en-us 30 140 20 http://www.progressivereform.org http://www.progressivereform.org/imgs/printPageLogo.gif http://www.progressivereform.org/CPRBlog.cfm?idBlog=C264BE50-0647-1C3A-AEC26FF22E3BDB7D http://www.progressivereform.org/CPRBlog.cfm?idBlog=C264BE50-0647-1C3A-AEC26FF22E3BDB7D Mon, 20 May 2013 10:43:18 EST Reposted from LegalPlanet. People on both sides of the political spectrum agree that the boundaries of federal jurisdiction under the Clean Water Act are murky, to say the least. But efforts by EPA and the Corps of Engineers to clarify those boundaries have been tied up in the White House for more than a year, with no explanation and to no apparent useful purpose. The President is fond of telling that nation that it should place more trust in government. No wonder he's not convincing his political opponents - he doesn't appear to believe the message himself. The White House Office of Management and Budget has become a black hole not just for new regulations, but even for attempts to clarify existing law. It simply swallows proposals, leaving them forever in limbo, and forever subject to continued politicking. The Clean Water Act jurisdiction guidance surely isn't perfect, but that shouldn't be the test. EPA should be allowed to issue its guidance, and to correct it when and if experience shows that to be necessary. The jurisdictional issue has been problematic for a dozen years now. The law requires a permit for the addition of pollutants to "navigable waters," which it defines as "the waters of the United States." That seemed clear enough in 1985, when the Supreme Court decided U.S. v. Riverside Bayview Homes. At that point, most observers thought the Clean Water Act covered all waters constitutionally subject to federal authority, and that the Commerce Clause extended federal authority to the vast majority of the waters in the country. Federal jurisdiction was hardly ever in question. But then the underlying assumptions changed. In the late 1990s the Supreme Court indicated a renewed interest in establishing boundaries to federal Commerce Clause jurisdiction. And in 2001 in Solid Waste Agency of Northern Cook County v. US Army Corps of Engineers (SWANCC) the Court ruled that the Clean Water Act does not cover at least some "isolated" waters, but provided little guidance on where the jurisdictional line lies. The Court revisited that question in 2006 in Rapanos v. United States. Sean posted this explanation four years ago of the mess left by Rapanos. The short version is that no opinion commanded a majority of the Court. Four justices, led by Justice Scalia, would have limited federal jurisdiction to relatively permanent bodies of water connected to traditionally navigable waterways and wetlands with a continuous surface connection to jurisdictional waters. Four others would have deferred to the Corps of Engineers' broad reading. Justice Kennedy, writing only for himself, opined that jurisdiction over wetlands and waters that are not navigable in the traditional sense "depends upon the existence of a significant nexus" with navigable waters. Because Kennedy's was the swing vote, his "significant nexus" test has been seen as controlling by most courts and commenters. But that test is hardly self-explaining, and confusion remains over whether Scalia's "relatively permanent waters and adjacent wetlands" test is an alternative path to jurisdiction. Holly Doremus http://www.progressivereform.org/CPRBlog.cfm?idBlog=C264BE50-0647-1C3A-AEC26FF22E3BDB7D http://www.progressivereform.org/CPRBlog.cfm?idBlog=A8CFFD65-D3E7-CFCD-A1D24E1FA704F05F http://www.progressivereform.org/CPRBlog.cfm?idBlog=A8CFFD65-D3E7-CFCD-A1D24E1FA704F05F Wed, 15 May 2013 11:46:45 EST Reposted from Legal Planet. A couple of weeks ago, a major paper on the economics of government deficits turned out to have huge flaws. Matt Kahn and Jonathan Zasloff have already had something to say about this, but I'd like to add some thoughts about the implications for environmental issues."Interesting," you say, "But what does that have to do with the environment?" I see two big lessons. The first lesson is about the danger of overreacting to a dramatic research finding, especially when you really want to believe it because it confirms what you thought all along. The second lesson is about how little economists know about the functioning of the economic system as a whole, as compared with their understanding of how individual pieces of the economy work. This is really important for large-scale issues like climate change. I'd suggest use of the warning on the left by journals in the future. More about all of this after the jump. The paper in question purported to show that there's a kind of deficit cliff - when government debt hits 90% of GDP, the bottom drops out of economic growth. As a new paper showed, that finding had fatal flaws. Due to a spreadsheet error, five countries were left out of the analysis. Also, the results were pretty much driven by a single bad year in New Zealand, when government debt was very high and the economy was doing very badly. (This was partly because the researchers only included that one year out of New Zealand's history, maybe due to data availability, and also weighted each country equally no matter how many episodes of high debt they had or how they lasted). An additional problem is that the paper appeared in the American Economic Review, a very distinguished, peer-reviewed journal - but it turns out that the specific issue containing conference papers isn't peer-reviewed, unknown to many of us. Daniel Farber http://www.progressivereform.org/CPRBlog.cfm?idBlog=A8CFFD65-D3E7-CFCD-A1D24E1FA704F05F http://www.progressivereform.org/CPRBlog.cfm?idBlog=8FC038C7-FF03-A39A-9341DF385834DA65 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8FC038C7-FF03-A39A-9341DF385834DA65 Fri, 10 May 2013 14:42:36 EST Reposted from ACSBlog. "The easiest way to save money," President Obama declared in his 2012 State of the Union address, "is to waste less