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Jan. 12, 2021 by Victor Flatt

Study Finds Significant Flaws with Trump Waters of the United States Rule, Provides Legal Support for Biden Replacement

One of the most vexing environmental law issues of the last three decades is the scope of the term "waters of the United States" (WOTUS) in the Clean Water Act — and what marshes, lakes, and streams fall under its purview. A connected legal question stretching back even further is how much deference to give agencies in policymaking and legal interpretations.

These issues are present in both the Trump administration's final "Waters of the United States" rule, which narrowly defines waters subject to the act, and the Biden administration's likely attempt to expand that definition. The Trump administration's narrow approach dramatically reduces the number of waterways under federal protection. A broader definition would restore and possibly expand protections to better safeguard public and environmental health.

A new study on the economic analyses in the Trump rule (which I co-authored) concludes that its supporting economic analyses rely on questionable assumptions that are unsupported by evidence. The External Environmental Economics Advisory Committee (E-EEAC), an independent organization that provides information to the EPA, commissioned the study.

Our courts have been grappling with what "waters" Congress intended to include under the regulatory purview of the U.S. Environmental Protection Agency (EPA) and the U.S …

Jan. 8, 2021 by Amy Sinden, Richard Parker
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This post was originally published by the Yale Journal on Regulation's Notice & Comment blog. Reprinted with permission.

T’was the season of gift-giving and on December 9, outgoing EPA Administrator Andrew Wheeler delivered a parting gift for his successor in the form of a new regulation: Increasing Consistency and Transparency in Considering Benefits and Costs in the Clean Air Act Rulemaking Process.

The new Rule is offered as a simple housekeeping measure designed “to ensure consistent, high-quality analyses [and to] codif[y] best practices for benefit-cost analysis in rulemaking.” Some observers find it relatively harmless; but others are not so sanguine. We view it as a sort of Trojan Horse—seemingly innocuous on its face, but harboring content that will hamper, and may undermine, EPA’s efforts to confront the climate crisis and protect the safety of the air we breathe. Here are a few …

Jan. 7, 2021 by Darya Minovi, James Goodwin
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UPDATE: On January 27, a federal district court in Montana found that the Trump EPA unlawfully made the censored science rule immediately effective. The court then delayed its effective date until February 5. This doesn't overturn the rule, but it does give the Biden-Harris administration more flexibility as it works to fully repeal this damaging policy.

In a last-ditch effort to further weaken the U.S. Environmental Protection Agency's (EPA) ability to protect public health, this week, the Trump administration published its final “censored science” rule. As stated in the Center for Progressive Reform’s comments on the draft rulemaking, this proposal unjustifiably limits the research that can be used in regulatory decision-making, giving more weight to studies where the underlying data is publicly available. These restrictions will apply to dose-response studies — which measure how much an increase in pollution exposure increases public health harms — and which …

Dec. 18, 2020 by Victor Flatt, Joel Mintz
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Update: On March 10, 2021, the Senate voted to confirm Michael Regan as EPA Administrator.

President-elect Joe Biden is set to name Michael Regan to lead the U.S. Environmental Protection Agency (EPA). Regan is currently the secretary of the North Carolina Department of Environmental Quality, and his past experience includes earlier stints at EPA and the Environmental Defense Fund. He would be the first Black man to serve as EPA administrator.

Donald Trump and the industry allies he appointed to head this critical agency — Scott Pruitt and Andrew Wheeler — harmed it through a series of air, water, pesticide, and chemical safety rollbacks. Pruitt and Wheeler also imposed damaging procedural rules on the agency that, if left in place, will make it next to impossible to use the best science to craft environmental protections — or to justify them in the first place. Adding insult to injury, the …

Dec. 15, 2020 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

Donald Trump prided himself on his contempt for established norms of presidential action. Whole books have been written about how to restore those norms. Something similar also happened deeper down in the government, out in the agencies like the U.S. Environmental Protection Agency (EPA) that do the actual work of governance. Trump appointees have corrupted agencies and trashed the norms that support agency integrity. It will take hard work to undo the harm. White House leadership is important, but success will require dedicated effort by the agency heads appointed by Biden.

