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May 25, 2022 by Daniel Farber

After the Court Rules: Gaming out Responses to a Cutback in EPA Authority

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

In West Virginia v. EPA, the U.S. Supreme Court is reviewing former President Obama’s Clean Power Plan. The Clean Power Plan (CPP) itself no longer has any practical relevance, but there’s every reason to predict the Court will strike it down. The big question is what the Biden administration should do next. That depends on the breadth of the Court’s opinion.

The Clean Power Plan was the centerpiece of the Obama administration’s climate policy. It had three pillars: (1) reductions in emissions from coal-fired power plants; (2) shifts by the owners of coal plants to gas and renewables, and of gas-fired plants to renewables; (3) shifts by states toward the same kinds of shifts for their overall power mixes.

The Clean Power Plan has no practical significance today: the deadlines in the plan have long since passed, and the United States has achieved the plan's national target for other reasons, even though the plan itself never went into effect. The Trump administration said that the second two prongs, involving shifts away from coal and toward renewables, went beyond EPA’s powers under the Clean …

May 19, 2022 by Jake Moore
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In 2001, an explosion at the Motiva Enterprises Delaware City Refinery caused a 1 million gallon sulfuric acid spill, killing one worker and severely injuring eight others.

In 2008, an aboveground storage tank containing 2 million gallons of liquid fertilizer collapsed at the Allied Terminals facility in Chesapeake, Virginia, critically injuring two workers exposed to hazardous vapors.

In 2021, the release of over 100,000 gallons of chemicals at a Texas plant killed two contractors and hospitalized 30 others. In addition to injury and death, workplace chemical spills and exposures contribute to an estimated 50,000 work-related diseases such as asthma and chronic lung disease each year, as well as nearly 200,000 hospitalizations.

The Occupational Safety and Health Administration (OSHA) was created to reduce risks and hazards to workers, and to prevent incidents like these. However, following through on this promise has been another matter.

OSHA …

May 2, 2022 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

Court watchers and environmentalists are waiting with bated breath for the U.S. Supreme Court to rule on West Virginia v. EPA, the Court's most important climate change case in a generation. The issue in that case is what, if anything, the U.S. Environmental Protection Agency (EPA) can do to regulate carbon emissions from power plants and factories. Last week, conservative states asked the Court to intervene in another climate change case. How the Court responds could give us hints into just how far the activist conservative majority is likely to go in the West Virginia case.

The new case is a challenge to the government's use of the social cost of carbon in making decisions about regulation. The social cost of carbon is an estimate of the harm done by the emission of a …

April 25, 2022 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

Last week, the White House undid an effort by the Trump administration to undermine the use of environmental impact statements. The prior rules had been in effect since 1978. Restoring the 1978 version was the right thing to do. The Trump rules arbitrarily limited the scope of the environmental effects that the U.S. Environmental Protection Agency (EPA) can consider under the National Environmental Policy Act (NEPA). Their goal was clearly to prevent consideration of climate change.

More specifically, the Trump revision cut references to indirect or cumulative environmental impacts and discouraged consideration of effects that are remote in time, geographically remote, or the product of a lengthy causal chain. These restrictions flew in the face of everything we know about harm to the environment. We know that harm is often long-term rather than immediately obvious …

April 22, 2022 by Jake Moore
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In October 2022, the Clean Water Act will turn 50. Though heralded as a crowning environmental achievement, some argue it’s a costly and ineffective law. Half a century later, what has it achieved, and what can policymakers improve?

Since enactment, the Clean Water Act has led to cleaner waterways and healthier wildlife. Its implementation has prevented billions of pounds of pollutants from entering our water, protected public health, and slowed the decline of ecologically and economically crucial wetlands.

According to Center for Progressive Member Scholar Robin Kundis Craig, its most underappreciated achievement has been direct investment in wastewater and sewage treatment infrastructure. Often taken for granted, the social, economic, and environmental benefits of wastewater treatment facilities are massive. By some estimates, funding national water treatment needs would spur $220 billion dollars of growth. Since 1972, over $100 billion of Clean Water Act assistance funds alone have …

April 21, 2022 by Minor Sinclair
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This blog post is the third in a series outlining the Center for Progressive Reform's strategic direction. We previously published "Strengthening the 4th Branch of Government" and "A Turning Point on Climate."