energy." In his 2013 State of the Union address, President Obama took another step and issued "a new goal for America": "let's cut in half the energy wasted by our homes and businesses over the next twenty years." The President also vowed that if Congress did not "act soon" to address climate change, he would "direct [his] Cabinet to come up with executive actions we can take, now and in the future, to reduce pollution, prepare our communities for the consequences of climate change, and speed the transition to more sustainable sources of energy." Such welcome sentiments! So sensible and right and good! But here is a puzzling fact: at the same moment President Obama was uttering these wise and welcome remarks, his White House was blocking rules to promote the very energy efficiency he was extolling. Far from urging the Cabinet to come up with executive actions on climate, his own White House was blocking his Cabinet from taking executive actions on climate. That situation persists to this day. To understand this rather startling state of affairs, we need some background about how the regulatory system works today. Congress has passed laws to increase in many different respects the energy efficiency of the "homes and businesses" the President talked about. Like most complicated contemporary laws, the laws on energy efficiency are implemented by an administrative agency, in this case the Department of Energy (DOE). DOE writes rules that take the basic mandates given by Congress and give them shape; the agency specifies, for example, just how efficient new refrigerators and microwaves and lamps and buildings must be to meet Congress's requirements. Once DOE writes a rule, however, it does not simply issue it. Instead, the rule must first pass through a White House office that oversees the federal rulemaking process - the Office of Information and Regulatory Affairs, or OIRA. Under executive orders reaffirmed or issued by President Obama, no rule deemed significant by OIRA can be issued without OIRA's approval. In the Obama administration, moreover, OIRA has increasingly become simply a portal into the political machinery of the larger White House. Rules go to OIRA and, from there, to the Domestic Policy Council, the White House economic offices, the White House Chief of Staff, even sometimes the President himself. (The former head of OIRA in this administration, Harvard law professor Cass Sunstein, documents (and lauds) this new reality in his recent book, Simpler: The Future of Government.) Lisa Heinzerling http://www.progressivereform.org/CPRBlog.cfm?idBlog=8FC038C7-FF03-A39A-9341DF385834DA65 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8A4D0056-F44D-3F69-3E8574732631EDA7 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8A4D0056-F44D-3F69-3E8574732631EDA7 Thu, 9 May 2013 13:19:14 EST Today's move by Senate Republicans to boycott a committee confirmation vote on Gina McCarthy to lead the EPA is just another in a series of shameless tactics aimed at hampering the Environmental Protection Agency and preventing it from doing the people's business. The list includes endless filibusters; sequester cuts that make it harder to enforce existing laws; a host of attacks on specific environmental regulations under the Clean Air Act, Clean Water Act and other statutes addressing critical environmental issues; and wholesale assaults on the regulatory process. To that undistinguished list, we can now add "taking their marbles and going home," rather than voting on a presidential nominee to lead the EPA. Rena Steinzor http://www.progressivereform.org/CPRBlog.cfm?idBlog=8A4D0056-F44D-3F69-3E8574732631EDA7 http://www.progressivereform.org/CPRBlog.cfm?idBlog=84B0D159-00C6-7A8A-821A84ED9A53D238 http://www.progressivereform.org/CPRBlog.cfm?idBlog=84B0D159-00C6-7A8A-821A84ED9A53D238 Wed, 8 May 2013 11:09:58 EST CPR's Lisa Heinzerling has an article in the most recent issue of the Pace Environmental Law Review, Inside EPA: A Former Insider's Reflections on the Relationship between the Obama EPA and the Obama White House, in which she discusses the ways that the White House Office of Information and Regulatory Affairs (OIRA) under Cass Sustein exercised control over EPA's regulatory process. She writes that, using cost-benefit analysis as a point of access, OIRA departs considerably from the structure created by the executive orders governing OIRA's process of regulatory review. The distribution of decision-making authority is ad hoc and chaotic rather than predictable and ordered; the rules reviewed are mostly not economically significant but rather, in many cases, are merely of special interest to OIRA staffers; rules fail OIRA review for a variety of reasons, some extra-legal and some simply mysterious; there are no longer any meaningful deadlines for OIRA review; and OIRA does not follow - or allow agencies to follow - most of the transparency requirements of the relevant executive order. Describing the OIRA process as it actually operates today goes a long way toward previewing the substantive problems with it. The process is utterly opaque. It rests on assertions of decision-making authority that are inconsistent with the statutes the agencies administer. The process diffuses power to such an extent - acceding, depending on the situation, to the views of other Cabinet officers, career staff in other agencies, White House economic offices, members of Congress, the White House Chief of Staff, OIRA career staff, and many more - that at the end of the day no one is accountable for the results it demands (or blocks, in the case of the many rules stalled at OIRA). And, through it all, environmental rules are especially hard hit, from the number of such rules reviewed to the scrutiny they receive to the changes they suffer in the course of the process. All in all, it is a stinging indictment, offered by a scholar who experienced the relationship between OIRA and the EPA for herself. Matt Freeman