Items tagged by drowan in Berkeley Law Library -- Reference & Research Services https://tagteam.harvard.edu/hubs/21/user/drowan TagTeam social RSS aggregrator Production and combustion of fossil fuels impose enormous costs on society, which the industry doesn't pay for. I want to talk about some options for using the tax system to change that. Fri, 19 Aug 2022 09:48:11 -0400 http://progressivereform.org/cpr-blog/making-fossil-fuels-pay-their-damage/ http://progressivereform.org/cpr-blog/making-fossil-fuels-pay-their-damage/ The Inflation Reduction Act (IRA) will subsidize our nation's clean energy revolution and have a positive impact on climate-driven economics, as noted in Part I of this series. That said, the IRA isn't flawless. Notably, it includes several subsidies for fossil fuels, which will be counterproductive as our nation works toward its climate goals. Worse still, not all "carrots" for clean energy technologies are good, and the IRA includes a potentially bad one. Specifically, the IRA risks subsidizing the clean energy transition through perpetuating environmental injustice in how we obtain and use energy to fuel our economy. Thu, 18 Aug 2022 13:42:30 -0400 http://progressivereform.org/cpr-blog/inflation-reduction-act-part-ii/ http://progressivereform.org/cpr-blog/inflation-reduction-act-part-ii/ With the signature of President Joe Biden, the Inflation Reduction Act (IRA) now marks the most significant climate policy action the United States has ever taken. The defining feature of this law is that it seeks to wring carbon dioxide emissions out of the U.S. economy by relying heavily on policy "carrots," like subsidies, instead of policy "sticks," such as regulating the fossil fuel industry or attempting to capture the external costs of greenhouse gas emissions through carbon pricing. Thu, 18 Aug 2022 08:45:02 -0400 http://progressivereform.org/cpr-blog/inflation-reduction-act-part-i/ http://progressivereform.org/cpr-blog/inflation-reduction-act-part-i/ After more than 50 years, the Clean Air Act is due for an upgrade to account for changing circumstances. We can now recognize how the law is insufficiently attentive to the realities of structural racism and systemic disparities in environmental protections. Polluters have exacerbated these problems by weaponizing uncertainty to oppose stronger protections for those who need them most. In speaking to both challenges, the Public Health Air Quality Act would help ensure that the Clean Air Act is well positioned to continue serving the American people for the next 50 years. Wed, 10 Aug 2022 10:04:02 -0400 http://progressivereform.org/cpr-blog/op-ed-information-justice-offers-stronger-clean-air-protections-fenceline-communities/ http://progressivereform.org/cpr-blog/op-ed-information-justice-offers-stronger-clean-air-protections-fenceline-communities/ What wetlands and waterbodies does the Clean Water Act protect? Congress failed to provide a clear answer when it passed the statute, and the issue has been a bone of contention ever since. The Biden administration is in the process of issuing a new regulation on the subject. Normally, you'd expect the Supreme Court to wait to jump in until then. Instead, the Court reached out to grab Sackett v. EPA, where landowners take a really extreme position on the subject. Not a good sign. Mon, 08 Aug 2022 08:43:23 -0400 http://progressivereform.org/cpr-blog/will-supreme-court-gut-clean-water-act/ http://progressivereform.org/cpr-blog/will-supreme-court-gut-clean-water-act/ On July 27, I had the privilege of testifying at the North Carolina Utilities Commission (NCUC) public hearing regarding the Duke Energy Carbon Plan. The Asheville hearing was one of six forums designated for public witness testimony on the proposed decarbonization plan. In 2019, North Carolina joined 34 other states investing in solar, wind, and other renewable resources when it passed its Clean Energy Power Plan, and, in 2021, when it passed House Bill 951, which commits to a 70 percent carbon reduction by 2030 and carbon neutrality by 2050. When Duke Energy, a major corporation with outsized influence over the state’s decarbonization plan, submitted its proposal to meet those goals, it failed to account for affordability and equity. Thu, 04 Aug 2022 11:54:37 -0400 http://progressivereform.org/cpr-blog/duke-energy-carbon-plan-hearing/ http://progressivereform.org/cpr-blog/duke-energy-carbon-plan-hearing/ Last week, the Center for Progressive Reform joined 90 organizations in expressing strong support for the Environmental Justice for All Act in a letter as the bill went before the House Committee on Natural Resources for markup. The coalition, led by Coming Clean, a collaborative of environmental health and environmental justice experts, and the Environmental Justice Health Alliance for Chemical Policy Reform, urged committee members to advance this important legislation to the House floor. The bill, introduced by Reps. Raúl M. Grijalva of Arizona and Donald McEachin of Virginia, is the most significant effort by the federal government to address generations of environmental racism. Wed, 03 Aug 2022 10:48:42 -0400 http://progressivereform.org/cpr-blog/ej-for-all-act-would-address-generations-environmental-racism/ http://progressivereform.org/cpr-blog/ej-for-all-act-would-address-generations-environmental-racism/ The Biden administration’s path forward on climate change -- as the widely deployed metaphor goes -- has become more difficult with the U.S. Supreme Court’s recent decision in West Virginia vs. Environmental Protection Agency (EPA) and Sen. Joe Manchin’s (D-W.Va.) apparent veto of a reconciliation package that contains climate measures. If the Biden administration is to successfully navigate that path -- and it must if we are to avert the worst consequences of the climate crisis -- the president will need to abandon the “compass” that his predecessors have relied on for decades to guide their policy agenda: Executive Order 12866: Regulatory Planning and Review. Wed, 27 Jul 2022 08:36:45 -0400 http://progressivereform.org/cpr-blog/oped-manchin-scotus-told-biden-to-modernize-reg-review/ http://progressivereform.org/cpr-blog/oped-manchin-scotus-told-biden-to-modernize-reg-review/ Law professors dream of the day when the U.S. Supreme Court will rely on one of their publications for a proposition that is crucial to the outcome of an important case. What better validation of all the blood, sweat, and tears that were poured into the publication? What an existential high to know that they have finally arrived at the pinnacle. We experienced none of those emotions when reading Chief Justice John Roberts' opinion in West Virginia v. EPA. The citations to our work were both minor and innocuous, so that fact helps allay any sense of accomplishment. But equally significant, the Court's analysis bears little relationship to our own understanding of Section 111(a) of the Clean Air Act. Mon, 25 Jul 2022 11:27:53 -0400 http://progressivereform.org/cpr-blog/do-not-blame-us/ http://progressivereform.org/cpr-blog/do-not-blame-us/ Corporations’ widespread use -- and abuse -- of forced arbitration in employment contracts allow them to steal billions of dollars from workers every year with impunity. Employers have unilaterally imposed mandatory arbitration agreements onto 60 million American workers, and the practice is only becoming more widespread. By 2024, 80 percent of nonunion workers will be subject to forced arbitration. Wed, 20 Jul 2022 12:25:05 -0400 http://progressivereform.org/cpr-blog/forced-arbitration-robs-workers-billions-wages/ http://progressivereform.org/cpr-blog/forced-arbitration-robs-workers-billions-wages/ What government powers would be unlocked by declaring a climate change emergency? One immediate possibility would be to use the same power that former President Trump used to divert military construction funds to other uses -- in this case, perhaps building wind or solar farms or new transmission lines. But what else could President Biden do? Wed, 20 Jul 2022 09:08:08 -0400 http://progressivereform.org/cpr-blog/declaring-a-climate-change-emergency-a-citizens-guide-part-ii/ http://progressivereform.org/cpr-blog/declaring-a-climate-change-emergency-a-citizens-guide-part-ii/ Based on press reports, it now seems likely that President Joe Biden will soon declare climate change to be a national emergency. Would this be legal? Would it unlock important powers that could be used to fight climate change? My answers are: It would probably be legal, and it would unlock some significant powers. But an emergency declaration is not a magic wand that gives presidents a blank check. It would allow some constructive steps to be taken, but within limits. Tue, 19 Jul 2022 12:27:37 -0400 http://progressivereform.org/cpr-blog/declaring-a-climate-change-emergency-a-citizens-guide-part-i/ http://progressivereform.org/cpr-blog/declaring-a-climate-change-emergency-a-citizens-guide-part-i/ Wage theft is a massive crisis for workers, but federal, state, and local agencies have failed to address the problem. Wage theft occurs in many forms: Paying wages lower than the minimum wage, not paying overtime wages, coercing employees to work "off the clock" before or after shifts, prohibiting workers from taking legally mandated breaks, confiscating tips, and more. Tue, 19 Jul 2022 08:06:30 -0400 http://progressivereform.org/cpr-blog/protecting-workers-prosecuting-wage-theft-crime/ http://progressivereform.org/cpr-blog/protecting-workers-prosecuting-wage-theft-crime/ Without Senator Joe Manchin's (D-WV) support, a key energy bill will fail to move forward in the U.S. Senate. The bill's provisions would have taken needed steps toward limiting the global average temperature change to 1.5 degree Celcius, the goal of the Paris Climate Agreement, and transitioning our nation to a clean energy economy. Fri, 15 Jul 2022 10:06:18 -0400 http://progressivereform.org/cpr-blog/apparent-defeat-clean-energy-legislation-congress-staggering-loss-our-country-and-climate/ http://progressivereform.org/cpr-blog/apparent-defeat-clean-energy-legislation-congress-staggering-loss-our-country-and-climate/ Nationally, nonprofit organizations employ about 10 percent of the entire private workforce. That’s 12 million paid workers -- nearly as many as the entire manufacturing field. Many of those employees, with the exception of higher-paid college and hospital workers, earn $4 to $5 per hour less in terms of total compensation than similar workers in private industry. Many factors contribute to the nonprofit wage gap. For some organizations, a reliance on donations or government contracts puts a ceiling on employee compensation. For others, mission-first means serving the cause even if it means sacrificing the financial well-being of the employees tasked with doing the actual work. This is unacceptable -- especially during a time when the nonprofit world is increasingly focused on the importance of aligning mission and human-resource policies. But figuring out how to make that alignment happen is the tricky part. Fri, 15 Jul 2022 09:15:19 -0400 http://progressivereform.org/cpr-blog/op-ed-we-committed-paying-our-staff-more-living-wage-your-nonprofit-should-do-same/ http://progressivereform.org/cpr-blog/op-ed-we-committed-paying-our-staff-more-living-wage-your-nonprofit-should-do-same/ Duke Energy, a major corporation with near-monopoly control over North Carolina’s electric grid, has outsized influence over the state’s decarbonization plan, which is now under review. The state legislature ordered the utility commission to make a 70 percent reduction in carbon emissions by 2030 and to reach carbon neutrality by 2050. Duke Energy has submitted a plan to the commission to meet those goals, but the plan fails to take affordability and equity into full account. What’s worse: Low-wealth people aren’t required -- or, in many cases, even able -- to participate in the planning process. They’re shut out. Wed, 13 Jul 2022 09:05:21 -0400 http://progressivereform.org/cpr-blog/north-carolina-climate-plan-must-include-clean-affordable-energy-underserved-residents/ http://progressivereform.org/cpr-blog/north-carolina-climate-plan-must-include-clean-affordable-energy-underserved-residents/ The Center for Progressive Reform has joined close to 1,000 organizations and individuals in providing comments on California's long-awaited plan for achieving carbon neutrality, the Draft 2022 Scoping Plan Update (Draft Plan). Gov. Gavin Newsom gave the California Air Resources Board (CARB), the state agency tasked with coordinating the plan, a daunting challenge: achieving carbon neutrality by 2045 at the latest. Our comments conclude that the state should (1) be more ambitious, (2) more explicitly achieve multiple objectives, including environmental justice, and (3) develop a supplemental plan that more specifically outlines the policy tools the state will employ to achieve its objectives. Thu, 07 Jul 2022 13:50:56 -0400 http://progressivereform.org/cpr-blog/center-progressive-reform-comments-california-adopt-more-ambitious-carbon-neutrality-plan/ http://progressivereform.org/cpr-blog/center-progressive-reform-comments-california-adopt-more-ambitious-carbon-neutrality-plan/ An article co-written by Center for Progressive Reform Member Scholar David Adelman and Attorney Advisor at the U.S. Environmental Protection (EPA) Jori Reilly-Diakun was selected for inclusion in this year’s Environmental Law and Policy Annual Review (ELPAR). ELPAR is a student-edited volume published annually in the August issue of the Environmental Law Reporter. It features abridged versions of selected articles with commentary from environmental experts. Thu, 07 Jul 2022 08:17:24 -0400 http://progressivereform.org/cpr-blog/prestigious-law-and-policy-journal-features-article-member-scholar-david-adelman/ http://progressivereform.org/cpr-blog/prestigious-law-and-policy-journal-features-article-member-scholar-david-adelman/ Throughout the first half of 2022, the U.S. Environmental Protection Agency (EPA) has announced several actions in pursuit of the goals it laid out in its PFAS Strategic Roadmap -- the blueprint it released last October outlining plans for addressing widespread PFAS contamination in the United States. Per- and polyfluoroalkyl substances, or PFAS, are a group of more than 9,000 synthetic chemicals that pose serious risks to human health, including increased blood pressure and cholesterol levels, abnormal liver function, decreased birth weights, and certain cancers. Exposure to even extremely low levels of certain PFAS are unsafe for humans. Tue, 05 Jul 2022 08:42:02 -0400 http://progressivereform.org/cpr-blog/time-enforceable-timeline-addressing-toxic-pfas-chemicals/ http://progressivereform.org/cpr-blog/time-enforceable-timeline-addressing-toxic-pfas-chemicals/ In West Virginia v. EPA, the U.S. Supreme Court slayed a phantom, a regulation that does not exist. Why? The justices in the majority could not contain their zeal to hollow out the EPA’s ability to lessen suffering from climate change in ways that impinge the profits of entrenched fossil fuel interests. Thu, 30 Jun 2022 13:01:39 -0400 http://progressivereform.org/cpr-blog/supreme-court-swings-phantoms-west-virginia-v-epa/ http://progressivereform.org/cpr-blog/supreme-court-swings-phantoms-west-virginia-v-epa/ These days, the Federal Energy Regulatory Commission can no longer be described as a technocratic, under-the-radar agency that sets policies on energy infrastructure and market rules, rates, and standards. As energy policy has become front-page news, FERC has begun updating its regulations to meet new exigencies. The agency has taken big steps to support affordability and a transition to cleaner energy, including proposing updates to the way it permits natural gas pipelines and beginning to overhaul how regions plan and pay for the expansion of electricity transmission infrastructure. These moves have provoked controversy because their stakes are high: Billions of dollars of infrastructure expenditures are on the table. What gets built, who pays, who hosts this infrastructure, and who makes those decisions also have major implications for equity and racial justice. Wed, 29 Jun 2022 10:45:33 -0400 http://progressivereform.org/cpr-blog/revelator-op-ed-regulators-have-big-chance-advance-energy-equity/ http://progressivereform.org/cpr-blog/revelator-op-ed-regulators-have-big-chance-advance-energy-equity/ In November 2021, over 70% of New Yorkers voted to amend the state's constitution to explicitly protect New Yorkers' fundamental right to clean air, clean water, and a healthful environment. New York thus joins Montana and Pennsylvania in enshrining robust constitutional environmental rights in the state constitution. Unsurprisingly, corporate defendants argue that the new right doesn't change anything. Tue, 28 Jun 2022 15:06:12 -0400 http://progressivereform.org/cpr-blog/new-yorkers-environmental-rights-are-under-attack/ http://progressivereform.org/cpr-blog/new-yorkers-environmental-rights-are-under-attack/ The Federal Energy Regulatory Commission (FERC) has been called the most important environmental agency that no one has heard of. Recently, the D.C. Circuit decided two undramatic FERC cases that illustrate the agency's environmental significance. One involved a bailout to coal and nuclear plants, the other involved water quality. Mon, 27 Jun 2022 12:15:08 -0400 http://progressivereform.org/cpr-blog/two-ferc-cases-and-why-they-matter/ http://progressivereform.org/cpr-blog/two-ferc-cases-and-why-they-matter/ The Supreme Court on Tuesday unanimously struck down a Washington state law that was aimed at helping federal contract employees get workers' compensation for diseases arising from cleaning up nuclear waste. The case, United States v. Washington, concerned the federally controlled Hanford nuclear reservation, a decommissioned facility that spans 586 square miles near the Columbia River. The reservation, formerly used by the federal government in the production of nuclear weapons, presents unique hazards to cleanup workers. Thu, 23 Jun 2022 12:46:36 -0400 http://progressivereform.org/cpr-blog/justices-overturn-washington-workers-compensation-law-strict-reading-intergovernmental-immunity/ http://progressivereform.org/cpr-blog/justices-overturn-washington-workers-compensation-law-strict-reading-intergovernmental-immunity/ Any high school student can tell you that water follows the path of least resistance. A similar rule might be said to apply to corporate polluters and small government ideologues who now see the federal judiciary -- especially a U.S. Supreme Court stocked with Trump-era judicial activists -- as the path of least resistance in pursuing their agenda of the "deconstruction of the administrative state." The first case they have teed up for the October session of oral arguments is Sackett v. EPA, which the Court could use to gut the Clean Water Act. Thu, 23 Jun 2022 08:05:13 -0400 http://progressivereform.org/cpr-blog/member-scholar-buzbee-leads-congressional-amicus-crucial-supreme-court-clean-water-act-case/ http://progressivereform.org/cpr-blog/member-scholar-buzbee-leads-congressional-amicus-crucial-supreme-court-clean-water-act-case/ On June 23, California's Air Resources Board (CARB) -- the state's air pollution control agency -- is holding a public hearing on its comprehensive roadmap for achieving the state's daunting climate goal: carbon neutrality by 2045 at the latest, a goal established by Gov. Gavin Newsom in a 2018 executive order. Although states are increasingly adopting 100 percent clean electricity targets, California's goal goes considerably farther, covering emissions from the entire economy, including transportation, industry, buildings, waste disposal, and agriculture. Wed, 22 Jun 2022 13:15:48 -0400 http://progressivereform.org/cpr-blog/mapping-future-california-weighs-pathways-carbon-neutrality/ http://progressivereform.org/cpr-blog/mapping-future-california-weighs-pathways-carbon-neutrality/ On June 23, the California Air Resources Board (CARB) will hold its first public hearing on its draft plan (the Draft 2022 Scoping Plan) for achieving the state's climate goals and for getting to carbon neutrality no later than 2045. Including actions that prioritize California's overburdened and underserved communities will be vital to the success of the proposed plan. Wed, 22 Jun 2022 08:45:00 -0400 http://progressivereform.org/cpr-blog/addressing-overburdened-underserved-communities-priorities-vital-success-california-climate-plan/ http://progressivereform.org/cpr-blog/addressing-overburdened-underserved-communities-priorities-vital-success-california-climate-plan/ The U.S. Supreme Court's upcoming ruling on the U.S. Environmental Protection Agency's power to regulate greenhouse gases from coal-fired power plants offers an unwelcome opportunity for its conservative majority to advance the former Trump administration's goal of "deconstructing the administrative state." The vehicle for advancing the Trump agenda is the obscure "major questions" doctrine, under which the Court insists that congressional delegations of power to regulatory agencies must be made with pinpoint precision on questions of "vast economic and political significance." Fri, 17 Jun 2022 09:35:23 -0400 http://progressivereform.org/cpr-blog/supreme-courts-demolition-agenda/ http://progressivereform.org/cpr-blog/supreme-courts-demolition-agenda/ I’m thrilled to share that the Center for Progressive Reform features prominently in the pages of a forthcoming anthology of last year’s best writing on environmental law. Three of five articles selected for inclusion in the 2022 edition of the anthology were written or co-written by our esteemed Member Scholars — law professors who generously donate their time and expertise to help us achieve our mission to create a more responsive and inclusive government, a healthier environment, and a just society. A fourth article was authored by a Member Scholar who is on leave from the center while serving in the Biden administration. Tue, 14 Jun 2022 08:00:00 -0400 http://progressivereform.org/cpr-blog/member-scholars-take-center-stage-prestigious-environmental-law-anthology/ http://progressivereform.org/cpr-blog/member-scholars-take-center-stage-prestigious-environmental-law-anthology/ Should regulators take into account harm to people in other countries? What about harm to future generations? Should we give special attention when the disadvantaged are harmed? These questions are central to climate policy and some other important environmental issues. I’ll use cost-benefit analysis as a framework for discussing these issues. You probably don’t need my help in thinking about the ethical issues, so instead I’ll focus on legal and economic considerations. Thu, 09 Jun 2022 11:49:55 -0400 http://progressivereform.org/cpr-blog/whose-interests-count-and-how-much/ http://progressivereform.org/cpr-blog/whose-interests-count-and-how-much/ Lessons from A Community Science Research Partnership in South-East Queens Tue, 07 Jun 2022 15:03:05 -0400 http://progressivereform.org/cpr-blog/no-sacrifice-zones-research-either/ http://progressivereform.org/cpr-blog/no-sacrifice-zones-research-either/ 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. Wed, 25 May 2022 06:51:37 -0400 http://progressivereform.org/cpr-blog/after-court-rules-gaming-out-responses-cutback-epa-authority/ http://progressivereform.org/cpr-blog/after-court-rules-gaming-out-responses-cutback-epa-authority/ The Firth Circuit Court of Appeals ruling in Jarkesy v. Securities and Exchange Comm'n is a potential blockbuster. In 2020, the Securities and Exchange Commission (SEC) held that George Jarkesy had engaged in misrepresentation in certain public statements, thereby committing securities fraud. The SEC ordered Jarkesy to cease and desist and to pay a civil penalty. In addition, the agency barred him from certain securities industry activities. Tue, 24 May 2022 12:51:18 -0400 http://progressivereform.org/cpr-blog/what-fifth-circuit-got-wrong-about-7th-amendment-jarkesy/ http://progressivereform.org/cpr-blog/what-fifth-circuit-got-wrong-about-7th-amendment-jarkesy/ Conventional wisdom holds that seeing "natural" and “organic" on product labels somehow means the companies selling those goods are using better, safer ingredients. However, these words often offer a false promise to consumers and the planet. Tue, 24 May 2022 08:02:41 -0400 http://progressivereform.org/cpr-blog/impacts-climate-chemicals-cosmetics/ http://progressivereform.org/cpr-blog/impacts-climate-chemicals-cosmetics/ While the Center for Progressive Reform staff advocate for stronger protections from toxic chemical spills, none of our experts assumed that one of our own would gain firsthand experience on the matter. Mon, 23 May 2022 09:15:50 -0400 http://progressivereform.org/cpr-blog/center-experts-lend-their-voices-podcast-environmental-justice-and-chemical-disasters/ http://progressivereform.org/cpr-blog/center-experts-lend-their-voices-podcast-environmental-justice-and-chemical-disasters/ 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. Thu, 19 May 2022 13:12:56 -0400 http://progressivereform.org/cpr-blog/worker-safety-means-environmental-regulation/ http://progressivereform.org/cpr-blog/worker-safety-means-environmental-regulation/ Soon after Trump took office, Republicans used the Congressional Review Act (CRA) to overturn sixteen Obama-era regulations. If they win control of the government in 2024, they'll undoubtedly do the same thing to Biden regulations. It behooves us, then, to understand the effect of these legislative interventions. A Ninth Circuit ruling last week in a case involving bear baiting, Safari Club v. Haaland sheds new light on this murky subject. Wed, 04 May 2022 08:58:01 -0400 http://progressivereform.org/cpr-blog/clarifying-congressional-review-act/ http://progressivereform.org/cpr-blog/clarifying-congressional-review-act/ 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. Mon, 02 May 2022 08:10:07 -0400 http://progressivereform.org/cpr-blog/taking-supreme-courts-temperature-global-warming/ http://progressivereform.org/cpr-blog/taking-supreme-courts-temperature-global-warming/ Few policy questions have a more profound impact on our day-to-lives than how we produce, transport, and use energy. Whether it's a fight against the siting of a polluting natural gas facility in a historically Black community, the catastrophic failure of an electric grid following a winter storm, foreign wars causing price shocks that further hollow out the fixed incomes of America's older adults, or an abiding concern over leaving our grandchildren a habitable climate — all these issues and more make energy policy a central concern for the public. The Federal Energy Regulatory Commission (FERC) — which oversees much of the country's energy infrastructure and helps set rules, rates, and standards for energy markets — is undertaking new efforts to level the playing field. A new Center for Progressive Reform report examines one of these efforts: the establishment of the Office of Public Participation (OPP). After decades of delay, FERC finally began setting up the office this past year. Wed, 27 Apr 2022 08:15:02 -0400 http://progressivereform.org/cpr-blog/new-report-democratizing-our-regulatory-system-can-ferc-lead-the-way/ http://progressivereform.org/cpr-blog/new-report-democratizing-our-regulatory-system-can-ferc-lead-the-way/ Earlier this month, HBO Max aired an important series about toxic ingredients in cosmetic products. The series also examined the professional beauty industry and the health effects to workers exposed to toxic ingredients. Toxic ingredients are found in cosmetics and other personal care products. The toxic chemicals used in them have been linked to a wide range of health problems, including ovarian cancer, breast cancer, early-onset puberty, fibroids and endometriosis, miscarriage, poor maternal and infant health outcomes, diabetes and obesity, and more. As I noted in Not So Pretty, "There is a loophole in federal regulation that allows industry to use almost any ingredient and label it as 'fragrance.'" Tue, 26 Apr 2022 08:19:49 -0400 http://progressivereform.org/cpr-blog/hbo-max-series-highlights-need-stronger-regulation-cosmetics-industry/ http://progressivereform.org/cpr-blog/hbo-max-series-highlights-need-stronger-regulation-cosmetics-industry/ 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. Mon, 25 Apr 2022 09:36:36 -0400 http://progressivereform.org/cpr-blog/biden-undoes-nepa-rollback/ http://progressivereform.org/cpr-blog/biden-undoes-nepa-rollback/ 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? Fri, 22 Apr 2022 07:33:21 -0400 http://progressivereform.org/cpr-blog/clean-water-acts-midlife-crisis/ http://progressivereform.org/cpr-blog/clean-water-acts-midlife-crisis/ It might not be easy to get to the merits of United States v. Washington. A funny thing happened on the way to oral argument: The state of Washington modified the 2018 workers' compensation law at the center of the case, raising the prospect that there is no longer a live dispute for the justices to resolve. Thu, 21 Apr 2022 13:47:28 -0400 http://progressivereform.org/cpr-blog/justices-wrestle-mootness-and-intergovernmental-immunity-hanford-workers-comp-case/ http://progressivereform.org/cpr-blog/justices-wrestle-mootness-and-intergovernmental-immunity-hanford-workers-comp-case/ 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 Water Act, a landmark amendment to existing anti-pollution law that requires our government to restore and maintain clean and healthy waterways across the land. That was some era -- the last great upsurge of government protections. Thu, 21 Apr 2022 08:33:41 -0400 http://progressivereform.org/cpr-blog/protecting-future-generations-just-earlier-ones-sought-protect-us/ http://progressivereform.org/cpr-blog/protecting-future-generations-just-earlier-ones-sought-protect-us/ We're sad to share the news that long-time Center for Progressive Reform Member Scholar Dale Goble passed away at his home on April 14. Scholars and staff alike appreciated his warm presence at our scholars' meetings, and he brought a wealth of knowledge to the fields of wildlife and conservation law. When the founders of CPR were reaching out to the nation's leading progressive scholars, we were so pleased that Dale agreed to join. His humanity, his dedication to protecting public lands and wildlife, and his participation in CPR will be sorely missed. Mon, 18 Apr 2022 13:23:21 -0400 http://progressivereform.org/cpr-blog/memoriam-member-scholar-dale-goble/ http://progressivereform.org/cpr-blog/memoriam-member-scholar-dale-goble/ Under established constitutional law, states may generally not tax or regulate property or operations of the federal government. This principle is known as intergovernmental immunity. Congress may waive this federal immunity, however, and the scope of that principle is the major issue in Monday’s oral argument in United States v. Washington. Fri, 15 Apr 2022 12:54:13 -0400 http://progressivereform.org/cpr-blog/at-a-vestige-of-the-manhattan-project-a-fight-over-workers-compensation-and-intergovernmental-immunity/ http://progressivereform.org/cpr-blog/at-a-vestige-of-the-manhattan-project-a-fight-over-workers-compensation-and-intergovernmental-immunity/ In 1971, Iowa highway construction workers uncovered 28 human remains. Of these, 26 were white, and two, a mother and her baby, were Native American. The white remains were buried in a local graveyard, while the Native American remains were sent to a local university for study. This decision was typical in the context of the past centuries' patrimonial laws, scientific racism, and outright genocide. In this case, however, a tribal member named Maria Pearson successfully pushed for both the return and proper burial of the Native American remains and the passage of a state law guaranteeing equal treatment of the remains of Native Americans and other peoples. Pearson and other advocates continued lobbying for federal protection of their cultural items. In 1990, because of their efforts, Congress passed the Native American Graves and Repatriation Act ("NAGPRA"), which provides a framework for federally recognized Native American tribes and Native Hawaiian Organizations to reclaim ancestral remains and associated objects from entities that receive federal funding. Thu, 14 Apr 2022 14:35:49 -0400 http://progressivereform.org/cpr-blog/honoring-native-american-culture-requires-better-engagement-tribes/ http://progressivereform.org/cpr-blog/honoring-native-american-culture-requires-better-engagement-tribes/ 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. Tue, 12 Apr 2022 08:47:01 -0400 http://progressivereform.org/cpr-blog/regan-hits-his-stride/ http://progressivereform.org/cpr-blog/regan-hits-his-stride/ Introduced last month, the Advancing Human Rights-Centered International Conservation Act comes in the wake of a 2019 news investigation that described many instances of alleged murder, rape, and torture by park rangers against Indigenous people and local communities. The alleged abuses were perpetrated at parks supported by the World Wildlife Fund (WWF), which received millions of dollars in funding from the U.S. government. Mon, 11 Apr 2022 09:45:49 -0400 http://progressivereform.org/cpr-blog/bipartisan-lawmakers-shine-needed-light-bill-protect-indigenous-communities-international-conservation-parks/ http://progressivereform.org/cpr-blog/bipartisan-lawmakers-shine-needed-light-bill-protect-indigenous-communities-international-conservation-parks/ Virginia Gov. Glenn Youngkin (R) recently made a statement bashing the Regional Greenhouse Gas Initiative (RGGI), the East Coast's regional cap-and-trade program intended to reduce climate pollution and energy costs for low-income households. In attacking the program, Youngkin repeated questionable claims about its costs, impacts, and benefits and made clear his desire to move the Commonwealth backwards on climate policy and the clean energy transition. Tue, 05 Apr 2022 14:42:08 -0400 http://progressivereform.org/cpr-blog/virginias-youngkin-didnt-major-environmental-economics/ http://progressivereform.org/cpr-blog/virginias-youngkin-didnt-major-environmental-economics/ The Biden administration is slowly grinding away at an important regulatory task: reconsidering the air quality standards for particulates and ozone. Setting those standards is an arduous and time-consuming process, requiring consideration of reams of technical data. For instance, a preliminary staff report on fine particulates (PM2.5) is over 600 pages long. When the process is done, the result will not only be better protection of public health. It will also be a reduction in emissions of carbon dioxide and other global warming agents. Mon, 04 Apr 2022 08:08:42 -0400 http://progressivereform.org/cpr-blog/pollution-control-climate-policy/ http://progressivereform.org/cpr-blog/pollution-control-climate-policy/ A couple of weeks ago, I traveled back to my home state to accept an award on behalf of the Center for Progressive Reform. The first-ever De Prey Peace Awards, named for Sheboygan, Wisconsin, peace activist Ceil De Prey, honor individuals and organizations whose work, volunteerism, and advocacy contribute to peace, a stronger democracy, and a better, more inclusive world for future generations. Thu, 31 Mar 2022 07:42:58 -0400 http://progressivereform.org/cpr-blog/center-progressive-reform-honored-wisconsin-based-peace-award/ http://progressivereform.org/cpr-blog/center-progressive-reform-honored-wisconsin-based-peace-award/ On the day before President Biden’s inauguration, the Department of Health and Human Services (HHS) adopted the Securing Updated and Necessary Statutory Evaluations Timely rule, colloquially known as the SUNSET Rule, because it would sunset any regulation that had not been assessed and, where required, reviewed within a specific timetable. Everyone is now expecting HHS to rescind the SUNSET Rule in the near future, and the agency should indeed take this action. Wed, 30 Mar 2022 09:52:06 -0400 http://progressivereform.org/cpr-blog/notice-comment-commentary-hhs-proposes-rescind-sunset-rule/ http://progressivereform.org/cpr-blog/notice-comment-commentary-hhs-proposes-rescind-sunset-rule/ The regulatory system, contrary to the claims of its conservative critics, is an indispensable part of the broader civic infrastructure on which our democracy is built. Significantly, the ability to exercise voting rights -- the most visible and potent act of civic engagement -- necessitates a stronger and more inclusive regulatory system. Tue, 29 Mar 2022 08:30:25 -0400 http://progressivereform.org/cpr-blog/safeguarding-right-vote-through-strong-regulatory-system/ http://progressivereform.org/cpr-blog/safeguarding-right-vote-through-strong-regulatory-system/ Women led the battle for industrial democracy — even before they won the vote. However, women’s contributions to and leadership of the organized labor movement, though lionized within the movement itself, have largely escaped public consciousness. Mon, 28 Mar 2022 11:24:58 -0400 http://progressivereform.org/cpr-blog/the-untold-story-of-womens-leadership-of-the-labor-movement/ http://progressivereform.org/cpr-blog/the-untold-story-of-womens-leadership-of-the-labor-movement/ Women’s History Month isn’t just a time to recognize achievements made throughout the decades to advance women’s rights and demand equity. It’s also an opportunity to celebrate women making history today, the ones in our unwritten history books. Thu, 24 Mar 2022 12:00:34 -0400 http://progressivereform.org/cpr-blog/making-history-today-these-women-government-are-blazing-new-paths/ http://progressivereform.org/cpr-blog/making-history-today-these-women-government-are-blazing-new-paths/ 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. Tue, 22 Mar 2022 09:57:49 -0400 http://progressivereform.org/cpr-blog/misestimating-regulatory-costs/ http://progressivereform.org/cpr-blog/misestimating-regulatory-costs/ The U.S. system for regulating electricity divides responsibility among too many players, assigns too many overlapping or competing tasks, and creates too many distorted incentives, a group of law professors says. They propose reforms that would break down governance silos to ensure greater collaboration in the clean energy transition. Mon, 21 Mar 2022 11:04:13 -0400 http://progressivereform.org/cpr-blog/clean-energy-is-grid-reliabilitys-best-hope-not-enemy/ http://progressivereform.org/cpr-blog/clean-energy-is-grid-reliabilitys-best-hope-not-enemy/ State officials in California are leading an extensive multisector planning effort to develop the 2022 Scoping Plan, the third update to California’s climate mitigation strategy. The new plan will outline a pathway for statewide action toward reducing greenhouse gas emissions by 40% by 2030 and reaching net-zero emissions no later than 2045. Wed, 16 Mar 2022 12:36:47 -0400 http://progressivereform.org/cpr-blog/climate-justice-must-factor-into-californias-climate-strategy/ http://progressivereform.org/cpr-blog/climate-justice-must-factor-into-californias-climate-strategy/ On March 11, there were two seismic shocks in the world of gas pipeline regulation. The Federal Energy Regulatory Commission (FERC) has spent years resisting pressure to change the way it licenses new gas pipelines. The whole point of a natural gas pipeline is to deliver the gas to users who will burn it, thereby releasing carbon dioxide into the atmosphere. FERC has steadfastly refused to take those emissions into account. The D.C. Circuit held that position illegal in an opinion released last Friday. That same day, by coincidence, FERC published guidelines in the Federal Register explaining how it proposed to consider those emissions. Tue, 15 Mar 2022 11:47:11 -0400 http://progressivereform.org/cpr-blog/pipelines-emissions-and-ferc/ http://progressivereform.org/cpr-blog/pipelines-emissions-and-ferc/ When it comes to historically marginalized groups, an “out of sight and out of mind” approach has too often infected agency policymaking. Agencies have responded with outreach to marginalized communities, but regulatory policymaking is hardly inclusive. Last January, President Biden required the government to increase engagement “with community-based organizations and civil rights organizations,” and the Administrative Conference of the United States responded with a multiday forum on underserved communities and the regulatory process. Addressing the lack of participation by marginalized communities in regulatory decision-making is crucial, but there is another fundamental issue. The input of marginalized communities will not matter if agencies ignore or devalue it because these insights are not expressed using the standard narratives of policymaking. Mon, 14 Mar 2022 10:53:55 -0400 http://progressivereform.org/cpr-blog/marginalized-groups-and-multiple-languages-regulatory-decision-making/ http://progressivereform.org/cpr-blog/marginalized-groups-and-multiple-languages-regulatory-decision-making/ Judge Ketanji Brown Jackson, recently nominated to succeed retiring Justice Stephen Breyer, has received the endorsement of over 200 Black law deans and professors. Wed, 09 Mar 2022 09:09:47 -0500 http://progressivereform.org/cpr-blog/black-women-law-professors-ecstatic-over-jacksons-nomination/ http://progressivereform.org/cpr-blog/black-women-law-professors-ecstatic-over-jacksons-nomination/ 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 might happen in future cases if the Court upheld EPA's interpretation of the Clean Air Act in the case before the Court. Tue, 08 Mar 2022 08:35:07 -0500 http://progressivereform.org/cpr-blog/parading-horribles-administrative-law-some-thoughts-oral-argument-west-virginia-v-epa/ http://progressivereform.org/cpr-blog/parading-horribles-administrative-law-some-thoughts-oral-argument-west-virginia-v-epa/ 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. Fri, 04 Mar 2022 07:57:55 -0500 http://progressivereform.org/cpr-blog/slate-op-ed-supreme-court-climate-skeptics-will-help-decide-fate-planet/ http://progressivereform.org/cpr-blog/slate-op-ed-supreme-court-climate-skeptics-will-help-decide-fate-planet/ Employers prefer to deal with their workers one on one. But workers have shown throughout history they will not abide by this unfair practice. They organize, they work together, and, when their employers refuse to deal with them all at once, they strike. Workers engaged in, and prospered from, collective action long before passage of the National Labor Relations Act. The law merely sought to regulate this action for the public good, to replace strike with negotiation, conflict with cooperation. History is now repeating itself; labor strife is increasing, thanks in part to the rise of legal contracts that force workers to settle disputes in a rigged system of arbitration rather than an impartial court of law. Thu, 03 Mar 2022 11:43:41 -0500 http://progressivereform.org/cpr-blog/forcing-workers-arbitrate-disputes-increasing-labor-strife/ http://progressivereform.org/cpr-blog/forcing-workers-arbitrate-disputes-increasing-labor-strife/ Imagine you're in the market for a new furnace. You decide to buy a more fuel-efficient system -- even though the price tag is higher -- because it will lower your monthly heating bills. Another selling point: The fuel-efficient furnace emits less carbon into the atmosphere -- a benefit you can't quite quantify but that you value nonetheless for its small salubrious effect on the planet. Policymakers go through a similar -- though much more complex -- process when implementing laws. But an obscure federal mandate known as cost-benefit analysis renders them unable to fully account for costs and benefits that are difficult to measure in dollars and cents, like the large-scale value to society of federal rules that protect public and environmental health. Despite its name, a true analysis of a rule's full benefits is impossible. Wed, 02 Mar 2022 08:40:20 -0500 http://progressivereform.org/cpr-blog/new-articles-member-scholars-highlight-costs-cost-benefit-analysis/ http://progressivereform.org/cpr-blog/new-articles-member-scholars-highlight-costs-cost-benefit-analysis/ The environmental justice movement began with a focus on neighborhood struggles against toxic waste facilities and other local pollution sources. That focus now includes other measures to ensure that vulnerable communities get the benefit of climate regulations. The most powerful tool for assisting those communities, however, may be the National Ambient Air Quality Standards (NAAQS). The NAAQS (pronounced "knacks") are supposed to be the maximum amount of air pollution consistent with protection of public health and welfare. Mon, 28 Feb 2022 08:46:51 -0500 http://progressivereform.org/cpr-blog/air-quality-environmental-justice/ http://progressivereform.org/cpr-blog/air-quality-environmental-justice/ In its first year in office, the Biden administration has, to its credit, reversed a number of anti-environmental policies initiated by former President Donald Trump. Gone is the previous administration's infamous "two-for-one" policy, under which federal agencies had to eliminate two regulatory requirements for every new regulation they proposed. Numerous Trump-era initiatives that cut back needed air and water quality protections have also been rescinded. And, thankfully, the U.S. Environmental Protection Agency (EPA) and other federal agencies are once again focused on responding to the mounting dangers posed by the climate crisis. Given these steps forward, it is perplexing that the current administration has not yet restored a critical environmental tool that has proven workable and highly beneficial in past years: EPA's Supplemental Environmental Projects (SEPs). Thu, 24 Feb 2022 14:00:42 -0500 http://progressivereform.org/cpr-blog/hill-op-ed-epa-needs-reinstate-critical-environmental-tool-scrapped-trump/ http://progressivereform.org/cpr-blog/hill-op-ed-epa-needs-reinstate-critical-environmental-tool-scrapped-trump/ After the Supreme Court's decision last month rejecting the Biden vaccine mandate for large employers, it wasn't just the public health community that was asking "where do we go from here?" Environmental activists and attorneys immediately recognized that the Court's reasoning in the vaccine case, National Federation of Independent Business v. Department of Labor, will likely lead to a win for the fossil fuel industry in the biggest environmental case of this term, West Virginia v. EPA. Thu, 24 Feb 2022 08:30:14 -0500 http://progressivereform.org/cpr-blog/american-prospect-op-ed-supreme-court-conservatives-may-slash-epas-authority-on-climate/ http://progressivereform.org/cpr-blog/american-prospect-op-ed-supreme-court-conservatives-may-slash-epas-authority-on-climate/ In this post, we take a look at the Environmental Justice for All Act, legislation originally introduced in 2021 that would strengthen environmental standards and create safer and healthier communities for all, regardless of race, ethnicity, or income. A recent Congressional committee hearing on the act might finally be moving the legislation forward. Wed, 23 Feb 2022 09:20:00 -0500 http://progressivereform.org/cpr-blog/matter-life-and-death-advocates-urge-congress-end-environmental-racism/ http://progressivereform.org/cpr-blog/matter-life-and-death-advocates-urge-congress-end-environmental-racism/ In a fair and just country, corporations are held accountable in the courts if their irresponsible behavior harms people. However, like many policies, the communities most impacted by forced arbitration are historically marginalized groups. Indeed, forced arbitration has a disproportionate impact on low-income Americans and Black and brown women when they are the victims of discrimination. Their abuse goes beyond the general adverse impacts of forced arbitration, noted in a new report by the Center for Progressive Reform. Tue, 22 Feb 2022 08:38:36 -0500 http://progressivereform.org/cpr-blog/hill-op-ed-banning-workers-suing-their-employer-hurts-people-color-and-women-most/ http://progressivereform.org/cpr-blog/hill-op-ed-banning-workers-suing-their-employer-hurts-people-color-and-women-most/ On Jan. 25, the U.S. Court of Appeals for the Fourth Circuit held oral argument in Baltimore v. BP PLC, a case in which the city is seeking to hold BP and other fossil fuel companies liable in state court for their systematic deceptive marketing campaign to hide the catastrophic dangers of their products. The goal of their decades-long, ongoing disinformation campaign: to lock in a fossil-fuel based society—and continue reaping astronomical profits—even during a fossil fuel-driven climate emergency. Other cities, counties, and states have brought similar suits in their state courts, all invoking long-standing state deceptive marketing laws. So why is Baltimore's case before a federal appellate court? The panel's three judges wanted to know—and the answer is more misrepresentation. Mon, 21 Feb 2022 08:37:22 -0500 http://progressivereform.org/cpr-blog/bloomberg-law-op-ed-state-courts-should-hear-cities-climate-deception-lawsuits/ http://progressivereform.org/cpr-blog/bloomberg-law-op-ed-state-courts-should-hear-cities-climate-deception-lawsuits/ The U.S. Environmental Protection Agency's (EPA) Office of Land and Emergency Management recently released its draft Environmental Justice Action (EJ) Plan. The office's EJ Action Plan lays out four goals to guide and motivate its push toward equity and climate justice. These include: strengthening compliance with cornerstone environmental statutes and civil rights laws, integrating environmental justice considerations into OLEM's regulatory process, improving communications and collaborations with communities in carrying out OLEM policies, and carrying out Biden's Justice 40 initiative to deliver 40 percent of clean energy and climate benefits to disadvantaged communities. While well-intentioned, these aspirational goals require filling out. Thu, 17 Feb 2022 08:57:46 -0500 http://progressivereform.org/cpr-blog/epas-environmental-justice-plan-needs-improvement-and-community-review/ http://progressivereform.org/cpr-blog/epas-environmental-justice-plan-needs-improvement-and-community-review/ When the Wake Forest University emergency communications systems called me at 12:01 am