I'm hopeful the recent disco revival won't last but that other resurging movements of the 1960s and '70s will. That era saw the birth and explosive growth of the modern environmental movement alongside other sweeping actions for peace and equality.

Public pressure led to critical environmental laws that continue to protect our natural resources and our health and safety. In 1970, Congress created the U.S. Environmental Protection Agency and enacted the Clean Air Act, which authorizes the federal government to limit air pollution, and the Occupational Safety and Health Act, which established the first nationwide program to protect workers from on-the-job harm. Two years later came passage of the Clean …

April 12, 2022 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

The Trump administration left a trail of regulatory destruction behind it. Cleaning up the mess and issuing new regulations is Priority #1 for the Biden administration. Under U.S. Environmental Protection Agency (EPA) head Michael Regan, the effort is beginning to pick up steam.

EPA has begun the year with several major new regulatory efforts. No one of them is transformative standing alone, but their cumulative impact will be substantially cleaner air and lower carbon emissions.

February 28. EPA proposed an unexpectedly strong expansion of the existing rules governing interstate air pollution. The proposal would strengthen existing limits for coal and gas-fired power plants, but it would also add other categories of industry such as cement. In addition, it adds western states like California to the rule's coverage. EPA estimates that the benefits of the rule …

March 22, 2022 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

In describing cost-benefit analysis to students, I've often told them that the "cost" side of the equation is pretty simple. And it does seem simple: just get some engineers to figure out how industry can comply and run some spreadsheets of the costs. But this seemingly simple calculation turns out to be riddled with uncertainties, particularly when you're talking about regulating the energy industry. Those uncertainties need more attention in designing regulations.

The U.S. Environmental Protection Agency (EPA) confronted some of these issues recently in its reevaluation of a regulation limiting mercury emissions from coal power plants. (You might wonder why EPA was taking this look backwards; the reason was basically that the U.S. Supreme Court told them to do so.) In 2011, EPA had estimated that the compliance cost would work out to …

March 8, 2022 by David Driesen
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Arguments and judicial reasoning in administrative law cases usually focus on the case at hand. Indeed, the Administrative Procedure Act (APA) commands that narrow focus. The APA does not give the courts any role in shaping the laws governing administrative agencies, for that is what Congress does. Instead, it gives the courts a modest, albeit difficult responsibility: They may determine whether a particular agency action is arbitrary and capricious or contrary to law. Therefore, parties challenging an agency rule they disapprove of generally argue that the agency has violated some restraint stated in the statute or exercised its discretion in an arbitrary way.

But in the U.S. Supreme Court case heard last week about the scope of EPA's authority to regulate greenhouse gas emissions (West Virginia v. EPA), coal companies relied heavily on a "parade of horribles" argument — a listing of bad things that …

March 4, 2022 by Karen Sokol
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Last fall, on the same day that the parties to the Paris Agreement gathered in Glasgow for their first day of their annual international climate meeting, the U.S. Supreme Court announced it would review an appellate court decision about the U.S. Environmental Protection Agency's authority to regulate greenhouse gases from fossil fuel power plants under the Clean Air Act.

Fast forward half a year: On February 28, the day that the U.N. Intergovernmental Panel Climate Change issued its sobering report on climate adaptation and harms to human and planetary well-being, the court heard oral arguments in the case—West Virginia v. EPA.

Once again, it was a split-screen reality.

In reaction to the report, U.N. Secretary-General António Guterres stated, "Today's IPCC report is an atlas of human suffering and a damning indictment of failed climate leadership …

CPR HOMEPAGE
More on CPR's Work & Scholars.
May 25, 2022

After the Court Rules: Gaming out Responses to a Cutback in EPA Authority

May 19, 2022

Worker Safety Means Environmental Regulation

May 2, 2022

Taking the Supreme Court's Temperature on Global Warming

April 25, 2022

Biden Undoes NEPA Rollback

April 22, 2022

The Clean Water Act's Midlife Crisis

April 21, 2022

Protecting Future Generations, Just as Earlier Ones Sought to Protect Us

April 12, 2022

Regan Hits His Stride