Scientific integrity. The role of science is the most obvious example of norm busting under Trump. Whether it is EPA, the National Oceanic and Atmospheric Administration (NOAA), the Food and Drug Administration (FDA), or the Centers for Disease Control and Prevention (CDC), the Trump …

Dec. 10, 2020 by Katlyn Schmitt
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Ever since the U.S. Environmental Protection Agency (EPA) issued a dangerous (and now-rescinded) policy relaxing enforcement of environmental protections in March, the Center for Progressive Reform has watchdogged responses from state environmental agencies in three states in the Chesapeake Bay Region — Maryland, Virginia, and Pennsylvania.

While the EPA essentially gave companies a free pass to hide pollution violations during the pandemic, most states set up processes to handle COVID-19-related noncompliance. Environmental agencies in Maryland, Virginia, and Pennsylvania received dozens of waiver requests related to water, land, and air quality protections, pollution controls, sampling and monitoring, inspections, and critical infrastructure deadlines.

A majority of these requests were related to the pandemic. But others, such as those seeking to delay important deadlines for construction projects, were not. This suggests that some polluters are using COVID-19 as an excuse to subvert or delay deadlines that prevent further air or …

Sept. 24, 2020 by James Goodwin
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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 …

Sept. 21, 2020 by Rebecca Bratspies
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Recently, U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler spoke to commemorate the 50th anniversary of the EPA's founding. He used the opportunity to reiterate the agency's commitment to its “straightforward” mission to “protect human health and the environment.” He also emphasized that the agency’s mission meant “ensuring that all Americans – regardless of their zip code – have clean air to breathe, clean water to drink, and clean land to live, work, and play upon.”

Why did Wheeler refer to zip code? Because decades of research have documented that pollution, and its adverse health effects, are not spread equally across the country. Instead, polluting industry tends to be concentrated in certain zip codes that, due to a history of racist redlining and housing discrimination, are predominantly the home of Black and Brown Americans.

The groundbreaking 1987 study Toxic Waste and Race in the United States first …

Sept. 17, 2020 by Joel Mintz, Victor Flatt
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This op-ed was originally published by The Revelator. Reprinted under a Creative Commons license (CC BY-NC-ND 3.0).

The COVID-19 pandemic has ushered in a wave of worrisome and needless regulatory relaxations that have increased pollution across the United States. Recent reporting by the Associated Press and other outlets has documented more than 3,000 pandemic-based requests from polluters to state agencies and the U.S. Environmental Protection Agency for waivers of environmental requirements. Numerous state governments, with the tacit encouragement of the EPA, went along with many of those requests. All too often, those waivers — requested, ostensibly, to protect American workers from exposure to the coronavirus — were granted with little or no review, notwithstanding the risks the resulting emissions posed to public health and the environment.

EPA invited this wave of waivers back in March, announcing it would relax its enforcement upon request, under cover of …

Sept. 15, 2020 by Joel Mintz
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This is the second post of a two-part set. Click to read Part I.

As I noted in a previous post, the pending case of United States v. DTE Energy, Inc. tacitly raises issues concerning the constitutionality of both Supplemental Environmental Projects (SEPs) and the citizen suit provisions of environmental laws. This second post considers another constitutional issue that may emerge in the DTE Energy litigation: whether SEP agreements – and citizen suits more generally – interfere with a “core executive function” of the president and executive branch and longstanding constitutional notions of separation of powers. To resolve that question soundly, one must look to the text of the Constitution itself, the Federalist Papers, and the relevant body of law that the lower federal courts have already developed.

Notably, neither the Constitution nor the Federalist Papers provide a clear indication of what constitutes a “core executive function” or the …

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