on Tuesday, February 1, I could not have guessed that it was about a chemical bomb capable of wiping out blocks and blocks of Winston-Salem, North Carolina. The call warned university students to heed the city’s voluntary evacuation of the 6,500 people living within in a one-mile radius of the Winston Weaver fertilizer plant that was on fire — and in danger of exploding. Thankfully, the fire did not injure anyone, and the bomb did not ignite. Mon, 14 Feb 2022 08:34:48 -0500 http://progressivereform.org/cpr-blog/wake-call-winston-salem-epa-must-act-now-prevent-chemical-disasters/ http://progressivereform.org/cpr-blog/wake-call-winston-salem-epa-must-act-now-prevent-chemical-disasters/ The regulatory system is quite literally democracy in action, as it invites and empowers members of the public to work with their government to implement policies to keep our drinking water free of contaminants, ensure that the food on store shelves is safe to eat, prevent crooked banks from cheating customers, and much, much more. Thu, 10 Feb 2022 08:44:00 -0500 http://progressivereform.org/cpr-blog/washington-monthly-op-ed-regulatory-government-democratic-government/ http://progressivereform.org/cpr-blog/washington-monthly-op-ed-regulatory-government-democratic-government/ A few years ago, Roschelle Powers took a routine trip to visit her mom, Roberta, at her nursing home in Birmingham, Alabama. When Roschelle opened the door, she found her mother vomiting, disoriented -- and clutching a handful of pills. Roberta’s son, Larry, visited a few days later and found his mom alone and unresponsive. She died soon after – with 20 times the recommended dose of her diabetes medication in her blood. The Powers family charged the nursing home with misconduct, but the company denied responsibility -- and the family couldn’t take their case to court because they had signed a contract that robbed them of their right to a free and fair trial. Instead, contractual legalese forced them to settle their dispute in a rigged system of arbitration rather than in an impartial court of law. My colleagues and I share this story, chronicled in a New York Times investigation of forced arbitration, in the opening pages of our new report about the disproportionate toll this widespread practice has on marginalized and vulnerable groups. Wed, 09 Feb 2022 08:03:01 -0500 http://progressivereform.org/cpr-blog/forcing-people-settle-disputes-under-arbitration-harms-marginalized-groups-most/ http://progressivereform.org/cpr-blog/forcing-people-settle-disputes-under-arbitration-harms-marginalized-groups-most/ Last week, my colleagues and I advocated for a pair of clean water bills in Maryland and Virginia, which were spurred by research completed by the Center for Progressive Reform (CPR). This two-part blog series explains why. Part I, which ran yesterday, explores our collaborative work to protect clean drinking water in Maryland. Today, we look at our efforts to protect Virginia’s health and environment from toxic chemical spills. Tue, 08 Feb 2022 08:26:59 -0500 http://progressivereform.org/cpr-blog/bills-to-protect-waterways-public-health-md-va-part-ii/ http://progressivereform.org/cpr-blog/bills-to-protect-waterways-public-health-md-va-part-ii/ Last week, my colleagues and I advocated for a pair of clean water bills in Maryland and Virginia, which were spurred by research completed by the Center for Progressive Reform (CPR). One would create a Private Well Safety Program in Maryland, and the other would create an aboveground chemical storage tank registration program in Virginia. Both laws are sorely needed. This two-part blog series explains why. Today’s piece looks at our efforts to protect clean drinking water in Maryland; check back tomorrow for Part II, which explores our collaborative efforts to protect Virginians from toxic chemical spills. Mon, 07 Feb 2022 08:01:22 -0500 http://progressivereform.org/cpr-blog/bills-to-protect-waterways-public-health-md-va-part-i/ http://progressivereform.org/cpr-blog/bills-to-protect-waterways-public-health-md-va-part-i/ In recent decades, the U.S. Supreme Court has become increasingly interventionist on issues relating to the appointment and removal of officials. Nondelegation arguments have also escalated and even non-constitutional doctrines such as Chevron are debated in constitutional terms. But according to originalist scholars, who say that the Constitution should be understood based on its meaning at the time of drafting, these are necessary developments. Although I am not an originalist, I had assumed that the originalist case must be a powerful one to justify such a forceful effort to overturn existing precedent. That turns out to have been a mistake on my part. Writing a book on presidential power led me to take a much closer look at the historical record and the recent scholarship on these questions. The work of scholars such as Nicholas Bagley, Daniel Birk, Julian Mortensen, Nicolas Parrillo, and Jed Shugerman, as well as that of their critics, have made me realize that originalist arguments for presidential appointments and removal power and nondelegation positions are not only debatable, but in some cases really shaky. Thu, 03 Feb 2022 08:34:26 -0500 http://progressivereform.org/cpr-blog/misuse-history-undercut-modern-regulatory-state/ http://progressivereform.org/cpr-blog/misuse-history-undercut-modern-regulatory-state/ During the Trump administration, the U.S. Department of the Interior undermined its statutory obligations to protect lands and natural resources managed by the federal government. It also accelerated the extraction of fossil fuels from federal lands and constructed barriers to a shift to renewable energy, hindering efforts to abate climate disruption. On March 15, 2021, the Senate confirmed Deb Haaland as new secretary of the department, which houses the National Park Service, the Fish and Wildlife Service, and the Bureau of Land Management (BLM) -- three agencies that together are responsible for managing millions of acres of some of the nation's most precious terrain. Before Haaland's confirmation, the Center for Progressive Reform identified five priorities for the department. Here is an update on progress so far. Wed, 02 Feb 2022 08:17:34 -0500 http://progressivereform.org/cpr-blog/interior-departments-promising-unfinished-business/ http://progressivereform.org/cpr-blog/interior-departments-promising-unfinished-business/ Virginia's recent environmental and climate laws have been heralded as among the nation's most progressive. In recent years, Virginia passed landmark laws supporting renewable energy and environmental justice and joined the Regional Greenhouse Gas Initiative, priming it to address the challenges posed by growing flood risks, climate-related disasters, and industry-related public health crises. However, Gov. Glenn Youngkin's election has shrouded Virginia's green future in gray. Tue, 01 Feb 2022 11:40:21 -0500 http://progressivereform.org/cpr-blog/youngkin-threatens-virginias-climate-resilience-and-environmental-justice-gains/ http://progressivereform.org/cpr-blog/youngkin-threatens-virginias-climate-resilience-and-environmental-justice-gains/ Climate change is quickly evolving into climate catastrophe, and there’s a narrow window of time to do something about it. While the world works on solutions, there’s surprisingly little focus on the chemical industry, which accounts for roughly 7% of global greenhouse gas emissions -- as well as other environmental harms. Tue, 01 Feb 2022 08:21:47 -0500 http://progressivereform.org/cpr-blog/the-revelator-op-ed-why-the-chemical-industry-is-an-overlooked-climate-foe-and-what-to-do-about-it/ http://progressivereform.org/cpr-blog/the-revelator-op-ed-why-the-chemical-industry-is-an-overlooked-climate-foe-and-what-to-do-about-it/ The idea that unelected judges rather than an elected U.S. President should resolve "major questions" that arise in the course of executing law makes no sense. And the idea that major questions should be resolved to defeat policies that the two Houses of the U.S. Congress and the President have agreed to makes even less sense. Yet, the so-called "major questions doctrine" endorsed by the U.S. Supreme Court's current majority suggests that the rule of law only governs minor cases, not matters of "vast economic and political significance." In important cases, the Court has abandoned the role that the Administrative Procedure Act assigns it—checking the executive branch when it contravenes the policies that Congress and the President have approved. Instead, it has assumed the role of constraining the faithful execution of the law based on unpredictable judicial fiats. Mon, 31 Jan 2022 13:41:36 -0500 http://progressivereform.org/cpr-blog/major-questions-and-juristocracy/ http://progressivereform.org/cpr-blog/major-questions-and-juristocracy/ The Office of Information and Regulatory Affairs (OIRA) oversees government regulation across the federal government. Some portray it as a guardian of rationality, others as biased in favor of industry. Public information about OIRA is so limited that it's impossible to know one way or the other, due to the veil of secrecy that surrounds the place. Mon, 31 Jan 2022 08:38:19 -0500 http://progressivereform.org/cpr-blog/black-box-oira/ http://progressivereform.org/cpr-blog/black-box-oira/ On the same day, the U.S. Supreme Court issued decisions governing requests for emergency stays of two rules protecting Americans from COVID-19. Both rules relied on very similar statutory language, which clearly authorized protection from threats to health. Both of them presented strikingly bad cases for emergency stays. Yet, the Court granted an emergency stay in one of these cases and denied it in the other. These decisions suggest that the Court applies judicial discretion unguided by law or traditional equitable considerations governing treatment of politically controversial regulatory cases. Fri, 28 Jan 2022 13:21:23 -0500 http://progressivereform.org/cpr-blog/death-law-and-equity/ http://progressivereform.org/cpr-blog/death-law-and-equity/ On Feb. 28, the Supreme Court will hear oral arguments in the first of an expected wave of cases challenging governmental action to address the climate crisis. The court’s grant of four petitions seeking review in this case -- two by coal companies and two by states -- portends that the six conservative justices will erect significant barriers to meaningful climate policy and will continue to interfere with democratic governance in disregard of the rule of law. Wed, 26 Jan 2022 08:55:07 -0500 http://progressivereform.org/cpr-blog/slate-op-ed-supreme-courts-plan-block-climate-action-we-havent-even-taken-yet/ http://progressivereform.org/cpr-blog/slate-op-ed-supreme-courts-plan-block-climate-action-we-havent-even-taken-yet/ Following the announcement that the Bureau of Land Management will cap abandoned oil and gas wells on public lands, CPR is taking a look at the other top issues BLM and its new director, Tracy Stone-Manning, must address. Fri, 21 Jan 2022 09:19:04 -0500 http://progressivereform.org/cpr-blog/key-federal-agency-takes-steps-protect-public-lands-curb-climate-change/ http://progressivereform.org/cpr-blog/key-federal-agency-takes-steps-protect-public-lands-curb-climate-change/ A global movement is underway to protect 30 percent of the Earth's lands and waters by 2030. More than seventy countries support this goal to combat climate change and slow the pace of species extinction, both of which are accelerating at an unprecedented rate. The two threats are closely intertwined. The greatest drivers of species extinction are climate change and habitat loss; by the same token, the loss of intact, functioning habitat and biodiversity diminishes the capacity for climate resilience. In the United States, one of President Biden's earliest executive orders, issued in his first week in office, established a goal to conserve at least 30 percent of U.S. lands and water and 30 percent of U.S. ocean areas by 2030. The order proclaims an "all of government" approach to strengthening climate resilience and biodiversity while promoting environmental justice and economic growth. Thu, 13 Jan 2022 08:24:53 -0500 http://progressivereform.org/cpr-blog/biden-30-x-30-initiative-freshwater-resources/ http://progressivereform.org/cpr-blog/biden-30-x-30-initiative-freshwater-resources/ On the morning of January 9, 2014, residents of Charleston, West Virginia, noticed an unusual licorice-like odor in their tap water. Within hours, a federal state of emergency was declared as 300,000 West Virginia residents were advised to avoid contact with their tap water, forcing those affected to rely on bottled water until the water supply was restored over one week later. As detailed in our recent report, Tanks for Nothing: The Decades-long Failure to Protect the Public from Hazardous Chemical Spills, the West Virginia Legislature moved quickly to address demands for increased regulatory oversight of aboveground chemical storage tanks (ASTs). With the memory of the spill still fresh in the minds of legislators and constituents, West Virginia enacted the Aboveground Storage Tank Act in 2014. The program primarily serves two major functions: to enact and enforce standards to reduce the risk of a future spill, and to make information about regulated tanks available to state regulators and the public. Wed, 12 Jan 2022 10:10:36 -0500 http://progressivereform.org/cpr-blog/states-should-act-protect-people-and-our-environment-unregulated-chemical-tanks/ http://progressivereform.org/cpr-blog/states-should-act-protect-people-and-our-environment-unregulated-chemical-tanks/ The Biden administration announced on Monday that it would not meet a February target date to issue a revised definition of federal jurisdiction under the Clean Water Act. It still plans to issue a revised definition later in the year. That sounds like a very technical issue. But it actually determines the extent to which the federal government can prevent water pollution and protect wetlands across the nation. The Biden proposal basically calls for case-by-case decisions about federal jurisdiction. It's also the latest chapter in one of the most snarled-up regulatory issue of our times. Thu, 06 Jan 2022 11:34:53 -0500 http://progressivereform.org/cpr-blog/quagmire-clean-water-act-jurisdiction/ http://progressivereform.org/cpr-blog/quagmire-clean-water-act-jurisdiction/ Scholars and policymakers should recognize the democratic benefits of public comments. Mon, 20 Dec 2021 10:12:38 -0500 http://progressivereform.org/cpr-blog/democracy-rulemaking-and-outpourings-comments/ http://progressivereform.org/cpr-blog/democracy-rulemaking-and-outpourings-comments/ In an era when most Supreme Court opinions are sharply divided, recently the high court unanimously rejected Mississippi’s claim against Tennessee in a long-running dispute over the groundwater that lies beneath both states in a common aquifer. Thu, 09 Dec 2021 12:28:50 -0500 http://progressivereform.org/cpr-blog/memphis-ca-oped-scotus-resolves-groundwater-dispute-btw-ms-tn/ http://progressivereform.org/cpr-blog/memphis-ca-oped-scotus-resolves-groundwater-dispute-btw-ms-tn/ More than 100 organizations, including the Center for Progressive Reform, are calling for major transformations to the chemical industry — a significant yet overlooked contributor to the climate crisis and toxic pollution in communities. What are the threats and how can reforms take shape? Policy Analyst Dary Minovi explains. Thu, 09 Dec 2021 10:01:59 -0500 http://progressivereform.org/cpr-blog/cpr-partners-call-climate-justice-reforms-chemical-industry/ http://progressivereform.org/cpr-blog/cpr-partners-call-climate-justice-reforms-chemical-industry/ Across the country, hundreds of thousands of aboveground storage facilities containing hazardous chemicals — such as arsenic, formaldehyde, and trichloroethylene — are not subject to state or federal rules designed to prevent and mitigate spills. These storage tanks sit along our industrialized waterfronts and at agricultural supply depots in our rural communities, threatening the health and safety of nearby residents, many of whom are low-income people of color. It's beyond time for the U.S. Environmental Protection Agency and states like Virginia to take action. Wed, 08 Dec 2021 08:12:54 -0500 http://progressivereform.org/cpr-blog/aboveground-chemical-storage-tanks-threaten-communities-time-epa-and-states-act/ http://progressivereform.org/cpr-blog/aboveground-chemical-storage-tanks-threaten-communities-time-epa-and-states-act/ Over the last four decades, small government ideologues have waged a coordinated attack against government. The strategy has paid off: Public approval ratings of all three branches of government are at all-time lows. Nevertheless, the federal government still manages to get things done on a day-to-day basis, and that is primarily due to the so-called 4th branch of government — the administrative and regulatory state that employs 2 million workers, invests trillions of dollars each year on things like air pollution monitoring and cutting-edge clean energy research, and makes rules that protect us all. Thu, 02 Dec 2021 08:52:22 -0500 http://progressivereform.org/cpr-blog/strengthening-4th-branch-government/ http://progressivereform.org/cpr-blog/strengthening-4th-branch-government/ Carbon capture use and storage is at the center of the national climate policy debate, promoted by the oil and gas industry, the private sector, and even some environmental organizations as a solution to the climate crisis. The federal infrastructure package that President Biden recently signed into law appropriates more than $10.3 billion for the nationwide buildout of carbon capture infrastructure. The fossil fuel industry is targeting Louisiana as an emerging hub for carbon capture, mainly because of the large concentration of industrial facilities that emit carbon dioxide in the stretch of land between New Orleans and Baton Rouge. While Louisiana must move quickly and aggressively in pursuit of climate change solutions, deploying carbon capture to reach net-zero emissions is not the answer. A new Center for Progressive Reform policy brief has more on the subject. Wed, 01 Dec 2021 08:29:58 -0500 http://progressivereform.org/cpr-blog/false-promise-carbon-capture-louisiana-and-beyond/ http://progressivereform.org/cpr-blog/false-promise-carbon-capture-louisiana-and-beyond/ Less than two months after oral argument, in its first interstate groundwater case, the Supreme Court unanimously decided that Mississippi must rely on a doctrine known as equitable apportionment if it wants to sue Tennessee over the shared Middle Claiborne Aquifer. In an opinion by Chief Justice John Roberts, the court squarely rejected Mississippi's claim that Tennessee is stealing Mississippi's groundwater, noting that it had "'consistently denied' the proposition that a State may exercise exclusive ownership or control of interstate waters." As expected, the court's opinion in Mississippi v. Tennessee is short -- 12 pages, half of which recount the long history of the case. Nevertheless, in this first opinion about states' rights to interstate aquifers, the court made three important decisions that are likely to guide future interstate disputes over natural resources. Tue, 23 Nov 2021 16:26:48 -0500 http://progressivereform.org/cpr-blog/dispute-over-groundwater-court-tells-mississippi-its-equitable-apportionment-or-nothing/ http://progressivereform.org/cpr-blog/dispute-over-groundwater-court-tells-mississippi-its-equitable-apportionment-or-nothing/ Confirming expectations, the Supreme Court on Monday unanimously denied Mississippi’s claim that Tennessee is stealing its groundwater. If Mississippi wants to pursue its groundwater battle with Tennessee, it will have to file a new complaint with the court asking for an equitable apportionment of the Middle Claiborne Aquifer, which lies beneath Mississippi, Tennessee, and other states. Tue, 23 Nov 2021 09:06:37 -0500 http://progressivereform.org/cpr-blog/court-unanimously-favors-tennessee-groundwater-dispute-mississippi/ http://progressivereform.org/cpr-blog/court-unanimously-favors-tennessee-groundwater-dispute-mississippi/ During a historic hearing before the U.S. House Committee on Oversight and Reform on October 28, the executives of ExxonMobil, Chevron, Shell, BP, and the American Petroleum Institute (API), refused to admit to their decades-long climate disinformation campaign that is now well-documented in publicly available documents uncovered by journalists and researchers. If that weren’t enough, the executives continued to deny climate science under oath, albeit with a slight twist from their previous disinformation campaign. Instead of denying the science establishing that fossil fuels are driving the climate crisis, they’re now denying the science establishing the urgent need for a rapid transition away from fossil fuels. In other words, they’re still lying -- a strategy that was on full display in this blockbuster hearing. Mon, 22 Nov 2021 14:05:21 -0500 http://progressivereform.org/cpr-blog/fossil-fuel-industry-continues-deny-climate-science-climate-justice-under-oath/ http://progressivereform.org/cpr-blog/fossil-fuel-industry-continues-deny-climate-science-climate-justice-under-oath/ Despite President Biden’s bold climate commitments at home and COP26, his administration and Congress have much more work to address climate change and to make climate justice a reality. Thu, 18 Nov 2021 09:02:05 -0500 http://progressivereform.org/cpr-blog/us-uses-cop26-signal-leadership-climate-more-action-needed/ http://progressivereform.org/cpr-blog/us-uses-cop26-signal-leadership-climate-more-action-needed/ Although vaccination rates continue to rise and coverage on COVID-19 is fading away from prominent news dashboards, our rates are still higher than in summer 2020. While we still adapt to living and working with COVID-19, we must prepare for future public health emergencies so we do not lose another year figuring out our response. Tue, 16 Nov 2021 11:33:07 -0500 http://progressivereform.org/cpr-blog/maryland-matters-op-ed-learning-lessons-protect-workers-through-pandemics/ http://progressivereform.org/cpr-blog/maryland-matters-op-ed-learning-lessons-protect-workers-through-pandemics/ Our system of environmental regulation divides up regulation of a single substance based on each of its environmental impacts. Thus, the regulatory system sees the "trees," not the "forest." That muddies the waters when we are talking about regulatory priorities, strategies, and long-term goals. It can also lead to framing issues in ways that may weaken environmentalist arguments, since the various harms of a substance or activity get fragmented into different silos. Fossil fuels are a case in point. Mon, 15 Nov 2021 15:31:30 -0500 http://progressivereform.org/cpr-blog/aggregating-harms-fossil-fuels/ http://progressivereform.org/cpr-blog/aggregating-harms-fossil-fuels/ Effective climate change mitigation depends critically on the ability to substitute electricity for gasoline as the primary transportation fuel and to substitute carbon-free fuels for fossil fuels as the country’s primary source of electricity. But the nation’s electricity transmission grid is woefully inadequate to accomplish these important tasks, and the U.S. regulatory system renders it impossible for regulators and clean energy advocates to implement the necessary expansion of grid capacity. Most sources of carbon-free electricity are located a long distance away from the places where most people live and work. Studies indicate that the United States can provide carbon-free electricity to major population centers only by adding transmission lines to the grid. Thu, 11 Nov 2021 09:24:39 -0500 http://progressivereform.org/cpr-blog/need-change-jurisdiction-over-us-electric-grid/ http://progressivereform.org/cpr-blog/need-change-jurisdiction-over-us-electric-grid/ Late Friday, the House passed President Biden's infrastructure bill, the Build Back Better law. As The Washington Post aptly observed, the bill is the biggest climate legislation to ever move through Congress. It also attracted key support from some Republicans, which was essential to passing it in both houses of Congress. Biden is pushing for an even bigger companion bill, but the infrastructure bill is a huge victory in its own right. One major area of spending is transportation. Some of that goes for roads and bridges. But as The Washington Post reports, there's a lot of money for rail and mass transit. Mon, 08 Nov 2021 14:00:04 -0500 http://progressivereform.org/cpr-blog/climate-bill-inside-infrastructure-bill/ http://progressivereform.org/cpr-blog/climate-bill-inside-infrastructure-bill/ Unless you're deeply immersed in administrative law, you may not have heard of the major questions doctrine. It's a legal theory that conservative judges have used with increasing rigor to block important regulatory initiatives. The doctrine places special obstacles on agency regulation of issues of "major economic and political significance." Thu, 04 Nov 2021 13:24:37 -0400 http://progressivereform.org/cpr-blog/major-questions-about-major-questions-doctrine/ http://progressivereform.org/cpr-blog/major-questions-about-major-questions-doctrine/ Our society has finally reached a turning point on climate. I’m not referring to the “point of irreversibility” about which the United Nations warns us: In nine short years, the cascading impacts of climate change will trigger more and greater impacts -- to the point of no return. Rather, we have reached the turning point of political will for climate action. There is no going back to climate passivity or denialism. Choosing to electrify and greenify is a progressive agenda, a mainstream agenda, and an industry agenda -- though all of these agendas differ. Thu, 28 Oct 2021 08:56:01 -0400 http://progressivereform.org/cpr-blog/turning-point-climate-and-center-progressive-reform/ http://progressivereform.org/cpr-blog/turning-point-climate-and-center-progressive-reform/ Cost-benefit analysis is required for all major regulations. It's also highly controversial, as well as being a mysterious procedure unless you're an economist. These FAQs will tell you what you need to know about how cost-benefit analysis (CBA) fits into the regulatory process, how it works, and why it's controversial. Mon, 25 Oct 2021 12:12:20 -0400 http://progressivereform.org/cpr-blog/cost-benefit-analysis-faqs/ http://progressivereform.org/cpr-blog/cost-benefit-analysis-faqs/ In the actual work of crafting the regulatory safeguards that protect our environment and health, cost-benefit analysis has been largely ineffectual and irrelevant. Indeed, its ineffectiveness has been so profound as to prompt even its most ardent practitioners and proponents to question whether it has any impact on agency decisions at all. Meanwhile, it plays at best a minor role in the legal standards that actually govern agency decision-making. Despite all this, a certain cost-benefit orthodoxy has become remarkably entrenched in environmental policy circles. Especially in an era when so many progressive ideas are in ascendance, why does the idea of regulatory review based on cost-benefit analysis have such staying power? Tue, 19 Oct 2021 09:54:47 -0400 http://progressivereform.org/cpr-blog/shaky-legal-and-policy-foundations-cost-benefit-orthodoxy-environmental-law/ http://progressivereform.org/cpr-blog/shaky-legal-and-policy-foundations-cost-benefit-orthodoxy-environmental-law/ Over the last 40 years, the U.S. regulatory system has played an increasingly influential role in redefining our political and economic relationships in fundamentally neoliberal terms. A key but often overlooked institutional force behind this development is the peculiar form of cost-benefit analysis that now predominates in regulatory practice. Building a new regulatory system befitting our vision of a post-neoliberal America requires a formal rejection of prevailing cost-benefit analysis in favor of a radically different approach -- one that invites public participation, permits open and fair contestation of competing values at the heart of policy debates, and recognizes and honors our social interdependencies. Thu, 14 Oct 2021 08:16:50 -0400 http://progressivereform.org/cpr-blog/post-neoliberal-regulatory-analysis-post-neoliberal-world/ http://progressivereform.org/cpr-blog/post-neoliberal-regulatory-analysis-post-neoliberal-world/ Cost-benefit analysis (CBA) is inherently classist, racist, and ableist. Since these are foundational problems with CBA, and are not simply issues with its implementation, they can never be fixed by mere methodological improvements. Instead, the ongoing modernization of centralized regulatory analyses must focus on "moving beyond" CBA, and not on fixing it or improving it. Thus, in implementing President Biden's memorandum on Modernizing Regulatory Review (the Biden Memorandum), the Office of Management and Budget (OMB) should make explicit that regulatory review no longer requires CBA, even—as will be true in the typical case—when regulatory review does demand economic analysis as part of a holistic, multi-factor regulatory impact analysis. Mon, 11 Oct 2021 11:03:12 -0400 http://progressivereform.org/cpr-blog/modernizing-regulatory-review-beyond-cost-benefit-analysis/ http://progressivereform.org/cpr-blog/modernizing-regulatory-review-beyond-cost-benefit-analysis/ Mississippi v. Tennessee is not only the Supreme Court’s first oral argument of the 2021-22 term, but it is also the first time that states have asked the court to weigh in on how they should share an interstate aquifer. The court’s decision could fundamentally restructure interstate groundwater law in the United States for decades -- or the case could be dismissed immediately on the grounds that Mississippi has failed to allege the proper cause of action. Fri, 01 Oct 2021 11:14:51 -0400 http://progressivereform.org/cpr-blog/in-term-opener-justices-will-hear-mississippis-complaint-that-tennessee-is-stealing-its-groundwater/ http://progressivereform.org/cpr-blog/in-term-opener-justices-will-hear-mississippis-complaint-that-tennessee-is-stealing-its-groundwater/ Stormwater is growing problem in the Chesapeake Bay watershed, creating toxic runoff and flash flooding. The Maryland Department of Environment has the opportunity to protect people, but it hasn't yet. Thu, 30 Sep 2021 10:41:24 -0400 http://progressivereform.org/cpr-blog/when-it-rains-it-pours-maryland-has-growing-climate-justice-problem-stormwater/ http://progressivereform.org/cpr-blog/when-it-rains-it-pours-maryland-has-growing-climate-justice-problem-stormwater/ President Biden has made climate change and racial justice central themes of his presidency. No doubt with these problems in mind, he has signaled a desire to rethink the process and substance of White House review of agencies' regulatory actions. On his very first day in office, Biden ordered administrative agencies to ensure that this review does not squelch regulatory initiatives nor brush aside "racial justice, environmental stewardship, human dignity, equity, and the interests of future generations." At the same time, however, Biden reaffirmed the "basic principles" of a Clinton-era executive order on White House regulatory review, subjecting agencies' major rules to a cost-benefit test. These twin inclinations -- toward acting boldly on climate change and racial justice, and toward judging regulation using cost-benefit analysis -- are trains racing toward each other on the same track. Two entrenched, perhaps even inherent, features of cost-benefit analysis practically ensure that the benefits of regulatory measures addressing climate change and racial injustice will be diminished and deformed in the process of "valuing" them. Thu, 30 Sep 2021 08:39:09 -0400 http://progressivereform.org/cpr-blog/climate-change-racial-justice-and-cost-benefit-analysis/ http://progressivereform.org/cpr-blog/climate-change-racial-justice-and-cost-benefit-analysis/ A recent Maryland law requires the state's Commissioner of Labor and Industry, in consultation with its Occupational Safety and Health Advisory Board, to develop and adopt regulations that require employers to protect employees from heat-related illness caused by heat stress. Those standards are due by October 2022. The law also requires the state to hold four public meetings to collect input from residents. This month, the Maryland Occupational Safety and Health Division (MOSH) scheduled those meetings, and I testified at the September 20 session. Wed, 29 Sep 2021 12:05:20 -0400 http://progressivereform.org/cpr-blog/pushing-heat-stress-standard-maryland-and-beyond/ http://progressivereform.org/cpr-blog/pushing-heat-stress-standard-maryland-and-beyond/ Addresses by national leaders to the United Nations General Assembly are often broad expressions of lofty ideals, and President Joe Biden's speech Tuesday fell squarely into that category. It covered an extraordinary panoply of global challenges and policy concerns, including controlling the COVID-19 pandemic, rebuilding and strengthening global alliances and regional initiatives, curbing terrorism, protecting human rights (including the rights of women and workers) and lifting up democracy. Biden also committed the United States to advancing human dignity, combating corruption and seeking peace in areas of conflict around the world. Thu, 23 Sep 2021 08:42:36 -0400 http://progressivereform.org/cpr-blog/hill-op-ed-bidens-idealistic-un-message-climate-change/ http://progressivereform.org/cpr-blog/hill-op-ed-bidens-idealistic-un-message-climate-change/ When voters’ voices are suppressed, lawmakers and agency officials may be less responsive to their needs — and more likely to favor those of corporations and other special interests. Fortunately, last week Senate Democrats unveiled new voting rights legislation. Historically, voters overwhelmingly favor protective regulations, therefore more voting means a stronger regulatory system. Wed, 22 Sep 2021 10:26:26 -0400 http://progressivereform.org/cpr-blog/why-attack-voting-rights-threatens-our-regulatory-system/ http://progressivereform.org/cpr-blog/why-attack-voting-rights-threatens-our-regulatory-system/ Maryland is home to more than 1,000 industrial facilities, including landfills, auto salvage yards, hazardous waste treatment, storage sites, and various types of manufacturing and processing plants. When it rains or snows, toxic pollution often runs off these facilities and enters nearby waterways and groundwater resources, negatively impacting aquatic life, nearby communities, and drinking water sources. The problem -- known as industrial stormwater pollution -- is dire in Maryland. More industrial facilities are being built in the state, and precipitation intensity is increasing more quickly in the Chesapeake Bay region than elsewhere in the United States, threatening public and environmental health. Low-income people and communities of color are at heightened risk. Tue, 21 Sep 2021 15:19:10 -0400 http://progressivereform.org/cpr-blog/lion-missing-its-teeth-maryland-must-crack-down-industrial-polluters/ http://progressivereform.org/cpr-blog/lion-missing-its-teeth-maryland-must-crack-down-industrial-polluters/ Assumptions about the human condition shape the legal rules and institutions that structure the economy and state. By re-centering law on a clearer understanding of the human subject, vulnerability theory can strengthen law and political economy (LPE) efforts to address accelerating threats to democracy, equality, and the environment. Tue, 14 Sep 2021 08:25:46 -0400 http://progressivereform.org/cpr-blog/countering-neoliberal-logic-vulnerable-human-subject/ http://progressivereform.org/cpr-blog/countering-neoliberal-logic-vulnerable-human-subject/ The Biden administration is looking to make big regulatory changes, not least regarding climate change. Yet the White House office overseeing regulations is vacant. The obscurely named Office of Regulatory Affairs and Information (OIRA) has to sign off on all significant regulations. Even the dilatory Donald Trump had nominated a permanent administrator by July of his first year. Biden's delay in filling this important office is hard to defend. Fri, 10 Sep 2021 07:56:33 -0400 http://progressivereform.org/cpr-blog/vacancy-at-oira/ http://progressivereform.org/cpr-blog/vacancy-at-oira/ On August 29, Hurricane Ida pummeled Louisiana’s coastline with winds as high as 150 miles per hour and a storm surge of up to nine feet, flooding communities and destroying homes. The Category 4 storm displaced thousands of people and left 1 million without power -- all as the coronavirus surge overwhelms hospitals across the state. Amid this chaos, Louisianans faced yet another hazard -- the risk of exposure to toxic pollutants from explosions, flares, and accidental releases at disabled, damaged, or flooded industrial facilities. Thu, 09 Sep 2021 08:21:50 -0400 http://progressivereform.org/cpr-blog/double-disaster-idas-wake-will-epa-finally-ensure-industrial-facilities-prepare-climate-change/ http://progressivereform.org/cpr-blog/double-disaster-idas-wake-will-epa-finally-ensure-industrial-facilities-prepare-climate-change/ Soaring rates of voluntary resignations, widespread labor shortages, and the ubiquity of "Help Wanted" signs put the "labor" back in the Labor Day holiday this year, as employers struggle to respond to a jobs market that seems, for once, to have given workers the upper hand. Story after story blames current labor market conditions on "burnout," an occupational phenomenon the World Health Organization describes as a combination of symptoms that includes emotional exhaustion and reduced personal accomplishment. "Burnout -- and opportunity -- are driving record wave of quitting," the Deseret (Utah) News declared in August. But what if the diagnosis -- or rather, what we call it -- is a symptom of the real problem? Naming the phenomenon for its toll on workers, rather than for the working conditions that drive it, skews our understanding of what's wrong and how to fix it. Wed, 08 Sep 2021 08:32:59 -0400 http://progressivereform.org/cpr-blog/workers-arent-burned-out-theyre-getting-burned-lack-policy-protections/ http://progressivereform.org/cpr-blog/workers-arent-burned-out-theyre-getting-burned-lack-policy-protections/ Economists are scratching their heads furiously — why is there a labor shortage amidst high unemployment? Everywhere employers are posting “Help Wanted” signs but still face shortage of workers. The last six months of worker disillusionment with the job market shows a new source of power: the power of workers when they withdraw the services of their labor. Mon, 06 Sep 2021 09:11:37 -0400 http://progressivereform.org/cpr-blog/labor-day-2021-may-be-best-year-labor-generation/ http://progressivereform.org/cpr-blog/labor-day-2021-may-be-best-year-labor-generation/ Ask just about any New Orleanian to name the most exasperating thing about the aftermath of Hurricane Ida, and you’ll get the same answer. It isn’t the floodwater. Or the roof damage. It’s something more familiar but equally as threatening to life, health and property: power failure. Fri, 03 Sep 2021 15:10:51 -0400 http://progressivereform.org/cpr-blog/washington-post-op-ed-new-orleans-power-outage-shows-how-urgently-climate-resilient-power-grid-needed/ http://progressivereform.org/cpr-blog/washington-post-op-ed-new-orleans-power-outage-shows-how-urgently-climate-resilient-power-grid-needed/ No federal standard currently protects workers from heat or heat stress. Between 1992 and 2017, heat killed 815 workers on the job and seriously injured 70,000 more, according to federal records. It's time to support America's laborers and their many contributions workers make to America’s strength, prosperity, and wellbeing. Here's how. Fri, 03 Sep 2021 13:38:29 -0400 http://progressivereform.org/cpr-blog/this-labor-day-lets-protect-workers-from-extreme-heat/ http://progressivereform.org/cpr-blog/this-labor-day-lets-protect-workers-from-extreme-heat/ The U.S. Senate faces a long to-do list when it reconvenes next month. U.S. Rep. Gerry Connolly, D-Fairfax,  wants to be sure an important but fairly obscure environmental health bill makes the list. Thu, 02 Sep 2021 16:31:27 -0400 http://progressivereform.org/cpr-blog/virginia-mercury-op-ed-cleaning-up-forever-chemicals-must-be-a-federal-priority/ http://progressivereform.org/cpr-blog/virginia-mercury-op-ed-cleaning-up-forever-chemicals-must-be-a-federal-priority/ Environmental justice advocates have long recognized that procedural fairness is just as important as substantive fairness. That’s why they are concerned with not only how environmental benefits and harms are distributed, but also how those decisions are made. Given its attention to procedural fairness, the National Environmental Policy Act breathes life into environmental justice principles, even though it preceded the formal launch of the environmental justice movement by more than a decade. Thu, 02 Sep 2021 09:54:44 -0400 http://progressivereform.org/cpr-blog/hill-op-ed-legal-pillar-environmental-justice-now-under-attack/ http://progressivereform.org/cpr-blog/hill-op-ed-legal-pillar-environmental-justice-now-under-attack/ In the first segment of its Sixth Assessment, issued earlier this month, the IPCC report states that it "provides a full and comprehensive assessment of the physical science basis of climate change that builds upon the previous assessments ... and considers new information and knowledge from the recent scientific literature, including longer observational data sets, new scenarios and model results." This authoritative document draws conclusions that are deeply alarming. While (like all prior assessments) the report does not recommend specific remedial actions, the latest report implicitly suggests an urgent need for collective action to avoid natural devastation and massive future human catastrophes. Mon, 30 Aug 2021 13:03:33 -0400 http://progressivereform.org/cpr-blog/hill-op-ed-un-glasgow-summit-may-be-our-last-chance-prevent-self-created-climate-disaster/ http://progressivereform.org/cpr-blog/hill-op-ed-un-glasgow-summit-may-be-our-last-chance-prevent-self-created-climate-disaster/ Virginia is home to thousands of unregulated and aging aboveground hazardous chemical storage tanks, which, when exposed to storms or floods, may be at greater risk of failing or spills. This risk — and the threat it poses to our health and safety — is rising as our climate changes. Mon, 30 Aug 2021 09:51:35 -0400 http://progressivereform.org/cpr-blog/virginia-must-act-now-hold-polluters-accountable/ http://progressivereform.org/cpr-blog/virginia-must-act-now-hold-polluters-accountable/ This November, New York voters will decide whether to enshrine an explicit environmental right in their state constitution. If adopted, the new section will read, “Every person shall have a right to clean air and water, and a healthful environment.” New York would join several other states, as well as the United Nations and roughly 150 countries across the globe, in recognizing a fundamental human right to breathe clean air and drink clean water. We all deserve to live in healthy communities. Yet, the grim reality is that Black communities, communities of color, and low-income communities frequently have to fight tooth-and-nail for these basic human rights. This situation is neither accidental nor inevitable. New York City is a clear example. Mon, 23 Aug 2021 07:41:07 -0400 http://progressivereform.org/cpr-blog/building-environmental-justice-nyc/ http://progressivereform.org/cpr-blog/building-environmental-justice-nyc/ The Interdisciplinary Panel on Climate Change report released Aug. 9 declared that evidence is now unequivocal that human activity is driving global warming, and immediate steps must be taken to mitigate profound changes. Karen C. Sokol, professor at Loyola University New Orleans College of Law and CPR Member Scholar, says two essential international policies must be taken -- ending fossil fuel production and providing communities with the resources to adapt. Wed, 18 Aug 2021 08:08:04 -0400 http://progressivereform.org/cpr-blog/bloomberg-law-oped-ipcc-rpt-intl-climate-policies/ http://progressivereform.org/cpr-blog/bloomberg-law-oped-ipcc-rpt-intl-climate-policies/ The surging COVID-19 delta variant is sending thousands of people to the hospital, killing others, and straining several states' hospital systems to their breaking point. The climate crisis is hurting people, communities and countries as we write this piece, with apocalyptic wildfires, crippling droughts and raging floodwaters. Systemic racism continues unabated, leading to vast economic and environmental injustices. It's beyond time for urgent action, but to get there, the federal government must reform the opaque, biased method it uses to evaluate our nation's public health, economic and environmental protections. Tue, 17 Aug 2021 08:05:33 -0400 http://progressivereform.org/cpr-blog/hill-oped-regulatory-analysis-too-important-be-left-economists/ http://progressivereform.org/cpr-blog/hill-oped-regulatory-analysis-too-important-be-left-economists/ On Aug. 9, the Intergovernmental Panel on Climate Change (IPCC) published the first installment of its latest report assessing the state of scientific knowledge about the climate crisis. As United Nations Secretary-General António Guterres put it in a press release, the report is nothing less than “a code red for humanity.” The good news is that the science indicates that there is still time to respond by taking drastic and rapid action to shift from fossil fuels to clean, renewable energy and to keep people safe in the face of the dangerous changes in the climate system that have already taken place. That will be expensive, and a group of senators led by Sen. Chris Van Hollen (D-Md.) plan to introduce legislation based on the well-established legal and moral principle that those who cause damage should pay for it. Fri, 13 Aug 2021 07:26:57 -0400 http://progressivereform.org/cpr-blog/hill-op-ed-policy-significance-polluters-pay-climate-fund-act/ http://progressivereform.org/cpr-blog/hill-op-ed-policy-significance-polluters-pay-climate-fund-act/ The latest report out of the UN's Intergovernment Panel on Climate Change is harrowing. But it's not too late to take action. Here are some of the policies the United States should implement immediately. Thu, 12 Aug 2021 10:45:47 -0400 http://progressivereform.org/cpr-blog/climate-policy-recs/ http://progressivereform.org/cpr-blog/climate-policy-recs/ In his first week of office, President Joe Biden signed an executive order, "Tackling the Climate Crisis at Home and Abroad," that responds to climate change with an emphasis on environmental justice. Notably, the order creates a government-wide "Justice40 initiative," which sets a goal for disadvantaged communities most impacted by climate change and pollution to receive at least 40 percent of overall benefits from federal investments in climate and clean energy. Mon, 09 Aug 2021 07:36:10 -0400 http://progressivereform.org/cpr-blog/biden-justice40-initiative-big-deal/ http://progressivereform.org/cpr-blog/biden-justice40-initiative-big-deal/ In February, Georgia Rep. Hank Johnson, chair of the House Judiciary Subcommittee on Courts, Intellectual Property, and the Internet, reintroduced the FAIR Act. The legislation would protect workers and consumers by eliminating restrictive "forced arbitration" clauses in employment and consumer contracts. The bill would also allow consumers and workers to agree to arbitration after a dispute occurs if doing so is in their best interests. A companion measure has been introduced in the Senate. Arbitration -- a process where third parties resolve legal disputes out of court -- is a standard precondition to most, if not all, nonunion employment and consumer contracts. It's considered "forced" because few consumers and workers are aware that they are agreeing to mandatory arbitration when they sign contracts. In most contracts, arbitration is imposed on a take-it-or-leave-it basis before any dispute even occurs; refusing to sign is rarely a realistic option because other sellers and employers impose similar arbitration requirements. Mon, 02 Aug 2021 08:47:38 -0400 http://progressivereform.org/cpr-blog/protect-workers-and-consumers-congress-must-end-forced-arbitration/ http://progressivereform.org/cpr-blog/protect-workers-and-consumers-congress-must-end-forced-arbitration/ On Wednesday, Oregon Governor Kate Brown signed a package of four clean energy bills. These bills move the state to the forefront of climate action. They ban new fossil fuel plants and set aggressive targets for the state's two major utilities, requiring emission cuts of 80 percent by 2030, 90 percent by 2035 and 100 percent by 2040. This is not only a major step forward for the state; it should also clear the path to closer collaboration among Washington State, Oregon, and California on climate issues. Fri, 30 Jul 2021 07:38:08 -0400 http://progressivereform.org/cpr-blog/oregon-takes-big-step-forward/ http://progressivereform.org/cpr-blog/oregon-takes-big-step-forward/ President Joe Biden has invited four CPR scholars — leaders in climate and energy justice, natural resources, and environmental law — to serve in his administration. Thu, 29 Jul 2021 12:06:57 -0400 http://progressivereform.org/cpr-blog/cpr-member-scholars-tapped-biden-administration-key-justice-and-environmental-advisory-positions/ http://progressivereform.org/cpr-blog/cpr-member-scholars-tapped-biden-administration-key-justice-and-environmental-advisory-positions/ Recent events have dramatized the urgent need for prompt and bold action to respond to climate change. Raging rivers in Germany and Belgium, unheard of "heat domes" over large sections of North America, and uncontrolled wildfires and flooding around the globe, have made it absolutely clear that humankind must quickly limit the emission of greenhouse gases and adapt to the increasingly calamitous consequences of climate disruption. In view of this situation, what is and ought to be the substance of environmental leadership? Thu, 22 Jul 2021 14:39:57 -0400 http://progressivereform.org/cpr-blog/hill-op-ed-leadership-and-challenge-climate-change/ http://progressivereform.org/cpr-blog/hill-op-ed-leadership-and-challenge-climate-change/ On the last day of June, an entire village in Canada was engulfed in a wildfire after the country recorded its highest temperature ever. That same day, Greenpeace UK's investigative team published a striking tape of two Exxon senior employees' candid accounts of the fossil fuel industry's surreptitious lobbying efforts to undermine climate action. Thu, 22 Jul 2021 08:09:30 -0400 http://progressivereform.org/cpr-blog/what-fossil-fuel-industry-deception-tells-us-about-how-survive-climate-emergency/ http://progressivereform.org/cpr-blog/what-fossil-fuel-industry-deception-tells-us-about-how-survive-climate-emergency/ 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. Wed, 21 Jul 2021 08:07:28 -0400 http://progressivereform.org/cpr-blog/biden-said-he-wants-modernize-regulatory-review-epas-chemical-disaster-rule-great-place-start/ http://progressivereform.org/cpr-blog/biden-said-he-wants-modernize-regulatory-review-epas-chemical-disaster-rule-great-place-start/ 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. Tue, 20 Jul 2021 07:53:30 -0400 http://progressivereform.org/cpr-blog/specter-dictatorship-behind-unitary-executive-theory/ http://progressivereform.org/cpr-blog/specter-dictatorship-behind-unitary-executive-theory/ U.S. Environmental Protection Agency (EPA) Administrator Michael Regan recently announced that $50 million from the American Rescue Plan will go toward environmental justice programs at the agency. This award will be accompanied by another $50 million to enhance air quality monitoring to target health disparities. This funding will double the amount of grant dollars for EPA’s environmental justice programs by adding $16.7 million in grants and funding for other programs such as school bus electrification, expanded environmental enforcement, and drinking water safety improvements. Mon, 19 Jul 2021 11:46:55 -0400 http://progressivereform.org/cpr-blog/environmental-justice-and-covid-19-pandemic-why-epa-needs-funding-boost/ http://progressivereform.org/cpr-blog/environmental-justice-and-covid-19-pandemic-why-epa-needs-funding-boost/ President Joe Biden is breaking the status quo: He has pledged to write a new chapter in America's leadership on climate change. Unlike any other president, he has outlined specific and aggressive targets to reduce carbon emissions and has backed them up with a $2 trillion plan to fight climate change. In the meantime, our climate continues to change rapidly and dramatically, raising the ever more urgent question: Will the politics of climate change shift in time to curb its worst effects, including in states like Georgia? We think it will. Thu, 15 Jul 2021 08:11:37 -0400 http://progressivereform.org/cpr-blog/georgias-activists-color-offer-hope-meaningful-action-climate-justice/ http://progressivereform.org/cpr-blog/georgias-activists-color-offer-hope-meaningful-action-climate-justice/ "When you are at the verge of the abyss, you must be very careful about your next step, because if the next step is in the wrong direction, you will fall." So warned United Nations Secretary-General António Guterres in a recent interview on NBC Nightly News. He was calling on the world's wealthiest nations to meet their obligations under the Paris climate accords to rapidly transition away from fossil fuels and to help developing countries to transition and to adapt to threats that can no longer be averted. Wealthy nations simply must meet these obligations to achieve the Paris goal of holding global temperature rise to a sustainable level. Tue, 13 Jul 2021 08:23:56 -0400 http://progressivereform.org/cpr-blog/strategic-and-moral-failures-biden-administrations-international-climate-initiatives/ http://progressivereform.org/cpr-blog/strategic-and-moral-failures-biden-administrations-international-climate-initiatives/ Executive Director Minor Sinclair welcomes three new board members to the Center for Progressive Reform and highlights their diverse, critical voices and perspectives. Thu, 08 Jul 2021 15:41:24 -0400 http://progressivereform.org/cpr-blog/newest-board-members-bring-environmental-protection-and-climate-justice-expertise/ http://progressivereform.org/cpr-blog/newest-board-members-bring-environmental-protection-and-climate-justice-expertise/ 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. These events pose a severe and growing threat to public and environmental health — and to workers in particular, who are hurt "first and worst." Hundreds of thousands of Americans have been injured, killed, or forced to shelter in place or evacuate in the wake of such disasters in recent decades, and countless others have been needlessly exposed to toxic pollution. Today, the Center for Progressive Reform published a policy brief with Earthjustice and the Union of Concerned Scientists, which contains recommendations to EPA on how to address this problem. Wed, 07 Jul 2021 10:48:04 -0400 http://progressivereform.org/cpr-blog/president-biden-take-action-now-protect-public-double-disasters/ http://progressivereform.org/cpr-blog/president-biden-take-action-now-protect-public-double-disasters/ 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 on July 6. 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. Tue, 06 Jul 2021 13:05:40 -0400 http://progressivereform.org/cpr-blog/biden-white-house-can-make-regulatory-system-anti-racist-heres-how/ http://progressivereform.org/cpr-blog/biden-white-house-can-make-regulatory-system-anti-racist-heres-how/ While most people around the country were enjoying summer, residents of the Pacific Northwest used to joke about "Junuary" -- the cloudy and often rainy June days before the sun made its relatively brief appearance in the region after the Fourth of July. But as I wrote this post last week in Portland, Oregon -- a city set in a temperate rainforest ecosystem of towering trees and ferns -- it was 116 degrees outside, the third consecutive day over 100 degrees and the second in excess of 110. The only time I've personally experienced a comparable temperature was nearly two decades ago when I visited Death Valley National Park with my family. Now Death Valley had come to me. Tue, 06 Jul 2021 07:02:09 -0400 http://progressivereform.org/cpr-blog/pacific-northwest-heat-wave-and-climate-changes-new-normal/ http://progressivereform.org/cpr-blog/pacific-northwest-heat-wave-and-climate-changes-new-normal/ How do we declare our independence from fossil fuels? While there isn't a single silver bullet, there are plenty of legislative and federal actions the United States government can, and should, take. Fri, 02 Jul 2021 06:56:00 -0400 http://progressivereform.org/cpr-blog/declaring-our-independence-fossil-fuels/ http://progressivereform.org/cpr-blog/declaring-our-independence-fossil-fuels/ 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. Thu, 01 Jul 2021 14:17:54 -0400 http://progressivereform.org/cpr-blog/illusions-takings-law/ http://progressivereform.org/cpr-blog/illusions-takings-law/ Environmental justice advocate Sharon Lavigne has 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. Mon, 28 Jun 2021 13:00:21 -0400 http://progressivereform.org/cpr-blog/louisiana-environmental-justice-leader-wins-prestigious-environmental-prize/ http://progressivereform.org/cpr-blog/louisiana-environmental-justice-leader-wins-prestigious-environmental-prize/ 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. Fri, 25 Jun 2021 08:03:13 -0400 http://progressivereform.org/cpr-blog/regulatory-process-faqs/ http://progressivereform.org/cpr-blog/regulatory-process-faqs/ The Center for Progressive Reform stands with all who are working to advance equity and equality for LGBTQ Americans. To commemorate Pride Month, we asked three CPR leaders to weigh in on progress in this area. Thu, 24 Jun 2021 09:56:52 -0400 http://progressivereform.org/cpr-blog/cpr-scholars-call-vigilant-advocacy-protect-lgbtq-gains/ http://progressivereform.org/cpr-blog/cpr-scholars-call-vigilant-advocacy-protect-lgbtq-gains/ 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. Wed, 16 Jun 2021 13:45:22 -0400 http://progressivereform.org/cpr-blog/waters-united-states-20212022-edition-part-ii/ http://progressivereform.org/cpr-blog/waters-united-states-20212022-edition-part-ii/ Recently, 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. Wed, 16 Jun 2021 10:44:21 -0400 http://progressivereform.org/cpr-blog/waters-united-states-20212022-edition-part-i/ http://progressivereform.org/cpr-blog/waters-united-states-20212022-edition-part-i/ Not long ago, the prospects of offshore wind energy seemed lofty, but the industry is finally taking off. As part of his efforts to combat climate change, President Biden has pledged to double offshore wind production by 2030. This commitment stems from the enormous benefits and potential that wind energy can provide as we transition to clean, sustainable energy. Tue, 15 Jun 2021 09:36:57 -0400 http://progressivereform.org/cpr-blog/wind-water-five-benefits-offshore-wind-energy/ http://progressivereform.org/cpr-blog/wind-water-five-benefits-offshore-wind-energy/ The Labor Department’s emergency COVID standard, released today, is too limited and weak to effectively protect all workers from the ongoing pandemic. 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. Thu, 10 Jun 2021 12:58:02 -0400 http://progressivereform.org/cpr-blog/dol-emergency-temporary-standard-too-weak-protect-all-workers-covid19/ http://progressivereform.org/cpr-blog/dol-emergency-temporary-standard-too-weak-protect-all-workers-covid19/ In addition to cleaning up our environment, the U.S. Environmental Protection Agency (EPA) must also clean up the mess the Trump administration left behind. The Biden EPA recently took an important step in this direction by finalizing its plan to rescind a Trump-era rule that would drastically overhaul how it analyzes the rules it develops to implement the Clean Air Act. If implemented, Trump's "benefits-busting" rule would have sabotaged the effective and timely implementation of this popular and essential law, which protects the public from dangerous pollution that worsens asthma and causes other diseases. On June 9, the EPA held a public hearing to gather feedback on rescinding the rule. CPR Member Scholars Rebecca Bratspies and Amy Sinden joined me in testifying in support. Wed, 09 Jun 2021 13:39:46 -0400 http://progressivereform.org/cpr-blog/cpr-scholars-and-staff-back-epas-plan-eliminate-trump-benefits-busting-rule/ http://progressivereform.org/cpr-blog/cpr-scholars-and-staff-back-epas-plan-eliminate-trump-benefits-busting-rule/ Hurricanes Harvey and Maria. California wildfires. Superstorm Sandy. The great Texas blackout. The list goes on. These mega-events dramatize the need to improve our disaster response system. The trends are striking: escalating disaster impacts, more disaster clustering, more disaster cascades, and less predictability. We need to up our game. Lisa Grow Sun and I discuss the implications in a new paper, but here are a few of the key takeaways. Wed, 09 Jun 2021 07:51:39 -0400 http://progressivereform.org/cpr-blog/what-have-we-learned-recent-disasters/ http://progressivereform.org/cpr-blog/what-have-we-learned-recent-disasters/ World Oceans Day marks a time to reflect on how our oceans connect to human and environmental health. This year’s theme of “Life and Livelihoods” comes at a time when our federal government is turning to energy jobs and climate justice. As the BP/Deepwater Horizon oil spill of 2010 showed, the lives and livelihoods of millions are affected by how we manage ocean policy. Eleven years later, will policy adapt to prioritize human and environmental health over business? Tue, 08 Jun 2021 12:00:45 -0400 http://progressivereform.org/cpr-blog/waiting-reckoning-reflections-world-oceans-day-bp-oil-spill-and-worker-safety/ http://progressivereform.org/cpr-blog/waiting-reckoning-reflections-world-oceans-day-bp-oil-spill-and-worker-safety/ Some events last week sent a strong signal that the tide is turning against fossil fuels. Each of the events standing alone would have been noteworthy. The clustering of these events dramatizes an important shift. To paraphrase Churchill, this may not be beginning of the end for fossil fuels, but at least it is the end of the beginning of the campaign against them. Mon, 07 Jun 2021 11:27:05 -0400 http://progressivereform.org/cpr-blog/turning-tide/ http://progressivereform.org/cpr-blog/turning-tide/ In this episode of Connect the Dots, host Rob Verchick and his guests discuss energy policy at different levels of government and who's leading the way in the clean energy journey. Thu, 03 Jun 2021 13:39:27 -0400 http://progressivereform.org/cpr-blog/connect-dots-podcast-explores-clean-energy-policy-and-local-state-and-federal-governance/ http://progressivereform.org/cpr-blog/connect-dots-podcast-explores-clean-energy-policy-and-local-state-and-federal-governance/ Member Scholar Karen Sokol submitted an op-ed to the online outlet, Drilled News, on the Supreme Court's minor procedural ruling in the Baltimore climate case and its potentially major implications. Fri, 28 May 2021 10:06:34 -0400 http://progressivereform.org/cpr-blog/drilled-news-op-ed-the-supreme-courts-obscure-procedural-ruling-in-baltimores-climate-case-explained/ http://progressivereform.org/cpr-blog/drilled-news-op-ed-the-supreme-courts-obscure-procedural-ruling-in-baltimores-climate-case-explained/ Lead can cause neurological damage to young children and developing fetuses. The only really safe level is zero. Because poor children are the most likely to be exposed to this hazard, this is also a major environmental justice issue. The Trump EPA took the position that it could set a hazard level higher than zero because of the cost of reaching a lower threshold. In a split decision, the Ninth Circuit reversed. The statutory issues are complicated, and a dissent raised some reasonable arguments. Ultimately, though, it's hard to believe Congress wanted EPA to misrepresent that a certain level of lead is safe for children when it really isn't. Mon, 24 May 2021 11:50:37 -0400 http://progressivereform.org/cpr-blog/getting-lead-out/ http://progressivereform.org/cpr-blog/getting-lead-out/ In its closing days, the Trump administration issued a rule designed to tilt EPA's cost-benefit analysis of air pollution regulations in favor of industry. Recently, the agency rescinded the rule. The rescission was no surprise, given that the criticisms of the Trump rule by economists as well as environmentalists. EPA's explanation for the rescission was illuminating, however. It sheds some important light on how the agency views the role of cost-benefit analysis in its decisions. Fri, 21 May 2021 09:01:03 -0400 http://progressivereform.org/cpr-blog/cost-benefit-analysis-and-biden-epa/ http://progressivereform.org/cpr-blog/cost-benefit-analysis-and-biden-epa/ In the latest episode of Connect the Dots Season 5, host Rob Verchick and his guests discuss the fiscal complexities and possibilities of a just, equitable transition to clean, renewable energy. When it comes to innovation and clean energy, there’s a wide range of players building new technology and sourcing terrains to scale renewables as wide as the great unknown. Funding for those projects comes from a host of financiers, from banks to private equity firms to, perhaps, everyday consumers. The drive behind financing the energy transition results from a dedicated consortium of political agendas, business prerogatives, and consumer demand. Thu, 20 May 2021 08:23:18 -0400 http://progressivereform.org/cpr-blog/financing-clean-energy-transition-connect-dots-podcast-episode/ http://progressivereform.org/cpr-blog/financing-clean-energy-transition-connect-dots-podcast-episode/ Dirty, polluted stormwater that runs off of industrial sites when it rains is a major cause of pollution to Maryland’s streams and rivers, and ultimately to the Chesapeake Bay. Maryland is home to thousands of such industrial sites, all of which are required by law to obtain a stormwater discharge permit from the Maryland Department of the Environment (MDE) to prevent pollution and protect public and environmental health. Unfortunately, many of these sites do not have a permit. For example, our research in one small area of Anne Arundel County found that only four out of 12 industrial sites possessed a current permit. Of the industrial sites that hold a permit, many are not in compliance with the permit requirements. Between 2017 and 2020, MDE conducted just under 2,000 inspections of permitted sites throughout Maryland and found that more than two-thirds (68%) were violating the terms of their permits. These industrial sites are commonly clustered in urban areas, creating pollution hot spots of runoff that can include heavy metals and other toxins. Such polluted waters threaten the health of those who live nearby, who are more likely to be low income and populated by people of color. Thu, 13 May 2021 12:30:41 -0400 http://progressivereform.org/cpr-blog/baltimore-sun-op-ed-maryland-department-environment-cleaning-its-act-when-it-comes-enforcement/ http://progressivereform.org/cpr-blog/baltimore-sun-op-ed-maryland-department-environment-cleaning-its-act-when-it-comes-enforcement/ Chlorpyrifos is one of the most widely used pesticides in America, although it has been banned in the European Union. Last week, the Ninth Circuit took the extraordinary step of ordering the U.S. Environmental Protection Agency (EPA) point-blank to ban or reduce traces of chlorpyrifos in food. A dissenter accused the majority of misreading the statute in question and abusing its discretion by limiting EPA's options so drastically and giving it only 60 days to act. Warning: The majority and dissenting opinions cover 116 pages, so I'll necessarily be leaving out a lot of details and nuances. Fri, 07 May 2021 08:17:54 -0400 http://progressivereform.org/cpr-blog/ninth-circuit-makes-epa-offer-it-cant-refuse/ http://progressivereform.org/cpr-blog/ninth-circuit-makes-epa-offer-it-cant-refuse/ Companies using fossil fuels like oil, natural gas, and coal are facing heavy pressure to reduce their carbon footprint. If they don’t, they could get hit with financial penalties or be completely shut down. In response, these corporations have come up with a treatment of sorts -- it’s called carbon capture and sequestration, or CCS. The idea is that the industry can continue operating as it always has, but as a caveat, it will install a system to strip carbon from emissions. The carbon will be funneled through pipelines deep into the ground, where it will be buried forever. As a result, plants can keep running, businesses rally on as usual, there’s less pollution in the air, everyone wins. Right? Not exactly. As Connect the Dots host Rob Verchick and his guests discuss in this episode, CCS is not nearly comprehensive enough to reduce emissions at a level and rate necessary to make a difference. Thu, 06 May 2021 08:17:05 -0400 http://progressivereform.org/cpr-blog/connect-dots-season-five-continues-exploration-carbon-capture/ http://progressivereform.org/cpr-blog/connect-dots-season-five-continues-exploration-carbon-capture/ By the time the environmental justice movement began taking shape in the 1980s, communities of color had already been suffering from the disproportionate burdens of pollution for decades. Since then, evidence of racially discriminatory patterns in the distribution of environmental harms has only continued to mount. Tue, 04 May 2021 11:13:23 -0400 http://progressivereform.org/cpr-blog/environmental-forum-when-system-fosters-racial-injustice/ http://progressivereform.org/cpr-blog/environmental-forum-when-system-fosters-racial-injustice/ A week after taking office, President Joe Biden issued an executive order “on tackling the climate crisis” that aims to face the challenge comprehensively and equitably. Tue, 04 May 2021 11:10:09 -0400 http://progressivereform.org/cpr-blog/hill-op-ed-climate-action-supporters-fossil-fuel-industry-not-your-friend/ http://progressivereform.org/cpr-blog/hill-op-ed-climate-action-supporters-fossil-fuel-industry-not-your-friend/ As Maryland heads into the final stretch of a collective effort to clean up the Chesapeake Bay, it has inexplicably passed over its best opportunity in years to modernize regulation of industrial stormwater -- rain and snow that collects toxic pollution as it runs off factories, warehouses, scrap metal dealers, and other industrial sites. Earlier this year, Maryland released a proposed revision of its general water pollution permit, which limits the type and amount of pollutants that facilities can discharge into public waters and sets monitoring and reporting requirements to protect public and environmental health. Unfortunately, the state missed an important opportunity to bring stormwater regulation from the last century into the present -- but it’s not too late to change course. Mon, 03 May 2021 10:46:05 -0400 http://progressivereform.org/cpr-blog/maryland-must-take-stronger-steps-regulate-toxic-stormwater-industrial-sites/ http://progressivereform.org/cpr-blog/maryland-must-take-stronger-steps-regulate-toxic-stormwater-industrial-sites/ April 30 marks President Biden's first 100 days in office. He's appointed a great climate team and is negotiating an infrastructure bill that focuses on climate change. With luck, those actions will produce major environmental gains down the road. There are also some solid gains in the form of actions that have already come to fruition. Here's where things stand. Thu, 29 Apr 2021 13:45:15 -0400 http://progressivereform.org/cpr-blog/biden-and-environment-first-100-days/ http://progressivereform.org/cpr-blog/biden-and-environment-first-100-days/ In 2017, Puerto Rico was hit hard by two major hurricanes, Irma and Maria. First came Irma, a Category 5 storm that pummeled the island, leaving a trail of destruction. Less than two weeks later came Maria, another Category 5 storm that directly hit the island in what became the worst natural disaster in the U.S. territory's history. The storm moved directly across the island, knocking out electricity and inundating towns with floodwaters and mudslides. Historically, Puerto Rico's ability to recover from tropical storms and other disasters has depended on the federal government's efforts to ensure that communities get the funds they need to reignite economic growth and development. However, the Trump administration greatly slowed -- and deliberately obstructed -- Puerto Rico's progress in repairing and rebuilding the island's infrastructure. Thankfully, the Biden administration has reversed course by lifting Trump-era restrictions on disaster relief. Thu, 29 Apr 2021 07:48:48 -0400 http://progressivereform.org/cpr-blog/progress-puerto-rico-biden-administration-lifts-trump-era-restrictions-disaster-relief/ http://progressivereform.org/cpr-blog/progress-puerto-rico-biden-administration-lifts-trump-era-restrictions-disaster-relief/ When I think about climate, I also think about jobs. Jobs that don’t expose workers to toxins, COVID-19, or abuse. Quality jobs for workers and communities that reduce our carbon footprint and facilitate our transition to a clean economy. Jobs with protections and security in a changing economy. We simply cannot protect public health and the environment without addressing workers’ rights. With this in mind, it's perhaps no coincidence that we’re hiring two new policy analysts to enhance our research and advocacy around climate and worker justice. We'd love to have your help finding great candidates for these positions. Please spread the word and maybe even consider applying to one of these jobs yourself! CPR encourages people with underrepresented backgrounds in the nonprofit sector to apply, including people of color. Wed, 28 Apr 2021 08:14:51 -0400 http://progressivereform.org/cpr-blog/climate-equity-and-worker-justice-two-job-openings-cpr/ http://progressivereform.org/cpr-blog/climate-equity-and-worker-justice-two-job-openings-cpr/ President Joe Biden's April 28 speech to a joint session of Congress -- his first major address since his inauguration -- offers him a chance to outline and defend his policy priorities. He should use this opportunity to articulate a positive vision of regulation as an institution within our democracy and to champion the crucial role it plays in promoting the public interest. Tue, 27 Apr 2021 13:06:05 -0400 http://progressivereform.org/cpr-blog/memo-biden-regulation-infrastructure/ http://progressivereform.org/cpr-blog/memo-biden-regulation-infrastructure/ Making Congress functional again is having a moment. The debates over ending the filibuster and legislation to prevent hyper-partisan congressional districts have received the most attention in this space so far. But lawmakers did quietly take an important step forward on mending congressional dysfunction when they reinstated the practice of earmarking the federal budget, reversing a decade-old ban. Lawmakers should build on this fix to the budget process by cracking down on "poison pill" appropriations riders, a gimmick that proliferated in the vacuum left by the earmark ban. Mon, 26 Apr 2021 08:00:57 -0400 http://progressivereform.org/cpr-blog/hill-op-ed-now-earmarks-are-back-its-time-ban-poison-pill-riders/ http://progressivereform.org/cpr-blog/hill-op-ed-now-earmarks-are-back-its-time-ban-poison-pill-riders/ On April 22, the White House confirmed that President Joe Biden will nominate Tracy Stone-Manning to head up the Bureau of Land Management (BLM), a federal agency charged with overseeing national monuments and other public lands, as well as key aspects of energy development. A longtime conservation advocate, Stone-Manning has worked for the National Wildlife Federation, served as chief of staff to former Montana Gov. Steve Bullock and advisor to Sen. Jon Tester, and led Montana's Department of Environmental Quality. Fri, 23 Apr 2021 08:30:18 -0400 http://progressivereform.org/cpr-blog/biden-picks-tracy-stone-manning-to-lead-bureau-land-management/ http://progressivereform.org/cpr-blog/biden-picks-tracy-stone-manning-to-lead-bureau-land-management/ In 2020, the world banded together to fight the COVID-19 pandemic. Now, in 2021, the world continues to change, and we seem to be progressing forward. In turn, the spotlight shifts to another great calamity: climate change. The environmental crisis has made headlines with the Biden administration making climate mitigation and renewable energy top priorities. Scientists and engineers are hard at work creating energy systems that run efficiently, withstand various constraints, and won’t pollute the air. However, as this episode of CPR's Connect the Dots podcast explains, it's also important to look at how we implement these new innovations in a way that’s equitable and purposeful to all. Thu, 22 Apr 2021 08:15:51 -0400 http://progressivereform.org/cpr-blog/connect-dots-season-five-begins-discussion-energy-justice/ http://progressivereform.org/cpr-blog/connect-dots-season-five-begins-discussion-energy-justice/ Racism runs much deeper than policing and law enforcement. Racial injustice is deeply embedded in our nation’s past and present. It is systemic, institutional, and interpersonal, but it is not insurmountable. It’s time for a national reckoning that takes racism and white supremacy seriously and delivers fully enforceable policies that stamp out discrimination in policing and all other institutions in our country. Black Americans and other marginalized people are entitled to the same tenets of life and liberty as guaranteed to white people. Systemic racism and lawlessness by state actors make that impossible. On April 20, a jury found Derek Chauvin guilty of murdering George Floyd, an unarmed Black man, in May 2020. This is one small step toward accountability for those who perpetrate violence against Black people and other marginalized people. Tue, 20 Apr 2021 18:11:20 -0400 http://progressivereform.org/cpr-blog/small-step-toward-accountability-cpr-commends-guilty-verdicts-murder-george-floyd/ http://progressivereform.org/cpr-blog/small-step-toward-accountability-cpr-commends-guilty-verdicts-murder-george-floyd/ Since President Joe Biden assumed office, environmental justice has been at the front and center of his administration. One key initiative: developing better mapping tools to identify communities that may bear a disproportionate burden of toxic pollution and climate change impacts. Biden’s environmental justice (EJ) plan emphasizes the value of these tools and the need to improve them. Tue, 20 Apr 2021 08:21:10 -0400 http://progressivereform.org/cpr-blog/promise-environmental-justice-screening-tools-maryland-and-beyond/ http://progressivereform.org/cpr-blog/promise-environmental-justice-screening-tools-maryland-and-beyond/ Scholars and advocates of color last week hailed the Biden administration’s efforts to ensure that disadvantaged communities reap the benefits of federal climate investments — but added that the administration must be held accountable for following through on it. Wed, 14 Apr 2021 10:42:56 -0400 http://progressivereform.org/cpr-blog/advocates-scholars-color-call-bold-action-end-environmental-racism/ http://progressivereform.org/cpr-blog/advocates-scholars-color-call-bold-action-end-environmental-racism/ At midnight on April 13, Maryland’s 2021 legislative session closed out with the passage of House Bill 1069 that will provide meaningful drinking water protections for tenants who rely on well water. Tue, 13 Apr 2021 14:09:03 -0400 http://progressivereform.org/cpr-blog/maryland-adopts-law-ensure-safe-drinking-water-tenants/ http://progressivereform.org/cpr-blog/maryland-adopts-law-ensure-safe-drinking-water-tenants/ A citizen of the Laguna Pueblo, Deborah Haaland is the first Native American woman to serve as Secretary of the U.S. Department of the Interior. Haaland will oversee the federal agencies that manage nearly 480 million acres of federal public lands, while the head of the U.S. Forest Service in the U.S. Department of Agriculture (USDA) manages the remaining 190 million acres. Haaland and her colleague, Secretary of Agriculture Tom Vilsack, have a tall double-order ahead. In his flurry of first-day executive orders, President Joe Biden announced the entwined goals of addressing racial, economic, and other forms of injustice, as well as tackling the country’s most serious environmental challenges. Tue, 06 Apr 2021 08:51:28 -0400 http://progressivereform.org/cpr-blog/equity-and-justice-should-begin-home/ http://progressivereform.org/cpr-blog/equity-and-justice-should-begin-home/ Last Friday, the Second Circuit Court of Appeals issued an important decision in a lawsuit against the oil industry. New York City had sued oil companies for harms relating to climate change. The appeals court ordered the case dismissed, on the ground that any harm relating to fossil fuels is exclusively regulated by the Clean Air Act. The ruling is a setback for the plaintiffs in similar cases, though how much of a setback remains to be seen. Mon, 05 Apr 2021 12:01:17 -0400 http://progressivereform.org/cpr-blog/appeals-court-nixes-new-york-city-climate-lawsuit/ http://progressivereform.org/cpr-blog/appeals-court-nixes-new-york-city-climate-lawsuit/ A federal district court judge in Minnesota ruled that the USDA acted arbitrarily and capriciously when it eliminated line speed limits vacated the Trump-era rule, showing that there is a limit to high line speeds — and corporate rapaciousness. Fri, 02 Apr 2021 13:08:34 -0400 http://progressivereform.org/cpr-blog/victory-meatpacking-jungle/ http://progressivereform.org/cpr-blog/victory-meatpacking-jungle/ To commemorate Women’s History Month, we’re interviewing women at the Center for Progressive Reform about how they’re building a more just America. This week, we're speaking with Member Scholar Maxine Burkett. Wed, 31 Mar 2021 15:36:52 -0400 http://progressivereform.org/cpr-blog/womens-history-month-qa-with-maxine-burkett/ http://progressivereform.org/cpr-blog/womens-history-month-qa-with-maxine-burkett/ Coal- and gas-fired power plants are a major source of U.S. carbon emissions. The Obama administration devised a perfectly sensible, moderate policy to cut those emissions. The Trump administration replaced it with a ridiculous token policy. The D.C. Circuit appeals court tossed that out. Now what? Tue, 30 Mar 2021 08:13:25 -0400 http://progressivereform.org/cpr-blog/bidens-dilemma-limiting-carbon-existing-power-plants/ http://progressivereform.org/cpr-blog/bidens-dilemma-limiting-carbon-existing-power-plants/ To commemorate Women’s History Month, we’re interviewing women at the Center for Progressive Reform about how they’re building a more just America. This week, we're speaking with Board Member Laurie Ristino. Thu, 25 Mar 2021 14:44:57 -0400 http://progressivereform.org/cpr-blog/womens-history-month-q-board-member-laurie-ristino/ http://progressivereform.org/cpr-blog/womens-history-month-q-board-member-laurie-ristino/ If you ask Supreme Court experts what keeps them up at night, the answer is likely to be the non-delegation doctrine. If you are among the 99.9 percent of Americans who've never heard of it, here's an explainer of the doctrine and what the 6-3 Court might do with it. Thu, 25 Mar 2021 09:05:53 -0400 http://progressivereform.org/cpr-blog/nondelegation-doctrine-and-its-threat-environmental-law/ http://progressivereform.org/cpr-blog/nondelegation-doctrine-and-its-threat-environmental-law/ In a little-noticed move on Day One, President Joe Biden issued a memo designed to institute a more progressive process for developing new regulations. Such an effort is essential, given that timely, effective regulations will play a key role in achieving Biden-Harris administration's policy agenda. To succeed, however, it must also tackle the conservative philosophy that guides our government's rulemaking process. Wed, 24 Mar 2021 08:37:57 -0400 http://progressivereform.org/cpr-blog/bidens-overhaul-effort-should-include-basic-principles-regulation-too/ http://progressivereform.org/cpr-blog/bidens-overhaul-effort-should-include-basic-principles-regulation-too/ To paraphrase French economist Thomas Piketty, the task of evaluating new regulations is too important to leave to just economists. Yet, since the 1980s, White House-supervised regulatory impact analysis has privileged economic efficiency as the primary and often only legitimate objective of federal regulation. The regulatory reform initiative launched by President Joseph R. Biden on his first day in office creates an opportunity to reorient regulatory analysis in ways that both reformers and the public support. Tue, 23 Mar 2021 08:57:38 -0400 http://progressivereform.org/cpr-blog/democratize-regulation-reform-regulatory-analysis/ http://progressivereform.org/cpr-blog/democratize-regulation-reform-regulatory-analysis/ Last week, a Maryland circuit court ruled that the state must regulate and limit ammonia pollution from industrial poultry operations. This landmark decision takes an important step toward protecting the environment and public health in the Old Line State and could spur similar action in other states. Mon, 22 Mar 2021 13:09:30 -0400 http://progressivereform.org/cpr-blog/maryland-court-orders-state-limit-ammonia-pollution-industrial-poultry-operations/ http://progressivereform.org/cpr-blog/maryland-court-orders-state-limit-ammonia-pollution-industrial-poultry-operations/ Women comprise nearly half of Biden’s Cabinet and they are making history as the largest group of women ever to serve on a presidential Cabinet. Here are some of their priorities while in office. Mon, 22 Mar 2021 09:03:13 -0400 http://progressivereform.org/cpr-blog/haaland-granholm-and-other-women-make-history-presidential-cabinet/ http://progressivereform.org/cpr-blog/haaland-granholm-and-other-women-make-history-presidential-cabinet/ To commemorate Women’s History Month, we’re interviewing women at the Center for Progressive Reform about how they’re building a more just America. This week, we're speaking with Member Scholar Sarah Krakoff. Thu, 18 Mar 2021 09:35:17 -0400 http://progressivereform.org/cpr-blog/womens-history-month-q-member-scholar-sarah-krakoff/ http://progressivereform.org/cpr-blog/womens-history-month-q-member-scholar-sarah-krakoff/ A week after taking office, President Joe Biden issued an executive order “on tackling the climate crisis” that includes important measures to address the crisis comprehensively and equitably. Specifically, the order directs the federal government to take a “whole of government” approach to the climate crisis that pursues economic security, ensures environmental justice, and empowers workers. The beginning of such a plan is promising, particularly after four years under an administration that wiped the word “climate” from government websites, rolled back the Obama administration’s steps to address the crisis, and made fossil fuel production a centerpiece of its agenda. But it’s just that — a promising beginning. And it’s already under assault. Mon, 15 Mar 2021 08:34:09 -0400 http://progressivereform.org/cpr-blog/baton-rouge-advocate-op-ed-biden-must-defend-his-climate-policies-industry-attack/ http://progressivereform.org/cpr-blog/baton-rouge-advocate-op-ed-biden-must-defend-his-climate-policies-industry-attack/ To commemorate Women’s History Month, we’re interviewing women at the Center for Progressive Reform about how they’re building a more just America. This week we spoke to Gilonne d'Origny. Fri, 12 Mar 2021 09:34:06 -0500 http://progressivereform.org/cpr-blog/womens-history-month-qa-with-board-member-gilonne-dorigny/ http://progressivereform.org/cpr-blog/womens-history-month-qa-with-board-member-gilonne-dorigny/ Notwithstanding the Freedom of Information Act's primary goal of promoting transparency in government decision-making, the Supreme Court on Thursday ruled by a 7-to-2 vote that the public policy of facilitating agency candor in exercising its expertise in preliminary agency deliberations can outweigh such transparency and accountability concerns. Justice Amy Coney Barrett delivered the 11-page opinion, her first majority opinion since joining the court in October. It was a natural debut given that the case, U.S. Fish and Wildlife Service v. Sierra Club, was the first oral argument that Barrett heard after joining the bench. Tue, 09 Mar 2021 13:41:17 -0500 http://progressivereform.org/cpr-blog/court-favors-deliberative-process-privilege-protections-over-foia-transparency-goals/ http://progressivereform.org/cpr-blog/court-favors-deliberative-process-privilege-protections-over-foia-transparency-goals/ In the United States, many people think the world's worst human rights abuses take place elsewhere. Unless you are among those in the United States who are subjected to such mistreatment. On March 2, human rights experts called the world's attention to some of the most egregious and systematic human rights violations perpetuated here in the United States — and in particular in our neck of the woods in southeast Louisiana. International human rights experts condemned long-standing environmental racism in "Cancer Alley" — a heavily industrialized and polluted corridor along the Lower Mississippi River — and said it must end. Tue, 09 Mar 2021 08:33:23 -0500 http://progressivereform.org/cpr-blog/un-human-rights-experts-call-out-environmental-racism-louisianas-cancer-alley/ http://progressivereform.org/cpr-blog/un-human-rights-experts-call-out-environmental-racism-louisianas-cancer-alley/ International Women’s Day celebrates the changes made by women and calls for action to accelerate women’s equality. This year, International Women’s Day notes that a challenged world is an alert world, and from challenge comes change. Mon, 08 Mar 2021 12:37:58 -0500 http://progressivereform.org/cpr-blog/women-cpr-choose-challenge/ http://progressivereform.org/cpr-blog/women-cpr-choose-challenge/ The COVID pandemic has provided a vivid picture of what happens when ill-prepared governments are suddenly hit with huge responsibilities. Underfunded state and local public health agencies were overwhelmed, while governors and local officials found themselves struggling to obtain and distribute vital supplies, from respirators to vaccines. Efforts to accelerate the transition away from carbon, such as a green stimulus, may run into similar problems if we neglect the agencies that will have to implement policies. Mon, 08 Mar 2021 09:05:46 -0500 http://progressivereform.org/cpr-blog/institutional-capacity-building-energy-transition/ http://progressivereform.org/cpr-blog/institutional-capacity-building-energy-transition/ To commemorate Women’s History Month, we’re interviewing women at the Center for Progressive Reform about how they’re building a more just America. Fri, 05 Mar 2021 09:01:37 -0500 http://progressivereform.org/cpr-blog/womens-history-month-qa-with-member-scholar-hannah-wiseman/ http://progressivereform.org/cpr-blog/womens-history-month-qa-with-member-scholar-hannah-wiseman/ Amid the Sturm und Drang (storm and stress) of politics these days, one fact stands out — a large majority of Americans want more regulatory protection in a wide variety of areas, according to a recent poll of likely voters. The results are consistent with previous polls that indicate that Americans understand the importance of government regulation in protecting them from financial and health risks beyond their control. They also indicate majority support for efforts by the Biden administration to renew government regulation — as well as a stark repudiation of former President Trump’s extreme anti-regulatory agenda. Wed, 03 Mar 2021 09:00:34 -0500 http://progressivereform.org/cpr-blog/hill-op-ed-attention-lawmakers-regulation-more-popular-you-think/ http://progressivereform.org/cpr-blog/hill-op-ed-attention-lawmakers-regulation-more-popular-you-think/ "The social cost of carbon" isn't exactly a household phrase. It's an estimate of the harm caused by emitting a ton of carbon dioxide over the many decades it remains in the atmosphere. That's an important factor in calculating the costs and benefits of climate regulations. For an arcane concept, it has certainly caused a lot of controversy. The Obama administration came up with a set of estimates, which Trump then slashed by 90 percent. In an early executive order, Biden created a task force to revisit the issue. Last week, the task force issued its first report. It's an impressive effort given that Biden is barely a month into his presidency. The document provides a clear overview of the ways in which climate science and climate economics have advanced since the Obama estimates and makes the case for rejecting the Trump administration's revisions. At least one federal court has already rejected those revisions, as well. Tue, 02 Mar 2021 07:57:33 -0500 http://progressivereform.org/cpr-blog/recalculating-cost-climate-change/ http://progressivereform.org/cpr-blog/recalculating-cost-climate-change/ Businesses that violate environmental laws and permits damage our air, land, and water, sometimes irreparably. Yet too often, these polluters aren't held accountable for harming the environment and public health. In Maryland, state officials don't respond to all violations, and, when they do, they aren't always successful. Even when they are successful, fines and other penalties don't necessarily result in behavior change. As a result, Maryland polluters are largely off the hook for the "externalities" of doing business. Mon, 01 Mar 2021 08:17:26 -0500 http://progressivereform.org/cpr-blog/achieving-meaningful-accountability-polluters-maryland/ http://progressivereform.org/cpr-blog/achieving-meaningful-accountability-polluters-maryland/ In the wake of the Texas blackouts, we're seeing a number of familiar moves to deflect blame by the usual suspects -- politicians, regulators, and CEOs. These evasive tactics all begin with a core truth: Eliminating all risk is impossible and would be too expensive even if it weren't. But then they spin that truth in various ways. The result is to obscure responsibility for the disaster and the steps that should be taken going forward. Fri, 26 Feb 2021 08:03:34 -0500 http://progressivereform.org/cpr-blog/three-ways-dodging-responsibility/ http://progressivereform.org/cpr-blog/three-ways-dodging-responsibility/ Seven years ago, public officials in cash-strapped Flint, Michigan, cut city costs by tapping the Flint River as a source of public drinking water. So began the most egregious example of environmental injustice in recent U.S. history, according to Paul Mohai, a founder of the movement for environmental justice and a professor at the University of Michigan School for Environment and Sustainability. Thu, 25 Feb 2021 08:10:56 -0500 http://progressivereform.org/cpr-blog/clean-water-is-a-human-right-lets-start-treating-it-like-one/ http://progressivereform.org/cpr-blog/clean-water-is-a-human-right-lets-start-treating-it-like-one/ Since I began serving on Louisiana’s Climate Initiatives Task Force, charged with finding a way to zero out net greenhouse-gas emissions by 2050, there is one question I get from people more than any other: "C'mon, are you serious?" It's not that Louisianans don't see the need. Sea-level rise could soon swallow our coast, and hurricanes souped up by climate change are now the new normal. The problem is how we see ourselves. Louisiana, I'm reminded, is an oil-and-gas state. Whatever were we thinking? My quick response is Louisiana is really an energy state, with more sun and offshore wind than most of our peers. Wed, 24 Feb 2021 07:52:46 -0500 http://progressivereform.org/cpr-blog/baton-rouge-advocate-op-ed-louisiana-should-get-serious-about-its-climate-crisis/ http://progressivereform.org/cpr-blog/baton-rouge-advocate-op-ed-louisiana-should-get-serious-about-its-climate-crisis/ Since taking office, President Biden has pursued an active agenda to address many urgent matters that require his prompt attention. We hope one important initiative does not get lost in transition: restoring the norms of good governance. Tue, 23 Feb 2021 08:44:55 -0500 http://progressivereform.org/cpr-blog/hill-op-ed-biden-has-power-restore-good-governance/ http://progressivereform.org/cpr-blog/hill-op-ed-biden-has-power-restore-good-governance/ It is now a week out from the start of the massive Texas grid failure that has resulted in numerous deaths; millions of people plunged into darkness; scores of communities without clean water or heat in record cold temperatures; and billions of dollars in catastrophic damage to homes, businesses and the physical infrastructure that supports them. Critical questions surround the causes of this massive disaster and how to plan for the future so that a tragedy of this scale does not happen again. Mon, 22 Feb 2021 13:43:16 -0500 http://progressivereform.org/cpr-blog/lessons-texas-grid-disaster-planning-and-investing-different-future/ http://progressivereform.org/cpr-blog/lessons-texas-grid-disaster-planning-and-investing-different-future/ As the U.S. Senate considers President Joe Biden’s Cabinet nominees, one stands out as much for the position he was appointed to as for his impressive qualifications. Two days before his inauguration, Biden announced that he planned to elevate the director of the Office of Science and Technology Policy (OSTP), often referred to as the president’s science advisor, to Cabinet rank. The move underlines Biden’s break with the previous administration’s de-emphasis and politicization of science, which downplayed climate change, sought to slash climate-related research spending, and crafted rules designed to limit the influence of science in agency decisionmaking. Biden tapped geneticist Eric Lander, who holds a doctorate in mathematics, to lead OSTP into new prominence. Mon, 22 Feb 2021 08:14:20 -0500 http://progressivereform.org/cpr-blog/biden-elevates-science-advisor-cabinet-level-job/ http://progressivereform.org/cpr-blog/biden-elevates-science-advisor-cabinet-level-job/ Intersectional environmentalism is a relatively new phrase that refers to a more inclusive form of environmentalism, one that ties anti-racist principles into sectors that have long profited from overlooking or ignoring historically disenfranchised populations. Fri, 19 Feb 2021 09:41:48 -0500 http://progressivereform.org/cpr-blog/building-thriving-communities-resilient-planet/ http://progressivereform.org/cpr-blog/building-thriving-communities-resilient-planet/ In the midst of this long dark winter, it's heartening to see the Biden administration lay out a bold agenda for a more secure, fair, and sustainable future. Holding the Biden administration to its promise to reform the regulatory process to "ensure swift and effective federal action" to "improve the lives of the American people" is a crucial part of that effort. From her perch on a key congressional committee with oversight over agencies and the rulemaking process, the Delaware Valley's own Rep. Mary Gay Scanlon is well-positioned to do just that. Thu, 18 Feb 2021 13:35:07 -0500 http://progressivereform.org/cpr-blog/philadelphia-inquirer-op-ed-rep-mary-gay-scanlon-should-hold-bidens-feet-fire-regulatory-agenda/ http://progressivereform.org/cpr-blog/philadelphia-inquirer-op-ed-rep-mary-gay-scanlon-should-hold-bidens-feet-fire-regulatory-agenda/ As many of you know, I started as the Center for Progressive Reform's new executive director this month. I am thrilled to join CPR in this historic moment, to commit the next stage of my life to fight for the integrity and strength of our democracy, and to establish, as FDR said 90 years ago, "the purpose of government to see that not only the legitimate interests of the few are protected but that the welfare and rights of the many are conserved." Thu, 18 Feb 2021 08:53:27 -0500 http://progressivereform.org/cpr-blog/minor-sinclair-intro-post/ http://progressivereform.org/cpr-blog/minor-sinclair-intro-post/ When it comes to addressing climate-related flooding, Maryland has made progress. However, its actions to this point don't come close to addressing the impact of flooding — in part because nearly all of the state's coastal land is private and exempt from "coast smart" regulations. Without proactive rules in place to prevent the harms of new development, the state will continue to dole out taxpayer dollars related to emergency response and recovery, and business owners and homeowners will continue to bear the brunt of the