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June 12, 2012 by Ben Somberg

Conservatives Blast Obama Administration for Its Environmental Actions in 2007

Rep. Joe Barton, speaking at a hearing last week, stuck it to President Obama’s EPA (at 39:00):

In Idaho, just recently, the Obama Administration went against a family called the Sacketts on a wetlands issue. Again, Mr. Chairman, the Congress sets the rules, and the Administration enforces them. This Obama Administration, in the case of the EPA, doesn’t want to play by the rules, they want to set their own rules.

At issue is the case of Mike and Chantell Sackett, decided this year by the Supreme Court. The Sacketts planned to build a house on land they had purchased in Idaho. The EPA said they could not because the land was a wetlands area; it issued the Sacketts an administrative compliance order, which they challenged in court. (See our coverage of the case, by Nina MendelsonHolly Doremus, and Joel Mintz, and analyses post-decision by Mendelson and Mintz; see also the documents NRDC obtained via FOIA shedding light on the plaintiffs’ story.)

Let's lay aside for the moment whether EPA was right to issue the order. (See some of the posts above if you want more on that.) What's striking about Barton's statement …

June 8, 2012 by Martha McCluskey
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The natural gas industry’s campaign against increased federal oversight of shale gas development has recently produced a spurt of “dirty science” minimizing the environmental risks of hydraulic fracturing, or “fracking.” 

The University at Buffalo, the branch of the State University of New York where I teach, recently launched its new “Shale Resources and Society Institute” (SRSI) by issuing a report last month giving the “first quantitative data review of Pennsylvania’s regulation of hydraulic fracturing.” The report examined state environmental law violations during 2008-2011, a period when drilling in Pennsylvania shale increased substantially.  A press release from the university – widely quoted in the national news – quoted the lead author’s description of the findings: “now we have comprehensive data that demonstrates, without ambiguity, that state regulation coupled with improvements in industry practices result in a low risk of an environmental event occurring in shale development, and …

June 8, 2012 by Lisa Heinzerling
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Cross-posted from Georgetown Law Faculty Blog.

When an agency defends over three decades of inaction on an important problem by saying that acting would take too long, one hopes a judge reviewing the agency's inaction will see through the pretense.  This is exactly what happened this week, when a federal magistrate judge in New York ruled that the U.S. Food and Drug Administration had acted arbitrarily in citing time and resource constraints in declining to limit the use of antibiotics in animal feed. 

Some 80 percent of the antibiotics used in the United States are given to animals destined to become part of our food supply.  Most of these drugs are given not to sick but to healthy animals; they are used not to treat disease but to promote animal growth or to prevent bacterial infections from occurring.  Both of these purposes are tied to …

June 6, 2012 by Ben Somberg
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The House Energy & Commerce Committee’s Subcommittee on Energy and Power holds a hearing today on “EPA Enforcement Priorities and Practices.” CPR Member Scholar Joel Mintz, Professor at Nova Southeastern University Law Center, will be testifying. From his testimony:

.. during the eight years of the George W. Bush administration, the civil penalties assessed against environmental law violators averaged $117 million per year. In contrast, during the first three years of the Obama administration, EPA enforcement resulted in the assessment of a lower amount of civil penalties: $115 million per year. ... Although there may well be good explanations for these declines, they do support the overall conclusions of my historical research: EPA’s enforcement work during the Obama period has been similar in nature to its work in nearly every administration since the Agency was established, regardless of the party affiliation of the president.

Mintz is the …

June 5, 2012 by Yee Huang
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Today CPR releases Manure in the Bay: A Report on Industrial Animal Agriculture in Maryland and Pennsylvania. The paper provides a snapshot of the federal Concentrated Animal Feeding Operations (CAFO) permit program under the Clean Water Act (CWA) and how these states are implementing this program.  The report provides recommendations for strengthening these programs to curb pollution to the Chesapeake Bay and provides a brief glimpse at the broader animal agricultural and manure management programs work in these states. The report was written by CPR President Rena Steinzor and me. 

Congress specifically identified CAFOs as sources of pollution to be regulated four decades ago, but regulations at the federal and state levels have only begun to be developed and seriously implemented.  In the meantime, the dramatic rise in the number of animals in fewer and fewer facilities has led to a dramatic increase in the amount of …

June 4, 2012 by Holly Doremus
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Cross-posted from Legal Planet.

The en banc 9th Circuit issued its opinion Friday in Karuk Tribe v. US Forest Service. This opinion brings a welcome reversal of a panel opinion from last April which had ruled in a split decision that the Forest Service did not have to consult with the wildlife agencies before authorizing suction dredging on the Klamath River. Judge Milan Smith wrote for the majority in the panel decision, with Judge William Fletcher in dissent. Those roles were reversed in the en banc opinion, with Judge Fletcher writing for the majority of the 11-judge en banc panel and Judge Smith writing a sharp dissent joined by 3 others.

I want to make two points about this opinion. First, substantively, it is unquestionably correct. The panel’s decision badly misinterpreted the context, potentially allowing federal mission agencies to escape the review by wildlife agencies the …

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