WorkerSafetyCollage_wide.jpg
April 10, 2015 by Robert Glicksman

Defusing Blunderbuss Constitutional Attacks on EPA's Proposed Regulation of Existing Power Plants to Abate Climate Change

As climate scientists have been telling us for years, and as all but the most obstinate climate deniers acknowledge, greenhouse gas (GHG) emissions from the combustion of fossil fuels are contributing to climatic changes.  These changes have taken the form of melting ice sheets, rising sea levels, changes in wind and ocean current patterns, and increases in the frequency of severe weather events, to name but a few effects.  Rising temperatures linked to GHG emissions also exacerbate public health problems associated with the release of more conventional air pollutants, because temperature increases facilitate the formation of tropospheric ozone, which can cause breathing difficulties and cardiovascular problems.  It is not a stretch to characterize climate change as the most challenging environmental problem of our time.

Since taking office in 2009, the Obama Administration has taken important steps to reduce GHG emissions, both in the U.S. and through negotiations with foreign countries such as China.  These steps have included using the authority that Congress vested in the federal Environmental Protection Agency (EPA) under the Clean Air Act (CAA).  Although Congress enacted the CAA decades before human contributions to climate change were broadly recognized, Congress consciously provided EPA with a flexible mandate …

June 23, 2014 by Robert Glicksman
WorkerSafetyCollage_wide.jpg

Co-authored with David L. Markell.

Enforcement is widely acknowledged to be an indispensable feature of effective governance in the world of environmental protection and elsewhere. Unfortunately, criticisms of the U.S. government’s efforts to enforce the environmental laws began almost with the inception of the Environmental Protection Agency (EPA) more than forty years ago – and they continue virtually unabated today.

In a 2012 report, for example, the U.S. Government Accountability Office(GAO) noted that “EPA has reported that it is not achieving all of the environmental and public health benefits it expected . . . because of substantial rates of noncompliance.” Former EPA Administrator Lisa Jackson acknowledged in 2009 that “the level of significant non-compliance” with various Clean Water Act requirements had grown “unacceptably high.” Even EPA’s enforcement office has admitted significant shortcomings, noting that “violations are . . . too widespread, and enforcement too uneven.”

Assessments have found serious …

April 19, 2013 by Robert Glicksman
WorkerSafetyCollage_wide.jpg

Industries that discharge water pollution are required to abide by clean water laws and regulations that limit how much they can pollute the nation's rivers, lakes, streams, and other bodies of water. If they exceed their limits or fail to implement appropriate methods for controlling their pollution, they violate the law. Such violations should trigger appropriate sanctions to deter all regulated entities from committing future violations.

Unfortunately, polluters may weigh decisions about whether and how much to pollute from a dollars-and-cents perspective only, comparing the costs of compliance with the penalties to which they may be subject for exceeding applicable discharge limits. Such a comparison can make decisions about how much to pollute turn on a comparison of the bottom line on the corporate balance sheet with and without a violation, without any apparent recognition of the impact that pollution may have on the health of …

April 16, 2013 by Robert Glicksman
WorkerSafetyCollage_wide.jpg

Last week, CPR lost one its most dynamic scholars, Joe Feller, in a tragic accident. Joe was deservedly well known as a staunch and vigorous advocate on behalf of natural resource preservation, especially the public rangelands that he loved. Joe was not cut from the typical academic mold. Although he wrote frequently and with vision about subjects that included rangeland protection and water law issues, he was at least as comfortable leading environmental protection efforts in the agencies and the courts. Joe filed administrative protests and appeals, represented environmental interests in litigation in the federal courts, submitted comments on proposed agency decisions and rules, testified at public hearings and before legislative committees, and participated in collaborative problem-solving groups.  For example, he successfully litigated a path-breaking case requiring compliance with environmental laws in the renewal of grazing permits on federal public lands.  Joe’s contributions to CPR included …

Feb. 18, 2013 by Robert Glicksman
WorkerSafetyCollage_wide.jpg

Energy policy in the United States is inextricably linked with questions of environmental protection. Thus, for example, the Obama administration will soon be called upon to decide whether to approve the Keystone XL pipeline, how much (and what kind) of regulation to impose on hydraulic fracturing for natural gas extraction, whether to regulate carbon emissions from existing coal-burning power plants, what proportion of federally owned lands should be devoted to mineral extraction, and whether to allow the expansion of oil and gas drilling in northern Alaska. Each of those pending decisions will not only affect the mix of sources available to meet the nation’s energy needs, but will also have immense consequences for the nation’s environment and, indeed, for the future of our planet.