damage. Thankfully, there are solutions. Tue, 16 Feb 2021 08:14:39 -0500 http://progressivereform.org/cpr-blog/maryland-should-prevent-flood-loss-public-and-private-land/ http://progressivereform.org/cpr-blog/maryland-should-prevent-flood-loss-public-and-private-land/ As a coastal state, Maryland is especially vulnerable to climate and ocean change — but important environmental protections are woefully out of date, endangering Marylanders' health, safety, economic welfare, and natural resources. Maryland could take a step to rectify that this year. State lawmakers are advancing important legislation that would bring outdated water pollution rules up to speed and protect Marylanders and the environment. Mon, 15 Feb 2021 08:20:13 -0500 http://progressivereform.org/cpr-blog/its-time-update-marylands-outdated-water-pollution-laws/ http://progressivereform.org/cpr-blog/its-time-update-marylands-outdated-water-pollution-laws/ A half century ago, hundreds of Black sanitation workers marched through Memphis carrying signs bearing four small words: "I am a man." Their short slogan carried a powerful message: Low-paid Black workers are human, and they deserve to be treated as such. Their lives, to quote today's activists for racial justice, matter. Fri, 12 Feb 2021 08:49:47 -0500 http://progressivereform.org/cpr-blog/all-labor-has-dignity-its-long-past-time-realize-kings-dream-humane-working-conditions-all/ http://progressivereform.org/cpr-blog/all-labor-has-dignity-its-long-past-time-realize-kings-dream-humane-working-conditions-all/ When the Occupational Safety and Health (OSH) Act was enacted 50 years ago, it was hailed as critical legislation that would make workplaces safer and healthier for all. Thanks to this law, the Occupational Safety and Health Administration (OSHA) has made great strides toward protecting worker health and safety. Unfortunately, the law didn't go far enough then -- and it doesn't go nearly far enough now. Tue, 09 Feb 2021 14:10:34 -0500 http://progressivereform.org/cpr-blog/its-time-give-workers-power-enforce-osh-act/ http://progressivereform.org/cpr-blog/its-time-give-workers-power-enforce-osh-act/ If you’re one of roughly 2 million Marylanders whose drinking water comes from a private well, you or your property owner is responsible for maintaining the well and ensuring its water is safe -- no exceptions. That’s because federal clean water laws don’t cover private wells or small water systems, and state-level protections vary dramatically. In Maryland, those protections are few and far between. Mon, 08 Feb 2021 10:48:42 -0500 http://progressivereform.org/cpr-blog/baltimore-sun-op-ed-legislation-needed-protect-maryland-well-owners/ http://progressivereform.org/cpr-blog/baltimore-sun-op-ed-legislation-needed-protect-maryland-well-owners/ All workers need the ability to earn paid sick days so they can take leave from their jobs to care for themselves or their loved ones when they are sick or injured. The coronavirus pandemic has made the need for this basic right -- guaranteed to workers in other wealthy nations but not here in the United States -- clearer than ever. Paid sick leave is more than a workers' rights issue. It's also a civil rights issue. Fri, 05 Feb 2021 09:25:07 -0500 http://progressivereform.org/cpr-blog/paid-sick-leave-civil-rights-issue-too/ http://progressivereform.org/cpr-blog/paid-sick-leave-civil-rights-issue-too/ To combat the climate crisis and air pollution that so often impacts BIPOC communities, the US must overhaul its infrastructure and energy systems. Thu, 04 Feb 2021 13:14:30 -0500 http://progressivereform.org/cpr-blog/rosa-parks-birthday-look-transit-equity/ http://progressivereform.org/cpr-blog/rosa-parks-birthday-look-transit-equity/ Virginia's General Assembly is more than halfway through its legislative session -- and state lawmakers are considering several important bills that would address environmental justice, pipelines, climate change, and public health. If passed, these bills will establish lasting environmental, health, and climate change protections for Virginia and its communities. Thu, 04 Feb 2021 08:51:28 -0500 http://progressivereform.org/cpr-blog/old-dominion-weighs-bills-curb-climate-change-protect-health-and-environment/ http://progressivereform.org/cpr-blog/old-dominion-weighs-bills-curb-climate-change-protect-health-and-environment/ Since taking office, President Joe Biden has signaled a new openness to the concerns of our nation’s workers -- and we at CPR are joining our allies today in calling on his administration to go much further to make workplace safety a top priority. Wed, 03 Feb 2021 09:18:38 -0500 http://progressivereform.org/cpr-blog/cpr-joins-call-biden-administration-make-workplace-safety-top-priority/ http://progressivereform.org/cpr-blog/cpr-joins-call-biden-administration-make-workplace-safety-top-priority/ As President Biden continues to roll out executive orders prioritizing climate change, it is increasingly clear that there will be a relatively rapid U.S. shift toward renewable energy from the sun, wind and other sources. Indeed, many states are already pushing ahead with ambitious renewable and clean energy policies. These policies will reduce air pollution, spur extensive economic development in rural areas and make progress on the climate front. This "revolution," as Biden calls it, is critical. But the bulk of renewables that have been built in the United States are large, centralized projects requiring thousands of miles of transmission lines -- primarily in rural communities. A revolution that continues to prioritize these projects risks failure. Tue, 02 Feb 2021 14:40:01 -0500 http://progressivereform.org/cpr-blog/hill-op-ed-localizing-green-energy-revolution/ http://progressivereform.org/cpr-blog/hill-op-ed-localizing-green-energy-revolution/ Last week, I joined Maryland Del. Vaughn Stewart (D-Montgomery County) and State Sen. Katie Fry Hester (D-Carroll and Howard counties) to discuss pollution threats to the state’s drinking water and legislation that, if enacted, would create a private well safety program in Maryland. Tue, 02 Feb 2021 08:28:21 -0500 http://progressivereform.org/cpr-blog/cpr-report-fuels-legislation-would-create-well-safety-program-maryland/ http://progressivereform.org/cpr-blog/cpr-report-fuels-legislation-would-create-well-safety-program-maryland/ Big Tobacco’s Master Settlement Agreement in 1998 was the largest civil settlement in the nation’s history and a transformative moment in the industry’s control. The accord reached by 46 states, five United States territories, and the District of Columbia required tobacco manufacturers to pay the states billions of dollars annually in compensation for the public health crisis their products had created. Today, an even bigger crisis looms, with increasing demands for accountability. Over a dozen federal cases have now been filed against oil companies, seeking damages for their role in causing climate change. With one exception, the cases have been brought by states or local governments that claim they and their citizens are suffering harm from climate change. The oil companies have made it clear that they will fight every inch of the way, with all of their considerable resources, against these lawsuits. Mon, 01 Feb 2021 09:34:33 -0500 http://progressivereform.org/cpr-blog/climate-change-lawsuits-against-big-oil-explained/ http://progressivereform.org/cpr-blog/climate-change-lawsuits-against-big-oil-explained/ When President Trump took office in 2017, the Department of the Interior quickly moved to lease nearly all offshore lands for oil and gas development. The map was astounding; for decades, there had been relatively limited drilling in offshore waters, and many state officials and advocates were shocked to see a proposal for such extensive leasing of offshore federal lands. Indeed, notoriously conservative Rick Scott of Florida entered into a handshake deal with former Interior Secretary Ryan Zinke to avoid drilling near the state. Trump's Interior Department also attempted to lease vast swaths of onshore public lands for fossil fuel development. President Biden has predictably followed a different approach, announcing his intent to place a moratorium on oil and gas leasing on federal onshore and offshore lands. This is a sensible solution. Wed, 27 Jan 2021 12:02:04 -0500 http://progressivereform.org/cpr-blog/fossil-fuels-public-lands-benefits-biden-lease-moratorium/ http://progressivereform.org/cpr-blog/fossil-fuels-public-lands-benefits-biden-lease-moratorium/ The Maryland General Assembly is kicking into full gear -- and we at the Center for Progressive Reform are tracking bills that would protect the health and safety of Maryland workers in the food and farm sectors. These protections are urgently needed to protect these workers from COVID-19 infections and keep the public healthy and safe. Wed, 27 Jan 2021 08:18:15 -0500 http://progressivereform.org/cpr-blog/maryland-weighs-legislation-protect-food-and-farm-workers-amid-pandemic/ http://progressivereform.org/cpr-blog/maryland-weighs-legislation-protect-food-and-farm-workers-amid-pandemic/ The Trump administration dedicated itself to deregulation with unprecedented fervor. It rolled back scores of regulations across government agencies, including more than 80 environmental rules. The Biden administration can reverse some of those actions quickly -- for instance, as president, Joe Biden can undo Donald Trump’s executive orders with a stroke of the pen. Undoing most regulatory rollbacks, however, will require a review process that can take years, often followed by further delays during litigation. There is an alternative, but it comes with risks. Mon, 25 Jan 2021 11:33:43 -0500 http://progressivereform.org/cpr-blog/controversial-congressional-review-act/ http://progressivereform.org/cpr-blog/controversial-congressional-review-act/ President Joe Biden named Commissioner Richard Glick as Chair of the Federal Energy Regulatory Commission (FERC) January 21. Glick succeeds Chairman James Danly. The Commission is expected to retain its Republican majority until Commissioner Neil Chatterjee's term is up on June 30. What's next for the agency? Fri, 22 Jan 2021 09:06:37 -0500 http://progressivereform.org/cpr-blog/biden-named-richard-glick-chair-federal-energy-regulatory-commission-whats-next-agency/ http://progressivereform.org/cpr-blog/biden-named-richard-glick-chair-federal-energy-regulatory-commission-whats-next-agency/ The Maryland General Assembly is back in session -- and we at the Center for Progressive Reform are tracking a number of bills that, if passed, will have a lasting impact on the people of Maryland and their environment. Several could also spur other states to improve their own environmental and public health protections. Fri, 22 Jan 2021 09:06:23 -0500 http://progressivereform.org/cpr-blog/maryland-considers-bills-protect-public-environmental-health/ http://progressivereform.org/cpr-blog/maryland-considers-bills-protect-public-environmental-health/ President Joe Biden has tapped three seasoned experts to jumpstart the Occupational Safety and Health Administration (OSHA), the federal government's main worker health and safety agency. Jim Frederick will serve as Deputy Assistant Secretary of OSHA and will head the agency until a permanent Assistant Secretary is confirmed. Frederick’s experience includes over two decades working for the United Steel Workers' health, safety, and environment department. In his latest role, Frederick served as the assistant director and principal investigator for the department. Biden has also named Chip Hughes, former director of the National Institute of Environmental Health Sciences Worker Education and Training Program, as Deputy Assistant Secretary for Pandemic and Emergency Response. This will be a crucial role in the weeks and months ahead. Ann Rosenthal will join the team as Senior Advisor. Rosenthal served as the Associate Solicitor for Occupational Safety and Health at the Department of Labor until 2017 and has decades of legal experience protecting worker health and safety. Thu, 21 Jan 2021 11:13:54 -0500 http://progressivereform.org/cpr-blog/biden-tapped-frederick-hughes-rosenthal-for-oshas-leadership-team-heres-how-they-can-fix-the-agency/ http://progressivereform.org/cpr-blog/biden-tapped-frederick-hughes-rosenthal-for-oshas-leadership-team-heres-how-they-can-fix-the-agency/ The pro-Trump insurrection that took place at the United States Capitol on January 6 was the most serious threat to the rule of law in our country in well over a century. Unless we fully grapple with the conditions and causes that gave rise to it, this threat will linger, waiting for the next spark to reignite it. Wed, 20 Jan 2021 08:25:51 -0500 http://progressivereform.org/cpr-blog/era-small-government-must-end-reflections-capitol-insurrection/ http://progressivereform.org/cpr-blog/era-small-government-must-end-reflections-capitol-insurrection/ Conservatives love to complain about faceless bureaucrats, but blaming bureaucrats for regulations is hopelessly out of date. When Elena Kagan was a professor, she wrote an article called “Presidential Administration.” The article applauded her former boss Bill Clinton for seizing greater control of the regulatory process, away from agencies. That trend has accelerated to the point where the White House controls even the fine details of regulation. Tue, 19 Jan 2021 10:15:17 -0500 http://progressivereform.org/cpr-blog/rethinking-presidential-administration/ http://progressivereform.org/cpr-blog/rethinking-presidential-administration/ Over the last six months, we had the honor of leading the search for a visionary new leader to guide our organization. Our search is over, and we're thrilled to announce that Minor Sinclair will be taking CPR's helm next month. Thu, 14 Jan 2021 09:17:29 -0500 http://progressivereform.org/cpr-blog/cpr-welcomes-new-executive-director-minor-sinclair/ http://progressivereform.org/cpr-blog/cpr-welcomes-new-executive-director-minor-sinclair/ Donald Trump's hostility domestic environmental regulation is notorious. He also stalled or backpedaled on the international front. Here are seven steps that President Biden could take to remedy the situation. Wed, 13 Jan 2021 08:25:32 -0500 http://progressivereform.org/cpr-blog/next-steps-save-global-environment/ http://progressivereform.org/cpr-blog/next-steps-save-global-environment/ 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. Tue, 12 Jan 2021 08:27:41 -0500 http://progressivereform.org/cpr-blog/study-finds-significant-flaws-trump-waters-united-states-rule-provides-legal-support-biden-replacement/ http://progressivereform.org/cpr-blog/study-finds-significant-flaws-trump-waters-united-states-rule-provides-legal-support-biden-replacement/ The Black Lives Matter movement highlights long-standing inequities and amplifies the drumbeat for climate justice and an equitable transition to a clean economy. With the incoming Biden-Harris administration and a growing list of environmental justice advocates at the helm, it's time to move from rhetoric to reality. We offer concrete proposals to turn climate justice goals into climate justice policies. Mon, 11 Jan 2021 08:53:13 -0500 http://progressivereform.org/cpr-blog/hill-op-ed-rhetoric-reality-achieving-climate-justice/ http://progressivereform.org/cpr-blog/hill-op-ed-rhetoric-reality-achieving-climate-justice/ 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. Fri, 08 Jan 2021 08:45:00 -0500 http://progressivereform.org/cpr-blog/andrew-wheelers-trojan-horse-clean-air-act-regulation/ http://progressivereform.org/cpr-blog/andrew-wheelers-trojan-horse-clean-air-act-regulation/ 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 often rely on medical and other private data. CPR urges the incoming Biden administration to repeal this misleading and harmful rulemaking. Thu, 07 Jan 2021 12:10:07 -0500 http://progressivereform.org/cpr-blog/incoming-biden-administration-should-repeal-harmful-epa-censored-science-rule/ http://progressivereform.org/cpr-blog/incoming-biden-administration-should-repeal-harmful-epa-censored-science-rule/ In my previous post, I began my review of 10 key regulatory policy stories to watch out for as 2021 gets underway. In this piece, I wrap up that list and offer some closing thoughts. Mon, 04 Jan 2021 13:15:13 -0500 http://progressivereform.org/cpr-blog/top-ten-regulatory-policy-stories-look-out-2021-part-ii/ http://progressivereform.org/cpr-blog/top-ten-regulatory-policy-stories-look-out-2021-part-ii/ Thanks to the recent presidential election results, I’m able to do something I haven’t done in a long time: look at a new year with something resembling hope and optimism. As noted in my December 21 posts, the Trump administration wreaked havoc on our system of regulatory safeguards in 2020, as it did in previous years. The incoming Biden-Harris administration brings a strong mandate to undo the damage -- and to go further by building a more just and people-centered government that can meet the pressing challenges America faces. Will they seize the moment? Here are the first five of 10 storylines I’ll be following this year. Each could significantly influence efforts to build a regulatory system that can deliver safeguards that the American public expect and deserve. Mon, 04 Jan 2021 07:40:13 -0500 http://progressivereform.org/cpr-blog/top-ten-regulatory-policy-stories-look-out-2021-part-i/ http://progressivereform.org/cpr-blog/top-ten-regulatory-policy-stories-look-out-2021-part-i/ In my last post, I began counting down the top ten most significant developments affecting regulatory policy and public protections from the past year. This post completes the task. Mon, 21 Dec 2020 13:08:30 -0500 http://progressivereform.org/cpr-blog/top-ten-regulatory-policy-stories-2020-part-ii/ http://progressivereform.org/cpr-blog/top-ten-regulatory-policy-stories-2020-part-ii/ This was the year in which many of our worst fears about the Trump administration came to pass. Racial unrest reached a boiling point. The GOP’s attacks on our democracy leading up to and after the election will take decades to fix. And of course, tens of thousands of lives have been needlessly lost to an unprecedented pandemic. It was an ugly year. Not surprisingly, most of 2020’s top regulatory policy stories were ugly too. The incoming Biden-Harris administration can put us back on the right track, but they have a lot of work ahead of them. Here are the first five of this year’s 10 most significant developments affecting regulatory policy and public protections. Mon, 21 Dec 2020 09:31:06 -0500 http://progressivereform.org/cpr-blog/top-ten-regulatory-policy-stories-2020-part-i/ http://progressivereform.org/cpr-blog/top-ten-regulatory-policy-stories-2020-part-i/ 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. Fri, 18 Dec 2020 08:30:03 -0500 http://progressivereform.org/cpr-blog/trump-damaged-epa-heres-how-michael-regan-can-rebuild-it/ http://progressivereform.org/cpr-blog/trump-damaged-epa-heres-how-michael-regan-can-rebuild-it/ President-elect Joe Biden tapped Deb Haaland to head up the U.S. Department of the Interior, which oversees our nation's public lands, wildlife conservation, and key aspects of energy development. Currently a House representative from New Mexico, Haaland has led the national parks, forests, and public lands subcommittee on the House Natural Resources Committee. She would be the first Native American to lead the department. Thu, 17 Dec 2020 15:25:16 -0500 http://progressivereform.org/cpr-blog/biden-nominated-deb-haaland-lead-department-interior-here-are-five-top-priorities-agency/ http://progressivereform.org/cpr-blog/biden-nominated-deb-haaland-lead-department-interior-here-are-five-top-priorities-agency/ President-elect Joe Biden is poised to name Jennifer Granholm to lead the U.S. Department of Energy, which oversees key energy efficiency standards, research, and development. Granholm is a former two-term governor of Michigan and a champion of using a clean energy transition to spur economic growth. Thu, 17 Dec 2020 13:42:07 -0500 http://progressivereform.org/cpr-blog/jennifer-granholm-and-energy-department-can-usher-just-transition-clean-energy-heres-how/ http://progressivereform.org/cpr-blog/jennifer-granholm-and-energy-department-can-usher-just-transition-clean-energy-heres-how/ President-elect Joe Biden is set to name Brenda Mallory to lead the Council on Environmental Quality (CEQ), the White House office that coordinates environmental policy across federal agencies. Mallory has more than three decades of environmental law and policy experience, served as CEQ general counsel under President Obama, and is currently director of regulatory policy at the Southern Environmental Law Center. Here are four things Mallory and CEQ could do right away to coordinate environmental policy across federal agencies and repair an office Donald Trump badly damaged. Thu, 17 Dec 2020 09:42:47 -0500 http://progressivereform.org/cpr-blog/biden-plans-pick-brenda-mallory-lead-white-house-council-environmental-quality-heres-what-she-can-do-boost-public-protections/ http://progressivereform.org/cpr-blog/biden-plans-pick-brenda-mallory-lead-white-house-council-environmental-quality-heres-what-she-can-do-boost-public-protections/ 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. Tue, 15 Dec 2020 08:41:01 -0500 http://progressivereform.org/cpr-blog/restoring-agency-norms/ http://progressivereform.org/cpr-blog/restoring-agency-norms/ In the midst of a global pandemic and increasingly desperate attempts by the Trump administration to subvert the results of the 2020 election, it would be easy to miss a slew of recent news stories on individuals the media has termed "climate refugees." These are people who have been displaced due to catastrophic climate change, or who will be forced to flee as their homes become too hot, too cold, or too dry, or if they become regular targets of massive storms or end up underwater. As many of these stories have highlighted, among those most at risk are the Indigenous peoples of the United States. Yet, there is a potential path out of climate-induced devastation. Mon, 14 Dec 2020 08:08:10 -0500 http://progressivereform.org/cpr-blog/new-strategy-indigenous-climate-refugees/ http://progressivereform.org/cpr-blog/new-strategy-indigenous-climate-refugees/ A recent Ninth Circuit ruling overturned approval of offshore drilling in the Arctic. The ruling may directly impact the Trump administration's plans for oil leasing in the Arctic National Wildlife Refuge (ANWR). By requiring agencies to consider emissions when fossil fuels are ultimately burned, the Court of Appeal's decision may also change the way agencies consider other fossil fuel projects, such as gas pipelines. Fri, 11 Dec 2020 08:30:30 -0500 http://progressivereform.org/cpr-blog/downstream-emissions/ http://progressivereform.org/cpr-blog/downstream-emissions/ 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 the three states we monitored 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 water pollution. Thu, 10 Dec 2020 08:50:31 -0500 http://progressivereform.org/cpr-blog/environmental-enforcement-covid-19-era/ http://progressivereform.org/cpr-blog/environmental-enforcement-covid-19-era/ On October 22, millions of Americans watched the final presidential debate, taking in each candidate's plan for oft-discussed issues like health care, the economy, and foreign policy. Toward the end, the moderator asked the candidates how they would address the disproportionate and harmful impacts of the oil and chemical industries on people of color. President Trump largely ignored the question. But former Vice President Joe Biden addressed it head on, sharing his own experience growing up near oil refineries and calling for restrictions on "fenceline emissions" -- the pollution levels observed at the boundary of a facility's property, which too often abuts a residential neighborhood. Less than three weeks later, Biden was elected president of the United States, making it possible for him to turn his campaign promises into action. Wed, 09 Dec 2020 08:15:04 -0500 http://progressivereform.org/cpr-blog/will-biden-administration-invest-environmental-justice-reforms/ http://progressivereform.org/cpr-blog/will-biden-administration-invest-environmental-justice-reforms/ At long last, we’ve reached “safe harbor” day, when states must resolve election-related disputes. Under federal law, Congress must count votes from states that meet today’s deadline. Donald Trump is essentially out of time to steal a second term; our democracy, it appears, will survive, at least for now. The last four years have been an urgent call to action to reclaim our democracy, to fix it, to reimagine it. The good news is we can use the tools of democracy to do so. The Center for Progressive Reform is launching Policy for a Just America, a major new initiative to repair and reimagine government. We’re developing a series of policy recommendations and other resources to advance justice and equity and create a sustainable future. We’re also using advocacy and media engagement tools to inform the public about the urgent need for reform and how to achieve it across all levels of