http://www.progressivereform.org/CPRBlog.cfm?idBlog=84B0D159-00C6-7A8A-821A84ED9A53D238 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7AAD374B-9217-7734-FFFC0D424748995D http://www.progressivereform.org/CPRBlog.cfm?idBlog=7AAD374B-9217-7734-FFFC0D424748995D Mon, 6 May 2013 12:29:47 EST Last week, CPR's Tom McGarity had a column in the Christian Science Monitor, describing the ways that the political right's war on regulation and enforcement helped contribute to the West, Texas, fertilizer plant explosion last month. Today, he's got a separate piece in the Dallas Morning News (and this past Friday, it was in the Houston Chronicle) taking a look at the Texas legislature's response to the disaster. In the piece, McGarity takes a state legislator to task for declaring - even while the investigation into the West disaster is still ongoing - that "'the state of Texas is in good shape' when it comes to regulatory programs designed to protect its residents from future explosions. Therefore, he didn't see the need for 'any major changes.'" McGarity notes that Texas doesn't even have an occupational safety and health entity that might have inspected the plant. Had it, he writes, its concern for worker safety would have alerted it to the risks posed by the ammonium nitrate. And the steps taken to reduce those risks would have protected the entire community of West, not just the workers. When it comes to protecting public health and safety from threats posed by unsafe fertilizer plants in rural areas and equally dangerous industrial operations in major cities, Texas politicians have adopted a Wild West attitude that gives Texas businesses great freedom to innovate and grow the economy. But the Legislature and the governor have been less concerned about ensuring that these companies exercise that freedom in a responsible manner and are held accountable when they don't. It's well worth the read. Matt Freeman http://www.progressivereform.org/CPRBlog.cfm?idBlog=7AAD374B-9217-7734-FFFC0D424748995D http://www.progressivereform.org/CPRBlog.cfm?idBlog=6737A8F4-91EC-A1A0-EC69302F4B92E140 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6737A8F4-91EC-A1A0-EC69302F4B92E140 Fri, 3 May 2013 07:48:36 EST Just days before The Washington Post's Kimberly Kindy published her eye-opening story of chemical showers in chicken processing plants and the untimely death of a federal food safety inspector, OSHA announced fines totaling $58,775 in a case involving a worker fatality at another chicken processing plant - this one in Canton, Georgia. According to OSHA's press release, the worker "became caught in an unguarded hopper while attempting to remove a piece of cardboard." The agency does not typically release the full details of an investigation until it is "closed" by virtue of penalties being paid, a settlement, or a court decision, so we'll only be able to glean the basics of this tragic incident from the public inspection file and press release, for now. But the basics tell a troubling story. OSHA cited Pilgrim's Pride, which boasts billions of dollars in chicken sales annually and employs about 38,000 workers, for violating rules that embody some of the most basic safety principles, like the need to have controls in place to prevent life-threatening machinery from starting up while a worker is servicing it. What's worse, the citation for failing to have procedures in place to control "potentially hazardous energy" has been classified as a "repeat" violation because the plant was cited for similar violations just two years ago. And yet the U.S. Department of Agriculture (USDA) has proposed to give this plant and others like it significantly more leeway to lower their production costs at the expense of providing safe workplaces. USDA's proposed revisions to poultry slaughter inspections will allow plants to speed up their processing lines in a way that poses serious threats to workers' health and safety. Musculoskeletal problems are already rampant in these factories as a result of repetitive motion and awkward positions. But speeding up the lines, which will decrease processing costs by about three pennies per chicken (a cumulative profit totaling millions of dollars per year), is the incentive that USDA is giving to Pilgrim's Pride and other processors to get them to make the capital investments necessary to adopt a new inspection system. That extra profit will be earned on the backs (and shoulders and wrists) of the workers who will have to cope with dizzying new line speeds. Matt Shudtz http://www.progressivereform.org/CPRBlog.cfm?idBlog=6737A8F4-91EC-A1A0-EC69302F4B92E140 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5ABE694C-B156-EFDB-AE0A194C49D1A457 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5ABE694C-B156-EFDB-AE0A194C49D1A457 Tue, 30 Apr 2013 07:40:48 EST See the UPDATE at the bottom of the page. Last Thursday, President Obama named Howard Shelanski as his new nominee for Administrator of the Office of Information and Regulatory Affairs (OIRA). As of that evening, Shelanski was listed on the website of the industry-funded, fiercely anti-regulatory Mercatus Center as an "expert" in its Technology Policy Program. OIRA has long operated as a regulatory chokepoint, stalling and weakening health and environmental safeguards at the behest of industry groups, and as I've written, the protection of the public will require the next Administrator to work hard to transform OIRA's role. Although much research remains to be done on Shelanski's record, his association with Mercatus raised serious concerns about whether he could be the person to bring that fundamental change to OIRA. (In fact, it brought back memories of George W. Bush, who culled his second OIRA Administrator, Susan Dudley, from Mercatus's ranks.) I pointed the Mercatus connection out in a blog the morning after his nomination. By Friday afternoon, without any explanation, Shelanski's name had been quietly removed from Mercatus' list of experts. (Here's Google's cached version (in pdf form) from April 11, 