This link between energy policy and environmental protection is nothing new. It has been evident at least since the beginning of …

April 27, 2012 by Robert Glicksman
WorkerSafetyCollage_wide.jpg

The irony is palpable, though clearly intentional.  More than forty years ago, Congress kicked off the “environmental decade” by adopting the National Environmental Policy Act (NEPA).  NEPA’s goals are to ensure that federal agencies whose developmental missions often incline them to ignore or place a low priority on environmental protection to consider the possible adverse environmental consequences of major actions before committing to them, and to make the results of that evaluation publicly available.  NEPA sought to assure balanced consideration of the economic and social benefits of proposed agency actions that tended to be the focus of private proponents and the agencies themselves, and the environmental costs that previously had received short shrift.  Assessments of NEPA differ, but many environmental policy experts agree that the law has effectively forced agencies to look at possible adverse environmental consequences before they leap into project approval and implementation.  NEPA …

Oct. 15, 2009 by Robert Glicksman
WorkerSafetyCollage_wide.jpg

Just about a month ago, the New York Times published a story in which it documented an alarming failure on the part of federal and state officials to enforce the principal federal law designed to protect the quality of the nation’s surface waters, including rivers, lakes, and streams. According to that story, fewer than three percent of identified violations of the Clean Water Act result in fines or other significant punishments by state officials. These violations have the potential to threaten the health of people who use the affected waters drinking, swimming, fishing, and other purposes. Yet, the federal Environmental Protection Agency (EPA) has rarely stepped in to reclaim authority to administer the Act from states failing to fulfill their responsibilities to protect water quality through vigorous enforcement efforts.

EPA officials were well aware of these problems. This summer, less than six months after becoming President …

March 10, 2009 by Robert Glicksman
WorkerSafetyCollage_wide.jpg

(CPR Member Scholar Robert L. Glicksman replies below to CPR Member Scholar William Buzbee’s post on the Summers vs. Earth Island Institute decision.)

 

The decision in Summers represents the latest salvo in a continuing battle between those Supreme Court Justices who view the function of standing doctrine as ensuring that litigation before the federal courts is capable of being presented in an adversary context suitable for judicial resolution, and those who regard it as a fundamental bulwark against intrusion by the judicial branch on the prerogatives of the legislative and executive branches. As late as 1968, the Court remarked in a case called Flast v. Cohen that standing law “does not by its own force raise separation of powers problems related to improper judicial interference in areas committed to other branches of the Federal Government.” Justice Scalia, who wrote the majority opinion in Summers as well …

Nov. 14, 2008 by Robert Glicksman
WorkerSafetyCollage_wide.jpg

As President-elect Obama and his transition team begin planning to implement the new Administration’s agenda, a flood of policy proposals can be expected to compete for the President-elect’s attention. Proposals to deal with the nation’s economic crisis surely deserve to top the agenda. This week, CPR issued Protecting Public Health and the Environment by the Stroke of a Presidential Pen: Seven Executive Orders for the President’s First 100 Days, urging President Obama to take steps early in his presidency to secure vital protections for the public health and the nation’s environment.

 

In particular, the white paper recommends seven Executive Orders that President Obama can issue, refocusing federal policy without need of legislative approval. Each is directed at filling a gap in the nation’s health and environmental protection laws. The Executive Orders are at once symbolic and substantively powerful. Each would symbolize …

CPR HOMEPAGE
More on CPR's Work & Scholars.
Feb. 23, 2021

The Hill Op-ed: Biden Has the Power to Restore Good Governance

Dec. 17, 2020

Biden Nominated Deb Haaland to Lead the Department of the Interior. Here Are Five Top Priorities for the Agency.

Aug. 27, 2020

The Trump Administration's Latest Unconstitutional Power Grab

June 1, 2020

CPR Will Stand with Those Who Cannot Breathe

May 20, 2020

The Trump Administration's Pandemic Response is Structured to Fail

Jan. 21, 2020

Trump Is Trying to Cripple the Environment and Democracy

Oct. 22, 2019

How to Improve Allocations of Regulatory Authority