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Sept. 24, 2020 by James Goodwin

Citizen Suits Are Good for the Regulatory System, and We Need More of Them

An underappreciated side effect of the modern conservative movement now epitomized by Trumpism is its dogged pursuit of any legal argument to support “the cause,” no matter how ridiculous or specious. Long-settled questions like nondelegation and the constitutionality of independent regulatory agencies are suddenly, if bizarrely, up for grabs again. Add to this list a new line of argument – now germinating like a mushroom spore in horse manure – that posits that citizen suit provisions, such as those included in the Clean Air Act and Clean Water Act, are unconstitutional infringements upon the so-called unitary executive.

Earlier this month CPR Member Scholar Joel Mintz demolished this argument in a pair of posts published here. In this post, I want to move the ball forward and argue that citizen suits offer an essential opportunity for public engagement in regulatory implementation and thus should be extended universally across the entire regulatory system.

As another CPR Member Scholar, Bill Funk, has recognized, public participation is one of the essential hallmarks of the administrative laws that govern the U.S. regulatory system. The process of public notice and comment on proposed agency rules has come to epitomize the democratic features of the regulatory system, even …

Sept. 16, 2020 by Rena Steinzor
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This op-ed was originally published in The Regulatory Review. Reprinted with permission.

"I'm not convinced it's real. I think it's nothing more than the flu. If I die from the virus, it was just meant to be," Thomas Seale, an attendee at the Sturgis Motorcycle rally, reportedly said of COVID-19.

An estimated 460,000 people who love motorcycle culture and the company of like-minded people attended the huge rally in Sturgis, South Dakota, population 7,000, for 10 days in August 2020. They rode around, had races, attended bike shows and concerts, and drank beer. Face masks were rare.

People told New York Times reporter Mark Walker about the core importance of the event: they met their spouses at earlier rallies, referred to their fellow participants as family, or had attended the rally for decades. When asked about the pandemic, the attendees explained they were not …

Aug. 20, 2020 by James Goodwin
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The Congressional Review Act (CRA) is a bad law and should be repealed. Yet, it has taken on outsized importance given that it provides one of the few vehicles for moving substantive legislation through a hyper-polarized Congress. The upcoming elections are thrusting it back in the spotlight, so let’s talk about the CRA and how opponents of the Trump administration’s assault on public safeguards might put it to its highest and best use.

First things first, though: The CRA only becomes viable if the Democrats sweep the presidential election and secure majorities in both chambers of Congress. Some polling suggests that the stars appear to be aligning in this fashion, just as they did at the beginning of the Trump administration when the full aggressive force of the CRA was first deployed. If this happens, that means any rules issued “late enough” in the Trump …

Aug. 3, 2020 by Matt Shudtz
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The nation is finally beginning to grapple with the widespread disparities in public health, economic opportunity, and community well-being across race and class that stem from longstanding systems of oppression and injustice. As systems thinkers, CPR's Board, staff, and Member Scholars have devoted considerable time to researching and understanding the roots of these inequities, considering the disproportionate impacts on frontline communities, and advocating for just policy reform.

Our Regulation as Social Justice project is an example. It recognizes that EPA, OSHA, and other "protector agencies" have a vital role to play in preventing harm to people and the environment through their statutory authority to adopt and enforce regulations. As they exercise that authority, agencies also have the capacity, indeed the moral obligation, to redress environmental and public health injustices by prioritizing the needs of overburdened communities in the development of their regulatory agenda and enforcement policies.

In …

July 28, 2020 by James Goodwin
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Today, a group of 136 law professors from across the United States, including 31 Center for Progressive Reform (CPR) Member Scholars, will send a letter to congressional leaders urging them to “ensure that our courthouse doors remain open to all Americans for injuries they suffer from negligence during the COVID-19 pandemic.”

The letter, spearheaded by CPR Member Scholars Dan Farber and Michael Duff, comes in response to a push by the U.S. Chamber of Commerce and other corporate special interests to include a “federal liability shield” in the next COVID relief bill, which is now being negotiated in Congress. This shield would prevent ordinary Americans from holding corporations accountable in the civil courts when their unreasonably dangerous actions cause people to become sick with the virus.

As the letter explains, the federal liability shield would violate clear principles of federalism by intruding upon the traditional rights …

June 16, 2020 by Katlyn Schmitt
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On June 9, the House Energy and Commerce Committee's Subcommittee on Environment and Climate Change held a remote hearing, “Pollution and Pandemics: COVID-19’s Disproportionate Impact on Environmental Justice Communities.” The Center for Progressive Reform, joined by Fair Farms, Sentinels of Eastern Shore Health (SESH), and the Sussex Health and Environmental Network submitted a fact sheet to subcommittee members outlining the impacts of COVID-19 on the Delmarva Peninsula, along with a number of recommendations for building a more sustainable model for the region.