2013 showing Shelanski's name; here's the same page still available on the web as of this morning; and here's the Shelanski-less version of the page as it looks today on the Mercatus website.) So, questions arise: Did Mercatus take his name off its list of scholars at Shelanski's request, or on their own initiative? Was Mercatus somehow mistaken about who its own scholars were? The answers to those questions, if we ever get them, will give us a better idea whether Mercatus somehow over-reached when it listed him as one of their scholars, or - what's more concerning - whether there was some relationship that Shelanski, Mercatus, or both now would rather hide from view. UPDATE: A few hours after this was posted, Benjamin Goad of The Hill put these questions to Mercatus spokesperson Leigh Harrington, who said that Shelanski's name was incorrectly added to the Mercatus website's list of Technology Experts. According to Goad's article, Harrington maintained that (quoting the article) "Shelanski should have been listed among the ranks of speakers who have participated in Mercatus programs, but was 'incorrectly categorized' as an expert. 'We fixed the error once it was pointed out to us,' Harrington said." Rena Steinzor http://www.progressivereform.org/CPRBlog.cfm?idBlog=5ABE694C-B156-EFDB-AE0A194C49D1A457 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5BA3D8A1-D8BC-18D4-6E3448B133ACE8FC http://www.progressivereform.org/CPRBlog.cfm?idBlog=5BA3D8A1-D8BC-18D4-6E3448B133ACE8FC Tue, 30 Apr 2013 11:51:19 EST Reposted from RegBlog. In his revealing new book about his nearly four years as President Barack Obama's "regulatory czar," Harvard Law School professor Cass Sunstein describes a striking moment: "After I had been in the job for a few years, a Cabinet member showed up at my office and told my chief of staff, 'I work for Cass Sunstein.' Of course that wasn't true - but still." But still, indeed. Sunstein's book, Simpler: The Future of Government, makes clear just how much power the Administrator of the Office of Information and Regulatory Affairs (OIRA) wields in this administration. As I have written elsewhere, Sunstein informs us that, as OIRA Administrator, he had the power to "say no to members of the president's Cabinet;" to deposit "highly touted rules, beloved by regulators, onto the shit list;" to make sure that some rules "never saw the light of day;" to impose cost-benefit analysis "wherever the law allowed"; and to transform cost-benefit analysis from an analytical tool into a "rule of decision," meaning that "[a]gencies could not go forward" if their rules flunked OIRA's cost-benefit test. As Sunstein's statements attest, the person who leads OIRA is, in the rulemaking domain, effectively the boss of members of the President's Cabinet. The head of OIRA determines which rules go to OIRA, what changes the rules will undergo before issuance, and indeed whether some rules will be issued at all. Rules that make OIRA's "shit list," to use Sunstein's term, simply stay at OIRA indefinitely. Twenty-four of the 149 rules under review as of April 26, 2013, have been at OIRA since 2011. Three rules have been there since 2010. Three important rules on food safety, required by legislation signed into law by President Obama himself, have been trapped at OIRA for many months. A whole group of energy efficiency rules has languished at OIRA for years. None of these rules will see the light of day without OIRA's say-so. It is a matter of some importance, then, to know who is running OIRA now that Sunstein has left. By law, the Administrator of OIRA must be nominated by the President and confirmed by the Senate. Since last August, when Sunstein returned to Harvard, OIRA has lacked a confirmed administrator. For several months after Sunstein's departure, Obama appointee Boris Bershteyn served as acting administrator of OIRA. But because no one was nominated for the position within 210 days of Bershteyn beginning his service as acting administrator, the Federal Vacancies Reform Act of 1998 prevented him from serving any longer. Since mid-March, therefore, Dominic Mancini - a career economist at OIRA - has been leading OIRA. One might imagine that a career civil servant operating out of an obscure White House office would give a great measure of deference to rules forwarded by the heads of agencies, who were nominated by the President and confirmed by the Senate. But, it appears, one would be wrong. Lisa Heinzerling http://www.progressivereform.org/CPRBlog.cfm?idBlog=5BA3D8A1-D8BC-18D4-6E3448B133ACE8FC http://www.progressivereform.org/CPRBlog.cfm?idBlog=56F2A0E1-A3CA-63DD-1A072E9A1FDE3FA1 http://www.progressivereform.org/CPRBlog.cfm?idBlog=56F2A0E1-A3CA-63DD-1A072E9A1FDE3FA1 Mon, 29 Apr 2013 13:59:26 EST CPR's Tom McGarity has an op-ed in this morning's Christian Science Monitor describing the regulatory environment in which that West, Texas, fertilizer plant came to have a large stockpile of explosive material while operating with little or no oversight from state or federal authorities. An April 17 explosion at the plant claimed at least 15 lives and destroyed several hundred homes. McGarity notes that Texas has no state program for occupational health and safety, so leaves such matters to the federal Occupational Safety and Health Administration (OSHA). But with its tiny staff of inspectors (2,400 in all), OSHA's its resources are stretched so thin that it has inspected the plant just once -- in the mid-1980s. Similarly, the Environmental Protection Agency (EPA) has insufficient staff to inspect more than once a decade. Meanwhile the Texas Commission on Environmental Quality is so small, it can only respond to complaints. He writes: These regulatory agencies are supposed to be protecting the public from the risks posed by unsafe workplaces, releases of toxic pollutants, and catastrophic explosions. Yet their failure to focus on the risks posed by the West Fertilizer Company is not atypical. We saw similar failures with the 2005 Texas