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July 21, 2021 by James Goodwin

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

The Biden administration's Environmental Protection Agency (EPA) is currently seeking public input on its efforts to revamp an important Clean Air Act program called the Risk Management Plan (RMP) rule for facilities that produce, store, or use large amounts of dangerous chemicals. It is meant to prevent catastrophes — like the 2017 Arkema explosion in Crosby, Texas — which not only put human lives and health in danger (especially for the communities of color that are disproportionately overrepresented in the shadows of these facilities), but also cause costly disruption for local economies.

My CPR colleagues contributed to a timely new policy brief explaining how the EPA must be particularly attentive to the new and unique threats posed by climate change as it goes about revamping its RMP rule to prevent "double disasters" that will become increasingly common unless chemical facilities are forced to take preventative action. They presented the findings of the brief at a recent listening session that the EPA conducted as part of its input-gathering efforts, and they also submitted the document in response to the agency's call for written comments.

I joined them by submitting a second set of written comments that provided specific feedback for how the EPA …

July 20, 2021 by David Driesen
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Environmentalists have complained for years about presidential control of the administrative agencies charged with protecting the environment, seeing it as a way of thwarting proper administration of environmentally protective laws. But the U.S. Supreme Court in two recent decisions — Seila Law v. CFPB and Collins v. Yellen — made presidential control over administrative agencies a constitutional requirement (with limited and unstable exceptions) by embracing the unitary executive theory, which views administrative agencies as presidential lackeys. My new book, The Specter of Dictatorship: Judicial Enabling of Presidential Power, shows that the unitary executive theory is not only bad for environmental policy, but a threat to democracy’s survival, upon which environmental policy and all other sensible policy depends.

In The Specter of Dictatorship, I trace the modern movement toward a unitary executive back to former President Ronald Reagan’s executive order establishing centralized review of agency decisions by …

July 7, 2021 by David Flores, Darya Minovi
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To read the policy brief related to this post, click here.

Update: Read Senior Policy Analyst David Flores and Policy Analyst Darya Minovi's July 8 testimony to EPA.

Four years ago, Hurricane Harvey slammed into the coast of Texas, causing severe flooding in the Houston area and leading to a loss of electrical power throughout the region. During the blackout, a local chemical plant lost its ability to keep volatile chemicals stored onsite cool, and a secondary disaster ensued: A series of explosions endangered the lives of workers and first responders and spurred mass evacuations of nearby residents.

This infamous incident was a classic "double disaster" — a natural disaster, like a storm or earthquake, followed by a technical disaster, like a chemical release or explosion.

Also known as "natech" disasters, these events pose a severe and growing threat to public and environmental health — and to workers …

July 6, 2021 by James Goodwin
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The White House is asking for input on how the federal government can advance equity and better support underserved groups. As a policy analyst who has studied the federal regulatory system for more than a dozen years, I have some answers — and I submitted them today. My recommendations focus on the White House rulemaking process and offer the Biden administration a comprehensive blueprint for promoting racial justice and equity through agencies’ regulatory decision-making.

To put it bluntly, the U.S. regulatory system is racist.

Key institutions and procedures throughout the rulemaking process contribute to structural racism in our society, resulting in policies that exacerbate racial injustice and inequity. We can’t have truly equitable regulatory policy unless and until these features of the regulatory system are reformed or eliminated.

To make good on its promise to advance equity, the Biden administration must overhaul two interrelated components of …

July 1, 2021 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

For the last century, the Supreme Court has tried to operationalize the idea that a government regulation can be so burdensome that it amounts to a seizure of property. In the process, it has created a house of mirrors, a maze in which nothing is as it seems. Rules that appear crisp and clear turn out to be mushy and murky. Judicial rulings that seem to expand the rights of property owners turn out to undermine those rights. The Court's decision last week in Cedar Point Nursery v. Hassid illustrates both points.

Cedar Point Nursery involved a California law giving labor organizers the right to go into a farm to talk with farmworkers, thereby interfering with the owner's ability to exploit its workers. (No, that's not quite the language the Court used.) The Supreme Court held …

June 28, 2021 by Alina Gonzalez
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This month, environmental justice advocate Sharon Lavigne won the world's largest prize for environmental advocacy for blocking a chemical giant from building a roughly $1.3 billion plastic manufacturing plant in St. James Parish, Louisiana, a majority-Black community. Funded by the late Richard and Rhoda Goldman, the annual Goldman Environmental Prize is awarded to six people around the world who protect and enhance the environment in their communities

At the outset, Wanhua Chemical, the company behind the proposed facility, seemed likely to prevail. Wanhua is the world's largest producer of methylene diphenyl diisocyanate (MDI), showing its dominance in the global market.

But Lavigne did not falter. Through courage and persuasion, she defeated the petrochemical titan, which wielded power over local and state governments to the detriment of community members. For far too long, the petrochemical industry has targeted low-income communities and communities of color, believing it can …

June 25, 2021 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

Even most lawyers, let alone the rest of the population, are a bit fuzzy on how the regulatory system works. As the Biden administration is gearing up to start a slew of regulatory proceedings, here's what you need to know about the process.

Issuing Regulations

Q: Where do agencies like EPA get the power to create regulations?

A: EPA and other agencies are created by Congress. They also get the power to issue regulations from laws passed by Congress. For instance, the Clean Water Act tells EPA to issue regulations based on the "best available technology" for controlling the discharge of toxic water pollutants.

Q: Who decides whether an agency should start the process to issue a new regulation?

A: Some statutes set deadlines and require agencies to act. In those situations, a court can intervene …

June 16, 2021 by Robin Kundis Craig
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This is the first of of a two-part post. Part II is available here.

Last week, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers announced that the regulations defining “waters of the United States” under the Federal Water Pollution Control Act (better known as the Clean Water Act) are once again going to change.

The importance of that announcement is best demonstrated through a quick recap of the chaos that has dominated this element of Clean Water Act jurisdiction. In the 1980s, the EPA and Army Corps finally agreed on a regulatory definition of “waters of the United States,” a phrase that Congress had used in its 1972 overhaul of the Federal Water Pollution Control Act to define “navigable waters.” The phrase is also one of the key jurisdictional terms defining the waters to which the restructured law applies.

“Waters of …

June 16, 2021 by Robin Kundis Craig
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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 …

June 10, 2021 by James Goodwin
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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 …

CPR HOMEPAGE
More on CPR's Work & Scholars.
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

July 7, 2021

President Biden: Take Action Now to Protect the Public from 'Double Disasters'

July 6, 2021

Biden White House Can Make the Regulatory System Anti-Racist. Here's How.

July 1, 2021

The Illusions of Takings Law

June 28, 2021

Louisiana Environmental Justice Leader Wins Prestigious Environmental Prize

June 25, 2021

The Regulatory Process: FAQs