Colorado and one in Minnesota—have issued important decisions on the constitutionality of state clean energy policies. Both cases raised the same legal issue, namely, whether the state laws in question regulate extraterritorially in violation of the dormant Commerce Clause of the U.S. Constitution. But the courts reached different results in each case and, more importantly, the Minnesota and Colorado policies reviewed by each court were quite different from each other even though both involved efforts to promote clean energy within the state. Some of the recent commentary on the two cases has downplayed the significant differences between the two state policies in question, leading to confusion about the implications of the courts’ rulings.

First, a bit about the dormant Commerce Clause. The Commerce Clause of the U.S. Constitution grants Congress the authority to regulate …

May 22, 2014 by Rena Steinzor
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The federal regulatory system is in crisis. For the past several decades, a damaging set of mandates has continued to pile up on the books—mandates that threaten to stifle critical progress and undermine the nation’s ability to compete in the world economy. Even today, out-of-touch policymakers are attempting to add still more of these mandates, without regard to their direct, indirect, and cumulative costs to society. One might say that we are facing a tsunami, a flood, or even an avalanche of these mandates.

You’ve heard that sort of rhetoric before, I’m certain, deployed by opponents of various safeguards protecting consumers, workers, the environment, and more. But my diagnosis of the problem refers not to regulatory safeguards that agencies are, after all, obligated to issue as part of their statutory missions, but to the growing number of duplicative and utterly wasteful “lookback” or …

May 20, 2014 by James Goodwin
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Yesterday, CPR Member Scholars sent a letter to House Representatives about their concerns with Section 212 of H.R. 4413, the Consumer Protection and End-User Relief Act.  This provision would add a new Section 24 to the Commodity Exchange Act, establishing specific requirements for judicial review of rules adopted by the Commodity Futures Trading Commission (CFTC).  H.R. 4413 is on the short list for a floor vote in House.

As the letter explains, several aspects of Section 212 “raise significant problems.”  One provision would authorize courts reviewing CFTC rules to modify and enforce as modified those rules.  This is a huge departure from how judicial review of rules normally takes place, including judicial review carried out under the Administrative Procedure Act, which essentially authorizes a court to only affirm or set aside a rule in whole or in part. In other words, the Courts interpret laws …

May 20, 2014 by Amy Sinden
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The EPA issued its long-awaited cooling water rule yesterday and the score appears to be:  Industry – home run; Fish – zero.   Which is to say, it’s bad news not just for the fish but also for all of us who depend on the health of our aquatic ecosystems – which is to say, everyone.  

This is the rule that governs the design standards for the massive cooling water intakes at power plants and other large industrial facilities that withdraw billions of gallons of water a day from our rivers, lakes and estuaries. In the process, they kill billions of fish and other aquatic organisms.   Congress was aware of this problem when it passed the Clean Water Act in 1972 and so included language directing the EPA to require those structures to “reflect the best technology available BTA for minimizing adverse environmental impact.”  

When EPA finally got around to …

May 19, 2014 by Erin Kesler
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Today, the Seattle Times published an op-ed by CPR scholar and University of Seattle law professor Catherine O'Neill with University of Washington professor and public health officer Frank James entitled, "Protect water and health by updating state’s fish-consumption rate."

According to the piece:

GOV. Jay Inslee is currently considering how much fish Washingtonians may safely consume — a question that will, in turn, determine how protective our state’s water-quality standards should be.

As professionals who have worked for two decades with people impacted by contamination in our fish, we see this as a serious question.

Washington’s current water-quality standards permit people to safely eat just one fish meal a month. Those of us who eat more fish than this do so at our own peril.

Eating fish is the primary way that humans are exposed to polychlorinated biphenyls (better known as PCBs), mercury and …

May 16, 2014 by Erin Kesler
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Center for Progressive Reform Scholar Sidney Shapiro and Asbestos Disease Awareness Association President Linda Reinstein published a piece in Mint Press News on toxic chemical reform legislation.

They note:

Imagine a chemical that every public health organization in the United States and around the world knows to cause cancer and a host of other illnesses. You might think that such a chemical would probably be banned from commercial use in the United States, or at least not allowed to be used in a host of commercial products that people use every day. But think again.

According to the U.S. surgeon general, the World Health Organization and the U.S. Environmental Protection Agency, exposure to asbestos is unsafe at any level, but the substance still used in the U.S. in automobile brake pads, vinyl floor tiles and many other commercial goods. Despite its dangers, the EPA …

CPR HOMEPAGE
More on CPR's Work & Scholars.
May 30, 2014

D.C. Circuit Vacates FERC Smart Grid “Demand Response” Rule

May 29, 2014

CPR Scholar William Buzbee testifies at House Hearing on EPA's Waters of the US Rule

May 28, 2014

The EPA Addresses Residual Risk for Hazardous Air Emissions at Refineries

May 27, 2014

Regulatory Tsunami? What Regulatory Tsunami?

May 22, 2014

State Energy Policy and the Commerce Clause: Spotlight on Colorado and Minnesota

May 22, 2014

The Real

May 20, 2014

CPR Member Scholars to Congress: Judicial Review Provisions of CFTC Reauthorization Bill Need Another Look