City refinery explosion (15 workers killed, 170 injured), the 2008 explosion at the Dixie Crystal sugar refinery in Georgia (14 workers killed), and the 2008 explosion at a Bayer CropScience chemical plant in West Virginia (two workers killed). This lack of attention to the safety of our workplaces and neighborhoods is no accident. It is the product of a concerted attack by the US Chamber of Commerce, industry trade associations, and conservative think tanks on what they see as onerous regulatory programs - but ones that were enacted by Congress over the years to protect the public from irresponsible corporate misconduct. Matt Freeman http://www.progressivereform.org/CPRBlog.cfm?idBlog=56F2A0E1-A3CA-63DD-1A072E9A1FDE3FA1 http://www.progressivereform.org/CPRBlog.cfm?idBlog=46F29EC9-DCAA-C616-0E6A1E0B1C1175FA http://www.progressivereform.org/CPRBlog.cfm?idBlog=46F29EC9-DCAA-C616-0E6A1E0B1C1175FA Fri, 26 Apr 2013 11:26:06 EST A few months ago, I urged the Obama Administration to view the nomination of a second-term Administrator of the Office of Information and Regulatory Affairs (OIRA) as an opportunity to fundamentally change the role that the office plays in the regulatory system. Dozens of important rules got stuck at OIRA in the year before the presidential elections and are still languishing. House Republicans continue their blistering and unsubstantiated attacks on the agencies, doing everything they can to cut their budgets beyond the bone, while the Obama Administration does nothing to rebut these tirades. And most agencies at the federal, state, and local levels are on life support, unable to prevent, much less mitigate a series of deadly fiascos. As just two very recent examples: consider the explosion at a West Texas fertilizer factory that claimed 15 lives several days ago, catching emergency response crews at their most vulnerable, and yesterday's front page story in the Washington Post about a rule that would gravely endanger worker and consumer safety at poultry processing plants. The job of the next "regulatory czar" won't be easy unless he conceives of it as a continuation of the first Obama term's "rule busting" that placates dangerous industries at the expense of public health. Late yesterday, President Obama announced the nomination of Howard Shelanski, a current Federal Trade Commission official (FTC), to be the agent of change that OIRA so desperately needs. We'll certainly take a close look at his record in the days ahead, but one thing is certain: The Senate will need to conduct a thorough and searching confirmation process, one aimed at ensuring that OIRA stops being the place where badly needed safeguards for health, safety and the environment go to die. Dr. Shelanski has spent his career working in the arenas of antitrust and telecommunications, two specialties far removed from the core of OIRA oversight that is most controversial. Hopefully, this background means he will approach health and safety issues with an open mind. On the other hand, Dr. Shelanski is also listed as an "expert" in the Mercatus Center's Technology Policy Program. (His Mercatus Center bio is here.) The Mercatus Center is an industry-funded think tank and is well known for strongly advocating for anti-regulatory policies, indicating that in his new position, he must work especially hard to consider divergent views.* Dr. Shelanski's nomination will come before the Senate Committee on Homeland Security and Government Affairs. The members of that committee must take that opportunity to ask him tough questions. For example, as OIRA Administrator, will Dr. Shelanski see it as job to advance the public interest or to appease regulated industries? Who does Dr. Shelanski think should be in charge of the substance of EPA's regulatory decision-making: the EPA Administrator or the OIRA Administrator? When it comes to agency decision-making, will OIRA continue to insist on substituting biased cost-benefit analyses for the impact analyses specified in statute? Will Dr. Shelanski abide by the transparency requirements imposed on OIRA by Executive Order 12866? Will he encourage agencies to follow the Order's transparency requirements as well? Finally, will Dr. Shelanski respect the clear 90-day time limits that Executive Order 12866 places on regulatory review? We look forward to meeting Dr. Shelanski and doing our best to persuade him that a fundamental course correction at OIRA is vital. Without one, there will be more grim funeral services honoring lives lost unnecessarily in industrial catastrophes that escape a badly shredded safety net. Rena Steinzor http://www.progressivereform.org/CPRBlog.cfm?idBlog=46F29EC9-DCAA-C616-0E6A1E0B1C1175FA http://www.progressivereform.org/CPRBlog.cfm?idBlog=3CEEAE90-0BE5-858E-D0E602CD58FD0F6B http://www.progressivereform.org/CPRBlog.cfm?idBlog=3CEEAE90-0BE5-858E-D0E602CD58FD0F6B Wed, 24 Apr 2013 12:44:57 EST Reposted from Legal Planet, by permisison. There are a lot of things to disagree about in terms of energy policy. One thing that ought to be common ground, as discussed in a Washington Post column, is increased research in energy R&D. As this chart shows, federal support for energy R&D is smaller than it was under Ronald Reagan: The economic argument for supporting R&D is simple. Private firms don't have enough of an incentive to engage in basic research because intellectual property law doesn't allow them to capture the full benefits of the resource. For that reason, government support for the research is necessary. Moreover, really new ideas have a high risk factor that may make them unattractive to private investors (a problem addressed by the ARPA-E program.) Daniel Farber http://www.progressivereform.org/CPRBlog.cfm?idBlog=3CEEAE90-0BE5-858E-D0E602CD58FD0F6B http://www.progressivereform.org/CPRBlog.cfm?idBlog=385C9816-98C0-D112-ABE613723FAEA822 http://www.progressivereform.org/CPRBlog.cfm?idBlog=385C9816-98C0-D112-ABE613723FAEA822 Tue, 23 Apr 2013 15:26:46 EST Monday was the deadline for public