wetlands-florida-wide.jpg
June 16, 2021 by Robin Kundis Craig

Waters of the United States, 2021/2022 Edition, Part II

This is the second of of a two-part post. Part I is available here.

In the first part of this post, I briefly touched on the chaotic history of the EPA and Army Corps' definition and regulation of "waters of the United States" under the Clean Water Act. I also pointed out that this definition and its varying interpretations across courts and administrations can have significant impacts on water pollution prevention and the protection of our nation's waterways. With the Biden administration tackling a redo of the "waters of the United States" rule, court challenges are sure to follow. In this post, I'll explore three approaches to the rule that might help it survive judicial review.

  1. Openly Acknowledge that Section 404 of the Clean Water Has Hijacked the “Waters of the United States” Discussion and Provide a Corrective

    The Clean Water Act, for better or for worse, uses a single phrase — “discharge of a pollutant” — and a single set of definitions to trigger both of its permit programs. The three Supreme Court cases on “waters of the United States” have all arisen in the context of Section 404, which prohibits discharges of dredged or fill material into navigable waters without …

June 15, 2021 by Alina Gonzalez
wind energy blog post banner.jpg

A few years ago, the prospects of offshore wind energy seemed lofty, but the industry is finally taking off. As part of his efforts to combat climate change, President Joe Biden has pledged to double offshore wind production by 2030. This commitment stems from the enormous benefits and potential that wind energy can provide as we transition to clean, sustainable energy. 

Harnessing something as intangible as wind may seem like an unlikely source of energy, but it’s downright powerful, thanks to the design and capacity of offshore wind farms. A single rotation of General Electric’s most powerful turbine, Haliade-X, can power a household in the United Kingdom for two days. Results may differ slightly in the United States because the average U.S. household uses about three times more electricity than the average U.K. household. 

Last month, the Biden administration approved the Vineyard Wind …

June 10, 2021 by James Goodwin
retail-worker-wide.jpg

Political Interference from White House Regulatory Office May Have Played a Role

The Labor Department’s emergency COVID standard, released today, is too limited and weak to effectively protect all workers from the ongoing pandemic. The workers left at greatest risk are people of color and the working poor.

Workers justifiably expected an enforceable general industry standard to protect them from COVID-19, and the Center for Progressive Reform (CPR) has been calling for such a standard since June 2020. But what emerged after more than six weeks of closed-door White House review was a largely unenforceable voluntary guidance document, with only health care workers receiving the benefit of an enforceable standard.

The interference with the COVID standard by the White House regulatory office, the Office of Information and Regulatory Affairs (OIRA), sends the wrong signal about the Biden administration's commitment to improving the regulatory review process, which …

June 9, 2021 by James Goodwin
power-plant-power-lines-wide.jpg

In addition to cleaning up our environment, the U.S. Environmental Protection Agency (EPA) must also clean up the mess the Trump administration left behind.

The Biden EPA recently took an important step in this direction by finalizing its plan to rescind a Trump-era rule that would drastically overhaul how it analyzes the rules it develops to implement the Clean Air Act. If implemented, Trump's "benefits-busting" rule would have sabotaged the effective and timely implementation of this popular and essential law, which protects the public from dangerous pollution that worsens asthma and causes other diseases. The rescission is slated to take effect next week.

On June 9, the EPA held a public hearing to gather feedback on rescinding the rule, which CPR has been tracking for several years. CPR Member Scholars Rebecca Bratspies and Amy Sinden joined me in testifying in support.

A New and Better Approach …

June 9, 2021 by Daniel Farber
PFJA-climate justice-hurricanes.jpg

This post was originally published on Legal Planet. Reprinted with permission.

Hurricanes Harvey and Maria. California wildfires. Superstorm Sandy. The great Texas blackout. The list goes on.

These mega-events dramatize the need to improve our disaster response system. The trends are striking: escalating disaster impacts, more disaster clustering, more disaster cascades, and less predictability. We need to up our game. Lisa Grow Sun and I discuss the implications in a new paper, but here are a few of the key takeaways.

Escalating impacts. From 1980 to 2020, there were an average of seven billion-dollar events per year. (Interestingly, nearly half of them were in Texas.) But from 2015-2020, the average was 16 per year. 2020 had a record-breaking 22 billion-dollar events. Why? It's partly higher GDP and population, so more people and wealth are at risk. More people and infrastructure are located in high-risk areas, especially coasts …

June 8, 2021 by Clarissa Libertelli
deepwaterhorizon-banner.png

Today is World Oceans Day, a time to consider how ocean policy connects to human and environmental health. This year’s theme of “Life and Livelihoods” comes as our federal government is finally making energy jobs and climate justice a priority. It is also an opportunity to reflect on one of the most devastating events to impact Gulf Coast waters and those who depend on them — the BP/Deepwater Horizon oil spill of 2010. Eleven years on, workers continue to raise the alarm over the spill’s long-term health impacts, fighting against a backdrop of weak safety regulations.