The area is home to a massive poultry industry, hit hard by the coronavirus pandemic. We addressed several of the most severe problems in our fact sheet, including the following.

Public Health Harms from 'Depopulation'

Because of pandemic-driven staffing shortages, approximately 2 million chickens in the region, likely more, have been killed without having been processed into consumer-ready meat. According to the industry, once …

June 1, 2020 by Matt Shudtz, David Flores, Matthew Freeman, James Goodwin, Brian Gumm, Catherine Jones, Darya Minovi, Katlyn Schmitt, Katie Tracy, Robert Verchick, Robert Glicksman, Alice Kaswan, Thomas McGarity, Joel Mintz, Sidney Shapiro, Amy Sinden
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Staff and Board members of the Center for Progressive Reform (CPR) denounce the murder of George Floyd by Minneapolis police officer Derek Chauvin on Memorial Day. We stand with the peaceful protestors calling for radical, systemic reforms to root out racism from our society and all levels of our governing institutions and the policies they administer.

CPR Member Scholars and staff are dedicated to listening to and working alongside Black communities and non-Black people of color to call out racism and injustice and demand immediate and long-lasting change. Racism and bigotry cannot continue in the United States if our nation is to live up to its creed of life, liberty, and the pursuit of happiness for all.

CPR's vision is thriving communities and a resilient planet. That ideal animates all of our work, but systemic sources of inequality and injustice stand as massive barriers to the realization …

June 1, 2020 by James Goodwin
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It is now beyond debate – or at least it should be – that we, the people of the United States, have been failed by the Trump administration and its conservative apologists in Congress in their response to the COVID-19 pandemic. They failed to put in place mechanisms for systematic testing and contact tracing. They failed to coordinate the efficient acquisition of essential medical equipment such as ventilators and personal protective equipment. They failed to provide for an orderly phase-down of non-essential economic activity. They failed to establish clear, enforceable safety standards protect consumers, workers, and their families engaged in essential economic activity. This stopped being a public health crisis a long time ago. The pandemic is now more fairly characterized as a crisis of government.

Fortunately, our democracy has a crucial safety valve that stands ever ready to kick in when our representatives fail to protect us: the …

May 21, 2020 by Michael C. Duff
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A recent, interesting lawsuit filed against McDonald's, in Cook County, Illinois, suffers from few of the deficiencies that I have identified in prior postings about public nuisance cases related to COVID-19 (see here and here). The named employee-plaintiffs allege "negligence" in what might look at first blush like a drop-dead workers' compensation case. This time, however, there is a wrinkle: The negligence action is pursued against both franchisor-McDonalds (McDonald's USA) and certain of McDonald's franchise restaurants (McDonald's Restaurant of Illinois, Inc., Lexi Management LLC, and DAK4, LLC). One may be the employer (subject to workers' compensation liability), and the others may not (and therefore be liable in tort). Because you cannot know in advance how the question will come out, you allege negligence with respect to each defendant. This is perfectly sensible.

It will be politically …

May 18, 2020 by Darya Minovi
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In recent weeks, as a result of cramped conditions and inadequate protections, several U.S. meat plants have closed due to coronavirus outbreaks among workers. In one particularly stunning instance, a Tyson pork processing plant in Perry, Iowa, shut down after 730 workers (58 percent of the plant's workforce) tested positive. New data from Johns Hopkins University shows that the virus spreads at more than twice the national rate in counties with major meatpacking plants. The United States now faces a meat shortage, a direct result of a broken food system – one that is built to reliably feed the bottom line of industrial agriculture at the expense of public health.

Despite the chaos, federal agencies’ responses seem to favor industry over worker and consumer health. In March, the Food and Drug Administration postponed in-person inspections at factories, canneries, and poultry farms, then in April gave a number …

CPR HOMEPAGE
More on CPR's Work & Scholars.
Sept. 24, 2020

Citizen Suits Are Good for the Regulatory System, and We Need More of Them

Sept. 16, 2020

The Pandemic's Toll on Science

Aug. 20, 2020

The Congressional Review Act Could Be Put to Positive Short-Term Use, but It Should Still Be Repealed

Aug. 3, 2020

CPR's Commitment to Justice, Equity, Diversity, and Inclusion

July 28, 2020

CPR Leads Legal Academics in Ensuring Citizen Access to Justice in the Wake of COVID-19

June 16, 2020

Environmental Justice Impacts of COVID-19 on the Delmarva Peninsula

June 1, 2020

CPR Will Stand with Those Who Cannot Breathe