comment on the State Department's draft Environmental Impact Statement (EIS) on the Keystone XL Pipeline. Mine, which I submitted with the support of two of my University of Nebraska colleagues, are here. The State Department had initially announced that it would take the unusual path of refusing to make all of the comments available to the public absent a Freedom of Information Act request, but after a storm of criticism, the Department has reversed its decision to play hide and seek and now promises to post them all on a website. Meanwhile, the Environmental Protection Agency has released its comments, which are extremely critical of the State Department's analysis of the project's effect on climate change and its failure to consider alternative pipeline routes that avoid critical water resources. The EPA's comments, together with the outpouring of opposition from environmentalists and others, could well carry the day on the merits, persuading the President to reject the project as contrary to the national interest. At minimum, they will serve as fodder for subsequent litigation against the construction of the pipeline, if it's approved. The EPA is hardly alone in its criticism. In my comments, I focused on several problems with the State Department's analysis. I write that the draft EIS failed to comply with the requirements of the National Environmental Policy Act (NEPA), a law that requires federal agencies to evaluate the harmful environmental consequences of their actions and to consider ways to carry out those actions so that they mitigate or avoid such consequences. Sandra Zellmer http://www.progressivereform.org/CPRBlog.cfm?idBlog=385C9816-98C0-D112-ABE613723FAEA822 http://www.progressivereform.org/CPRBlog.cfm?idBlog=225B214A-B7B5-401A-372F9EE967F2A21C http://www.progressivereform.org/CPRBlog.cfm?idBlog=225B214A-B7B5-401A-372F9EE967F2A21C Fri, 19 Apr 2013 08:59:09 EST On Wednesday, the Supreme Court ended a generation of human rights litigation in the United States by holding, in Kiobel v. Royal Dutch Petroleum, that the Alien Tort Statute (ATS) does not apply to actions occurring in foreign countries. The ATS allows plaintiffs to sue in federal courts for torts committed in violation of international law and, since 1980, plaintiffs have used it for claims of grave human rights violations, such as torture, crimes against humanity, extrajudicial killing, and even genocide, arising in other countries. Now it appears that the federal courts will be closed to such claims. In recent years, plaintiffs had brought a series of cases against corporations that accused them of complicity in human rights abuses. Many of those claims were against corporations exploiting natural resources in developing countries. For example, Kiobel arose from Shell's decades-long presence in the Niger Delta. In the 1990s, in response to protests by the Ogoni people about the environmental harm caused by oil extraction, Nigeria cracked down, destroying villages, arresting dissidents, and, in 1995, executing nine Ogoni leaders, including Ken Saro-Wiwa. Members of the Ogoni, including Esther Kiobel, the widow of one of the executed men, sued Shell in U.S. federal court, claiming that it aided and abetted the Nigerian government in its human rights abuses. In 2010, the Second Circuit rejected their suit on the ground that corporations cannot be responsible for violations of international law. Other circuit courts, including the D.C. and Seventh, disagreed, and the Supreme Court granted cert. At oral argument in 2011, however, the justices asked most of their questions about another possible ground of dismissal, based on the presumption against extraterritorial application of federal law. They asked the parties to reargue the case to address that issue. This week the Court issued its decision on that ground. By the usual 5-4 majority, the Court said that the presumption against extraterritoriality applied and that the ATS showed no evidence that Congress intended to overcome the presumption. There are quite a few problems with this interpretation, as bloggers at Opinio Jurishave been pointing out. In no particular order: John Knox http://www.progressivereform.org/CPRBlog.cfm?idBlog=225B214A-B7B5-401A-372F9EE967F2A21C http://www.progressivereform.org/CPRBlog.cfm?idBlog=1D9DA89C-FFDE-70AA-A2D37EB3702640F6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1D9DA89C-FFDE-70AA-A2D37EB3702640F6 Fri, 19 Apr 2013 08:00:00 EST 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 others or the social responsibility to abide by legal mandates. That's precisely why strict regulation of polluting industries is necessary. More specifically, it's why there should be no question that the cost of violating the law will exceed the avoided costs of compliance that result from a decision not to abide by applicable discharge limits. The penalties for violating environmental laws such as the Clean Water Act should provide ample economic disincentive to violate the law - the penalties must be high enough that regulated businesses that make decision about whether to pollute based purely on the bottom line will find no profit from polluting. Today, CPR releases No Profit in Pollution: A Comparison of Key Chesapeake Bay State Water Pollution Penalty Policies (CPR Briefing Paper 1305), which examines the component of clean water enforcement penalty policy that is aimed at ensuring that polluters do not profit from their bad behavior. The paper focuses on what is known formally as the "economic benefit of noncompliance (EBN)." We look at the penalty policies of three key Chesapeake Bay states, Maryland, Pennsylvania, and Virginia, to examine the rigor of their penalty policies and practices concerning the EBN penalty component. Using the EPA's policies and frameworks as the comparative standard, we review the clean water statutory and regulatory frameworks in these three states to determine the answers to the following questions: Robert Glicksman