Eleven workers were killed and 17 injured in the oil rig explosion that caused the largest marine oil spill in history, flooding over 200 million gallons of oil into the Louisiana coast for more than 87 days. The disaster and subsequent media frenzy rallied politicians and the public against …

June 7, 2021 by Daniel Farber
climate-march.jpg

This post was originally published on Legal Planet. Reprinted with permission.

Some events last week sent a strong signal that the tide is turning against fossil fuels. Each of the events standing alone would have been noteworthy. The clustering of these events dramatizes an important shift.

To paraphrase Churchill, this may not be beginning of the end for fossil fuels, but at least it is the end of the beginning of the campaign against them.

Two of the events involved striking decisions in lawsuits in other countries involving fossil fuels. A federal court in Australia ruled that the government had a "duty of care" toward its young people to protect them from climate change. Accordingly, it could be found guilty of negligence if it failed to take their interests into account when considering a request to expand a coal mine. The court said that "it is difficult …

June 3, 2021 by Maggie Dewane
Capitol Dome and flag

Season 5 of the Center for Progressive Reform's Connect the Dots podcast continues with Episode 4: That's an Order. Keep reading for a summary and to listen to the episode.

President Biden put climate policy front and center on his campaigning platform and wasted no time in pushing his agenda when he took office. The president has proposed $14 billion in spending on initiatives to fight the crisis in the nation’s 2022 budget, and he has appointed cabinet officials with informed backgrounds to offer guidance. He’s also altered tax incentives to favor clean energy over fossil fuels and promised to spur a job revolution that will protect workers in this sector.  But the U.S. is operated by three branches of government and federal powers are limited. It’s often the case that the "real work" is done on state and local levels. So, how …

May 27, 2021 by Karen Sokol
supreme-court-sunny-wide.jpg

This op-ed was originally published in Drilled News on May 26, 2021. This is an excerpt.

Last week, the U.S. Supreme Court weighed in on an important case about whether major oil and gas companies should be held accountable for engaging in a systematic marketing campaign to deceive the public about the catastrophic threat that fossil fuel products pose to the planet. 

The Court didn’t consider the merits of the case but rather answered an obscure procedural question in a way that permits the defendants to continue to delay litigation in state court, and thereby also serves to deny the public essential information about the fossil fuel industry’s attempt to spread disinformation about its products’ role in fueling the climate crisis.

In the case, Baltimore alleges that the companies used deceptive marketing tactics to hide the danger of fossil fuel products in order to …

May 24, 2021 by Daniel Farber
lead-based-paint-deteriorated-cc-by-sa-4-wide.jpg

This post was originally published on Legal Planet. Reprinted with permission.

Lead can cause neurological damage to young children and developing fetuses. The only really safe level is zero. Because poor children are the most likely to be exposed to this hazard, this is also a major environmental justice issue.

The Trump EPA took the position that it could set a hazard level higher than zero because of the cost of reaching a lower threshold. In a split decision, the Ninth Circuit reversed. The statutory issues are complicated, and a dissent raised some reasonable arguments. Ultimately, though, it's hard to believe Congress wanted EPA to misrepresent that a certain level of lead is safe for children when it really isn't.

The case involved several types of regulations, but the most important dealt with levels of lead dust. The main way children are exposed to lead is by …

CPR HOMEPAGE
More on CPR's Work & Scholars.
Aug. 2, 2021

To Protect Workers and Consumers, Congress Must End Forced Arbitration

July 30, 2021

Oregon Takes a Big Step Forward

July 29, 2021

CPR Member Scholars Tapped by Biden Administration for Key Justice and Environmental Advisory Positions

July 22, 2021

What Fossil Fuel Industry Deception Tells Us About How to Survive the Climate Emergency

July 22, 2021

The Hill Op-Ed: Leadership and the Challenge of Climate Change

July 21, 2021

Biden Said He Wants to 'Modernize Regulatory Review.' The EPA's Chemical Disaster Rule is a Great Place to Start.

July 20, 2021

The Specter of Dictatorship Behind the Unitary Executive Theory