http://www.progressivereform.org/CPRBlog.cfm?idBlog=1D9DA89C-FFDE-70AA-A2D37EB3702640F6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=19BBF6A1-F202-D3BE-E852FF1E9B037F35 http://www.progressivereform.org/CPRBlog.cfm?idBlog=19BBF6A1-F202-D3BE-E852FF1E9B037F35 Wed, 17 Apr 2013 16:42:46 EST The following is reposted from the Environmental Law Prof Blog. The electric utility industry often complains that renewable energy proponents don't pay enough attention to the intermittency of renewable resources. A common refrain is "the sun doesn't always shine and the wind doesn't always blow." The industry then reminds us that, for a reliable electricity grid, supply and demand must be in balance at all times. The implication is that this will be impossible if we rely heavily on renewable energy. A new report published by the Civil Society Institute models a year 2050 scenario in which renewable energy is used to generate about half of all electricity in the US, and the lights still reliably come on. In the scenario, about 22% of demand is met by solar (almost all PV), 16% by wind, 8% by hydro, and 5% by biomass. The rest is supplied primarily by natural gas and nuclear energy. The scenario includes no coal-fired generation. The authors explain that the intermittency problem of solar and wind is greatly reduced when you consider generation on a regional rather than local scale. Also, weatherpeople are actually pretty good at forecasting available solar resources (i.e. cloud cover) and wind resources (i.e. wind speed) on the time scale that's needed for sophisticated grid operators to balance supply and demand - namely, several hours ahead of time. It also helps that as a general matter, solar electricity is most plentiful and reliable when we most use electricity: during daylight hours. To the extent that disparities between energy supply and demand occur in the 2050 scenario, the report shows that reliability can be achieved using interregional transfers of electricity, energy storage, demand response, and other available approaches. So it seems we can build electric power systems that bank on the reliability of the sun and the wind. A new refrain could be "the sun'll come out tomorrow, bet your bottom dollar that tomorrow, there'll be sun!" and we can recall that our forebears didn't name places Windy Mountain, Windy Plains, and the Windy City for nothing. Lesley McAllister http://www.progressivereform.org/CPRBlog.cfm?idBlog=19BBF6A1-F202-D3BE-E852FF1E9B037F35 http://www.progressivereform.org/CPRBlog.cfm?idBlog=187F46EA-99D4-0640-3AD9E86CD12E7B2B http://www.progressivereform.org/CPRBlog.cfm?idBlog=187F46EA-99D4-0640-3AD9E86CD12E7B2B Wed, 17 Apr 2013 10:56:59 EST In the decades since Congress and state legislatures passed most of the nation's most significant environmental laws, our knowledge about ecosystems has increased dramatically. We know much more about the "goods and services" that ecosystems provide - more, for example, about the migratory species that sustain agriculture by functioning as pollinators, and more about how healthy ecosystems help to filter and clean our water. But our policymakers haven't yet taken advantage of much of that new knowledge. As ecologists learn more about the complex and dynamic interactions that produce these valuable services, decisionmakers and advocates should adopt an ecosystem services approach to implementing laws that affect the environment. Such an approach to environmental protection focuses policy and decisionmaking on restoring and maintaining the natural infrastructure and resources that the public values. It combines scientific assessment tools to understand both our dependence and impacts on ecosystems and public participation to identify the most important services. The approach sets goals for environmental protection and helps direct policymakers and natural resource managers to identify and apply the legal, regulatory, and market-based tools to achieve them. An ecosystem services approach integrates advances in ecology with the law. It also fosters creative thinking about how to restructure laws and regulatory programs to mimic the connectedness of ecosystem functions. The approach requires performance-based evaluations to measure success or failure of management decisions, and it depends on public participation to prioritize those services that the public values most, thus ensuring long-term public support for and investment in achieving the identified goals. Yee Huang http://www.progressivereform.org/CPRBlog.cfm?idBlog=187F46EA-99D4-0640-3AD9E86CD12E7B2B http://www.progressivereform.org/CPRBlog.cfm?idBlog=14198B12-A3F5-9B07-3404D52F1A54C5A8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=14198B12-A3F5-9B07-3404D52F1A54C5A8 Tue, 16 Apr 2013 14:27:17 EST 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 efforts to facilitate grazing law reform, http://www.progressivereform.org/perspLivestock.cfm. Joe brought to these endeavors interdisciplinary skills that most legal academics lack. He earned a Ph.D. in physics from the University of California at Berkeley and was an Assistant Professor of Physics at Columbia University. Before beginning his legal academic career, he worked in the Office of General Counsel of EPA, serving as the principal attorney for promulgation of the national ambient air quality standards for particulate matter in the 1980s. Those who knew Joe, however, understand that a recitation of his many notable accomplishments does not come close to capturing what made him beloved by his friends, colleagues, and students. Joe was irreverent. He had a wicked sense of humor. He was incredibly quick and insightful. He let you know where he stood, but was not overbearing. A gathering that included Joe Feller was never dull. He had a knack for cutting to the chase by posing questions and making arguments that reflected his fervor for the legal and policy issues on which he engaged, but that also sparked debate and new insights among others. Joe's passing leaves a large hole. Those of us who shared a meal, hiked a trail, took a run, or attended a conference with Joe will sorely miss his humor, optimism, and high spirits, but we will treasure the memories of these experiences. Much of what was special about Joe is captured in tributes that others have already written, including blogs by Holly Doremus, another CPR scholar, http://legalplanet.wordpress.com/2013/04/09/in-memoriam-joe-feller-much-more-than-a-law-professor/, by Joe's colleagues at ASU, http://www.indisputably.org/?p=4615, and by other legal scholars, http://lsolum.typepad.com/legaltheory/2013/04/joseph-feller.html. A scholarship fund has been established at the Sandra Day O'Connor College of Law at Arizona State University, where Joe taught for 25 years, www.asufoundation.org/feller. A collection of Joe's photos of the landscapes he so loved and fought so hard to protect can be found here, http://picasaweb.google.com/109546365407066839141. Robert Glicksman http://www.progressivereform.org/CPRBlog.cfm?idBlog=14198B12-A3F5-9B07-3404D52F1A54C5A8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FE142DE1-DAB7-E69F-4EAE00FDA0C9C3F0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FE142DE1-DAB7-E69F-4EAE00FDA0C9C3F0 Fri, 12 Apr 2013 07:49:44 EST This morning, CPR President Rena Steinzor will testify before the House Energy and Commerce Committee about the proposed Energy Consumers Relief Act of 2013 (ECRA), yet another in a series of bills from House Republicans aimed at blocking federal regulatory agencies from fully implementing the nation's health and safety laws - in this case such landmark legislation as the Clean Air Act, and any other law enforced by the Environmental Protection Agency that is in any sense "energy-related." Here's the nut paragraph of the bill: Notwithstanding any other provision of law, the Administrator of the Environmental Protection Agency may not promulgate as final an energy-related rule that is estimated to cost more than $1 billion if the Secretary of Energy determines under Section 3(3) [of ECRA] that, with respect to the rule, significant adverse effects to the economy will be caused. In other words, the Secretary of Energy would have veto power over EPA. Here's Steinzor's description of the proposal: The ECRA is nothing more - and certainly nothing less - than yet another attempt by certain Members of Congress to shield some of the wealthiest and most heavily subsidized corporations in history from the relatively modest financial costs associated with carrying out their businesses in a manner that does not place people and the environment at unreasonable risk of harm. Matt Freeman http://www.progressivereform.org/CPRBlog.cfm?idBlog=FE142DE1-DAB7-E69F-4EAE00FDA0C9C3F0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F4C07E09-0681-C383-9E4304787CF61EC0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F4C07E09-0681-C383-9E4304787CF61EC0 Wed, 10 Apr 2013 12:21:38 EST For more than a year now, food safety and worker safety advocates have been fighting a proposal out of USDA's Food Safety Inspection Service that would pull most government inspectors off poultry slaughter lines in favor of potentially un-trained company inspectors, speed up the lines, and allow companies to use additional antimicrobial chemicals to cover up expected increases in contamination. Today, President Obama released a proposed budget that indicates USDA's proposal will be finalized before the start of FY2014 (see pages 86-87) - a rebuke to advocates who have made a strong case against the USDA proposal. As we've noted before, The proposed rule is bad for food safety. USDA has tried out pilot programs that allowed poultry slaughterhouses to speed up their lines and move government inspectors off those lines. Food & Water Watch obtained compliance records and found troubling results, including that bile, sores, scabs, feathers, and digestive tract tissue are often not being properly removed from chicken carcasses. The proposed rule is bad for workers in the plants. As the lines speed up, so does the pace of work at the "live hang" and "rehang" stations. Fast and repetitive motions are a serious ergonomic hazard that will only be exacerbated as line speeds increase. Workers who will be saddled with the responsibility of doing the visual food safety inspections currently conducted by government inspectors are also being set up for retaliation by their employers if their inspections cut into processing speeds or profits. The proposed rule will pollute local waterways, an issue first noted here in this space yesterday. As companies speed up their lines and lose government inspectors, fecal contamination and other microbial problems are expected to crop up more often. So poultry plants are expected to increase their reliance on something called "online reprocessing" (OLR), where all carcasses, visually contaminated or not, pass through automatic sprayers on the line that drench them with large amounts of antimicrobial chemicals like chlorine and trisodium phosphate (imagine a car wash ... but for chickens). Existing regulations and water permit programs are not equipped to handle large increases in the chemicals used in OLR. USDA has failed to account for the true costs of the proposal. USDA failed to properly account for the food safety, worker safety, and environmental costs of this proposal. The President's budget suggests that most of these concerns, raised by a broad coalition of the public interest community, have been ignored in a headlong rush to finalize a rule that officials believe will save a few million dollars in USDA's multi-billion dollar budget (as well as save money for poultry processing companies). Yet, some hope remains that the rule is not written in stone. The President's proposed FY2013 budget also assumed that the rule would be finalized before USDA's budget was set. That did not happen, and it shouldn't this time, either. Matt Shudtz http://www.progressivereform.org/CPRBlog.cfm?idBlog=F4C07E09-0681-C383-9E4304787CF61EC0