government. Tue, 08 Dec 2020 08:13:35 -0500 http://progressivereform.org/cpr-blog/democracy-is-fragile-help-us-protect-it/ http://progressivereform.org/cpr-blog/democracy-is-fragile-help-us-protect-it/ Everyone who has studied what agencies in fact have done have concluded that agencies have largely failed in complying with varying retrospective review requirements. What is to be done? The Department of Health and Human Services (HHS) has a proposed answer: absent a retrospective review within a designated period, sunset the regulation. Mon, 07 Dec 2020 08:00:26 -0500 http://progressivereform.org/cpr-blog/hhs-proposes-sunset-regulations-it-fails-review-retrospectively/ http://progressivereform.org/cpr-blog/hhs-proposes-sunset-regulations-it-fails-review-retrospectively/ It's clear that EPA has a central role to play in climate policy, but EPA does not stand alone. Other agencies also have important roles to play. Fortunately, the Biden transition team seems to have come to this realization. Fri, 20 Nov 2020 08:22:52 -0500 http://progressivereform.org/cpr-blog/whole-government-climate-policy/ http://progressivereform.org/cpr-blog/whole-government-climate-policy/ After taking their oaths of office in January, newly minted President Joe Biden and Vice President Kamala Harris will face a number of daunting challenges: the ongoing pandemic and economic downturn; structural racial and ethnic injustice; widening economic inequality; inadequate access to affordable health care; and climate change. And Congress, facing the prospect of divided control, is unlikely to respond with robust legislative solutions that the American people expect and deserve. The good news is that Biden and Harris will be able to meet these challenges head on by revitalizing governance and making effective use of the federal regulatory system. Better still, they can do so in a way that delivers justice and equity for all Americans. Wed, 18 Nov 2020 10:01:39 -0500 http://progressivereform.org/cpr-blog/we-need-uproot-roadblocks-just-equitable-safeguards-here-are-10-things-biden-harris-team-can-do-make-happen/ http://progressivereform.org/cpr-blog/we-need-uproot-roadblocks-just-equitable-safeguards-here-are-10-things-biden-harris-team-can-do-make-happen/ CPR is committed to meaningful public participation in all of America’s democratic institutions. We believe such participation is essential for ensuring more just and effective policies, but also for imbuing those policies with legitimacy and public confidence. Public participation is critical to empowering all Americans to have their say in our centuries-long project of forming a more perfect union. Wed, 04 Nov 2020 12:40:28 -0500 http://progressivereform.org/cpr-blog/cpr-urges-vote-count-continue-free-political-interference/ http://progressivereform.org/cpr-blog/cpr-urges-vote-count-continue-free-political-interference/ With the climate and COVID crises at the fore, state and local environmental regulation and decision-making in has taken on greater weight in Virginia. As CPR Policy Analyst Katlyn Schmitt points out in a new paper, there is still some low-hanging fruit to be picked before Virginians can be equitably served by and participate in the Commonwealth’s environmental decision-making process. Wed, 04 Nov 2020 08:55:32 -0500 http://progressivereform.org/cpr-blog/its-time-tear-down-barriers-sensible-safeguards-equity-and-justice-virginia/ http://progressivereform.org/cpr-blog/its-time-tear-down-barriers-sensible-safeguards-equity-and-justice-virginia/ After 17 years with CPR, media consultant Matt Freeman signs off. Fri, 30 Oct 2020 00:33:37 -0400 http://progressivereform.org/cpr-blog/thanks-journey/ http://progressivereform.org/cpr-blog/thanks-journey/ This week, I’m posting a new web article documenting the arbitrariness and subjectivity that cost-benefit analysis injects into regulatory decision-making, the latest installment in CPR’s Beyond 12866 initiative. Specifically, the piece explains how cost-benefit analysis deploys a wide variety of methodological techniques that can be clumsy, unscientific, ethically dubious, and, too often, downright absurd. Thu, 29 Oct 2020 08:41:19 -0400 http://progressivereform.org/cpr-blog/new-web-article-exposes-pseudoscience-cost-benefit-analysis/ http://progressivereform.org/cpr-blog/new-web-article-exposes-pseudoscience-cost-benefit-analysis/ If you want to know what the world will look like as the climate crisis ramps up, you don't need a crystal ball. In fact, you need look no further than the past few months of 2020. Western states are fighting record-breaking wildfires, major flooding has plagued the Midwest, and we are in the midst of a historic hurricane season. On October 20, CPR convened a group of researchers, advocates, and community organizers to discuss how the increasing frequency of extreme weather may impact coastal communities, especially those near hazardous industrial facilities vulnerable to damage. Wed, 28 Oct 2020 10:03:09 -0400 http://progressivereform.org/cpr-blog/webinar-recap-environmental-justice-and-public-health-implications-extreme-weather-and-toxic-chemicals/ http://progressivereform.org/cpr-blog/webinar-recap-environmental-justice-and-public-health-implications-extreme-weather-and-toxic-chemicals/ Earlier this month, Congress overwhelmingly passed America's Conservation Enhancement Act (ACE). The legislation's dozen-plus conservation initiatives include reauthorizations for important programs that help protect the Chesapeake Bay and wetlands across the country. Thu, 22 Oct 2020 07:29:12 -0400 http://progressivereform.org/cpr-blog/funding-win-chesapeake-bay-clean-efforts/ http://progressivereform.org/cpr-blog/funding-win-chesapeake-bay-clean-efforts/ Dangerous nitrate pollution has contaminated the groundwater that supplies private drinking water wells and public water utilities in several agricultural regions across the United States, posing a significant threat to people's health. A new report from the Center for Progressive Reform (CPR) indicates that this problem has reached Maryland's Lower Eastern Shore, an area that's home to hundreds of concentrated animal feeding operations (CAFOs) and millions of chickens. Wed, 21 Oct 2020 09:41:00 -0400 http://progressivereform.org/cpr-blog/new-report-finds-dangerous-nitrate-pollution-maryland-drinking-water/ http://progressivereform.org/cpr-blog/new-report-finds-dangerous-nitrate-pollution-maryland-drinking-water/ For many of us, the prospect of a Supreme Court with Judge Amy Coney Barrett giving conservatives a solid 6-3 supermajority is nightmare fuel. The consequences extend beyond hot-button social issues, such as women's reproductive rights or individual access to affordable health care. If confirmed, Barrett would likely spur the aggressive pro-business agenda that the Court has pursued under the auspices of Chief Justice John Roberts. A key item on that agenda is overturning something called Chevron deference, which some business groups have made a top priority in their broader campaign to bring about, as former White House Chief Strategist Steve Bannon put it, the "deconstruction of the administrative state." Mon, 19 Oct 2020 08:32:58 -0400 http://progressivereform.org/cpr-blog/will-confirming-judge-barrett-be-death-chevron-deference/ http://progressivereform.org/cpr-blog/will-confirming-judge-barrett-be-death-chevron-deference/ Recently, the Center for Progressive Reform (CPR) launched its Beyond 12866 initiative, which seeks to promote progressive regulatory reform as a key component of the progressive movement’s efforts to build a more socially just and equitable America. To accomplish this goal, though, we must come to grips with how the regulatory system is perpetuating racial injustice and reinforcing race-based inequities. In a new web article, I take this first step by sketching out some of the ways in which cost-benefit analysis has contributed to structural racism in the broader regulatory system. Thu, 15 Oct 2020 10:44:27 -0400 http://progressivereform.org/cpr-blog/new-web-article-explores-racism-regulatory-cost-benefit-analysis/ http://progressivereform.org/cpr-blog/new-web-article-explores-racism-regulatory-cost-benefit-analysis/ Amidst the president and First Lady testing positive for COVID-19, an embarrassing spectacle of a presidential "debate," and a pandemic that has now claimed more than 200,000 lives in the United States and 1 million worldwide, the West Coast wildfires have lost the attention of the national news cycle. But California and nearby states are still very much ablaze. Mon, 05 Oct 2020 08:15:31 -0400 http://progressivereform.org/cpr-blog/we-need-better-protect-communities-climate-crisis-covid-19-and-wildfires/ http://progressivereform.org/cpr-blog/we-need-better-protect-communities-climate-crisis-covid-19-and-wildfires/ In a previous post, I discussed the essentially undemocratic ways that conservatives have come to the brink of a 6-3 majority on the Supreme Court and examined one significant implication for regulatory policy: the likely effect on the Court's view on Chevron deference. In this second post, I explore several other ways the Court could undermine the essential democratic character of the regulatory system. Thu, 01 Oct 2020 08:55:55 -0400 http://progressivereform.org/cpr-blog/how-shifting-winds-scotus-could-undermine-regulatory-system-and-democracy/ http://progressivereform.org/cpr-blog/how-shifting-winds-scotus-could-undermine-regulatory-system-and-democracy/ Last week, Matthew Yglesias published an important piece at Vox explaining the many ways conservatives have succeeded in exploiting fundamentally undemocratic features of our constitutional structure of government to advance their policy agenda. This strategy will have reached its grotesque culmination if they manage to seat Judge Amy Coney Barrett on the U.S. Supreme Court. He’s rightfully angry about the situation -- as should we all be -- but the story he tells, thorough and infuriating as it is, misses an important point: It could actually get much worse. Wed, 30 Sep 2020 08:17:03 -0400 http://progressivereform.org/cpr-blog/regulatory-system-important-part-our-democracy-trump-supreme-court-could-change/ http://progressivereform.org/cpr-blog/regulatory-system-important-part-our-democracy-trump-supreme-court-could-change/ As many of our allies and supporters know, CPR is now in the midst of a nationwide search for our next executive director. We're looking for a dynamic leader prepared to guide our nearly 20-year-old organization into its next stage of growth and impact. Mon, 28 Sep 2020 11:39:41 -0400 http://progressivereform.org/cpr-blog/are-you-cprs-next-executive-director/ http://progressivereform.org/cpr-blog/are-you-cprs-next-executive-director/ For the Member Scholars and staff of the Center for Progressive Reform, Justice Ginsburg's passing is a moment for reflection, a time to celebrate her achievements, mourn what has been lost, and gird for what is to come. Because her death has triggered such an outpouring of emotion, we asked the CPR family to offer reflections on her life and legacy and have gathered them on our website. I encourage you to take a few moments to read them. Fri, 25 Sep 2020 18:14:05 -0400 http://progressivereform.org/cpr-blog/cpr-reflects-justice-ruth-bader-ginsburgs-legacy/ http://progressivereform.org/cpr-blog/cpr-reflects-justice-ruth-bader-ginsburgs-legacy/ On September 24, CPR and Waterkeeper Alliance convened the first in a series of webinars on climate-driven pollution and chemical disaster. The toxic floodwaters phenomenon only exists because of a set of intersecting policy failures, and it will take a bold and sophisticated community of activists to achieve intersecting reforms that prevent the harm of climate-driven pollution. Panelists Jamie Brunkow, Jordan Macha, and Victor Flatt are but a few within that community of climate and environmental advocates and scholars. Fri, 25 Sep 2020 09:00:31 -0400 http://progressivereform.org/cpr-blog/new-webinar-series-toxic-floodwaters-communities-and-advocates-tackle-climate-driven-chemical-disaster/ http://progressivereform.org/cpr-blog/new-webinar-series-toxic-floodwaters-communities-and-advocates-tackle-climate-driven-chemical-disaster/ 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. Thu, 24 Sep 2020 10:30:04 -0400 http://progressivereform.org/cpr-blog/citizen-suits-are-good-regulatory-system-and-we-need-more-them/ http://progressivereform.org/cpr-blog/citizen-suits-are-good-regulatory-system-and-we-need-more-them/ With Sen. Mitt Romney's announcement that he would support consideration of a nominee before the election, it now seems virtually certain that President Trump will be able to appoint a sixth conservative justice. How will that affect future climate policy? Here is a preliminary threat assessment. Tue, 22 Sep 2020 12:14:31 -0400 http://progressivereform.org/cpr-blog/fighting-global-warming-chilly-judicial-climate/ http://progressivereform.org/cpr-blog/fighting-global-warming-chilly-judicial-climate/ 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.” Yet just last week, EPA postponed an internal speaker series on environmental justice. The reason for this postponement: the appalling suggestion, as per a recent White House Office of Management and Budget (OMB) memo, that recognizing racial disparities in environmental protection is somehow "un-American." Mon, 21 Sep 2020 08:14:19 -0400 http://progressivereform.org/cpr-blog/environmental-justice-not-un-american/ http://progressivereform.org/cpr-blog/environmental-justice-not-un-american/ 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. Thu, 17 Sep 2020 09:38:26 -0400 http://progressivereform.org/cpr-blog/pandemic-spawns-dangerous-relaxation-environmental-regulations/ http://progressivereform.org/cpr-blog/pandemic-spawns-dangerous-relaxation-environmental-regulations/ Presidents since Ronald Reagan have endorsed the assumption that government is too big and too intrusive. Yet the figurative poster children targeted by these chill words have been public health agencies heavily dependent on science-based decision-making as opposed to—as just one example—the U.S. Department of Homeland Security. No president has spent any concerted amount of time explaining how protective public health interventions, including regulation, make life better. No president has praised the civil servants who weather seemingly endless—and enervating—disputes over science and law that make it possible to deliver those protections. For the sake of the civil service and its broken morale, and for the American people, who are exhausted and rendered hopeless by the indiscriminate attacks on the government’s competence to keep the population safe, the next president should use the bully pulpit to advance a positive narrative about government’s accomplishments. Wed, 16 Sep 2020 08:41:34 -0400 http://progressivereform.org/cpr-blog/pandemics-toll-science/ http://progressivereform.org/cpr-blog/pandemics-toll-science/ 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. Tue, 15 Sep 2020 07:58:40 -0400 http://progressivereform.org/cpr-blog/citizen-suits-environmental-settlements-constitution-part-ii/ http://progressivereform.org/cpr-blog/citizen-suits-environmental-settlements-constitution-part-ii/ Over the past few years, the U.S. Department of Justice (DOJ) has shown increasing hostility to the use of Supplemental Environmental Projects (SEPs) in settlements of federal environmental enforcement cases. Aside from a series of ever-tightening SEP policies, however, DOJ has never asserted in court that these projects are unconstitutional. At least not yet. Mon, 14 Sep 2020 07:58:34 -0400 http://progressivereform.org/cpr-blog/citizen-suits-environmental-settlements-constitution-part-i/ http://progressivereform.org/cpr-blog/citizen-suits-environmental-settlements-constitution-part-i/ CPR Board President Rob Verchick is out with a new episode of the Connect the Dots podcast, the first in a new season focused on climate justice. As he puts it, "We’re looking at people living in the cross hairs of climate change, those disproportionately carrying the burden of the world and suffering on a daily basis." Wed, 09 Sep 2020 02:13:23 -0400 http://progressivereform.org/cpr-blog/they-cant-breathe-blog/ http://progressivereform.org/cpr-blog/they-cant-breathe-blog/ As the country prays for relief from the global pandemic, what have we learned that could help us protect the environment better? Most alarming, I would argue, are COVID-19's revelations about the power of conspiracy theories and the antipathy they generate toward scientific experts. Tue, 08 Sep 2020 08:25:27 -0400 http://progressivereform.org/cpr-blog/pandemics-other-casualty-expertise/ http://progressivereform.org/cpr-blog/pandemics-other-casualty-expertise/ In the absence of meaningful action by OSHA, more than a dozen states, including Virginia, have issued emergency safety measures to protect essential workers from the risks of COVID-19. But Maryland – home to one of the largest poultry industries in the nation – is glaringly absent from that list. Thu, 03 Sep 2020 00:05:34 -0400 http://progressivereform.org/cpr-blog/time-maryland-protect-its-poultry-workers/ http://progressivereform.org/cpr-blog/time-maryland-protect-its-poultry-workers/ Writing in The Hill, CPR's Bill Buzbee and Mažeika Patricio Sullivan expand on a point they and their co-authors on an important article in Science magazine in August made ably: The Trump administration is running roughshod over science and law in its efforts to deregulate. Tue, 01 Sep 2020 11:20:34 -0400 http://progressivereform.org/cpr-blog/trump-deregulation-ignores-both-science-and-law/ http://progressivereform.org/cpr-blog/trump-deregulation-ignores-both-science-and-law/ Throughout his time in office, President Donald J. Trump has boasted about cutting regulations. His antagonism to environmental regulation has been particularly virulent and incessant. By one count, Trump Administration agencies have initiated or completed 100 environmental rollbacks. By thwarting often bipartisan legislative environmental protection goals adopted over the course of 50 years, President Trump's actions create serious threats to public health and environmental integrity. The Administration's suppression of public participation in regulatory decision-making has also undercut the ability of people and communities harmed by the Administration's deregulatory frenzy to protect themselves. These anti-environmental and anti-democratic practices converged in the Administration's recent revisions to the Council on Environmental Quality's (CEQ) regulations implementing the National Environmental Policy Act (NEPA). Thu, 27 Aug 2020 08:41:45 -0400 http://progressivereform.org/cpr-blog/trump-administrations-latest-unconstitutional-power-grab/ http://progressivereform.org/cpr-blog/trump-administrations-latest-unconstitutional-power-grab/ Since the very beginning of the pandemic, public health officials have warned of a second wave of COVID infections. With no epidemiological background, I’d say the impact of the virus looks more like a wildfire rolling across a forest seeking fresh fuel. But I fear that I am on the front side of a different sort of second wave. When the pandemic forced shutdowns across the country in March and April, millions of Americans lost their jobs. Some of us, myself included, were fortunate to work for organizations that have been able to weather the storm in a “virtual office.” But with September approaching, and schools forced to navigate uncharted waters, there are hard choices to be made. My wife and I had to make one such choice not long ago, and as a result, I'm leaving the best job I've ever had. Wed, 26 Aug 2020 09:03:29 -0400 http://progressivereform.org/cpr-blog/im-leaving-best-job-ive-ever-had/ http://progressivereform.org/cpr-blog/im-leaving-best-job-ive-ever-had/ This week, CPR is launching its Beyond 12866 initiative, an online platform focused on promoting a progressive vision for rebuilding the U.S. regulatory system. Such a regulatory system will be essential not only to achieving the progressive vision of a more just and equitable society; it will also do the heavy practical lifting needed for implementing key elements of a progressive policy agenda, such as the Green New Deal, Medicare for All, and Black Lives Matter movement. Tue, 25 Aug 2020 11:59:13 -0400 http://progressivereform.org/cpr-blog/beyond-12866-new-cpr-initiative-promote-administrative-agenda-progressive-regulatory-reform/ http://progressivereform.org/cpr-blog/beyond-12866-new-cpr-initiative-promote-administrative-agenda-progressive-regulatory-reform/ The response to the COVID-19 pandemic has driven home some lessons about governance. Those lessons have broader application -- for instance, to climate governance. We can't afford for the federal government to flunk Crisis Management 101 again. Mon, 24 Aug 2020 08:32:29 -0400 http://progressivereform.org/cpr-blog/pandemic-lessons-governance/ http://progressivereform.org/cpr-blog/pandemic-lessons-governance/ 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. Thu, 20 Aug 2020 11:59:18 -0400 http://progressivereform.org/cpr-blog/congressional-review-act-could-be-put-positive-short-term-use-it-should-still-be-repealed/ http://progressivereform.org/cpr-blog/congressional-review-act-could-be-put-positive-short-term-use-it-should-still-be-repealed/ A new article in Science magazine that I co-authored with a number of distinguished environmental science professors from around the country dissects the remarkable disregard for science that the Trump administration displayed in its recent dismantling of the 2015 Clean Water Rule, which protected millions of miles of rivers and acres of wetlands from polluters. Thu, 13 Aug 2020 14:00:02 -0400 http://progressivereform.org/cpr-blog/new-article-lays-bare-failings-trump-navigable-waters-rule/ http://progressivereform.org/cpr-blog/new-article-lays-bare-failings-trump-navigable-waters-rule/ Environmental justice problems require a willingness to acknowledge privilege and adopt a more inclusive approach. I hope this post might prompt you to reflect, read, and start an uncomfortable conversation or two. We face existential environmental threats almost everywhere around the world, and we won’t succeed in combating them unless we’re all fighting together, for a healthy environment that everyone can enjoy. Thu, 13 Aug 2020 10:21:31 -0400 http://progressivereform.org/cpr-blog/my-growing-understanding-environmental-justice/ http://progressivereform.org/cpr-blog/my-growing-understanding-environmental-justice/ Regulatory agencies do not appear to be permeated by overt racism, but structural or institutional racism exists if bias is built into existing institutions. We tend to think of administrative procedures as being neutral between competing points of view, but as the environmental justice movement (EJ) keeps reminding us, this is not necessarily so. It is no secret, for example, that the rulemaking process is dominated by corporate interests, and the same is true of the lobbying that occurs at agencies. Environmental and other public interest groups are hard pressed to match this advocacy. Less noticed is that the fact that there is little or no participation by marginalized communities in rulemaking, although as the pandemic has taught us, our most disadvantaged citizens are the ones that bear the brunt of inadequate government protections. Efforts to reach out and speak to such communities are simply not a regular part of rulemaking practice. True, there is no legal barrier to such participation, but there are considerable structural and economic barriers, which we simply overlook. The administrative process can be more inclusive, and it is time, past time really, to have a discussion how to make it so. Wed, 12 Aug 2020 08:04:22 -0400 http://progressivereform.org/cpr-blog/administrative-procedures-and-racism/ http://progressivereform.org/cpr-blog/administrative-procedures-and-racism/ On October 20, 1994, rising floodwaters from the San Jacinto River in Houston, Texas, caused a pipeline to break open, allowing gasoline to gush out and the river to catch fire. Such flooding is increasingly likely as the effects of climate change take hold, and yet, in the quarter century since that disaster, the federal government has implemented no new regulations to ensure that oil and gas operators are adequately preparing for the risks from more frequent and intense floods caused by the climate crisis. Tue, 11 Aug 2020 08:15:29 -0400 http://progressivereform.org/cpr-blog/toxic-floodwaters-and-pipelines-hampton-roads/ http://progressivereform.org/cpr-blog/toxic-floodwaters-and-pipelines-hampton-roads/ In July, the Maryland Department of Environment (MDE) released the findings of a new ambient air quality monitoring project focused on the state’s Lower Eastern Shore. This effort was announced more than a year ago as a partnership between the Delmarva Poultry Industry (DPI), a trade group for just what it sounds like, and MDE to monitor ammonia and particulate matter emissions from industrial poultry operations. Wed, 05 Aug 2020 12:53:37 -0400 http://progressivereform.org/cpr-blog/industry-sponsored-air-monitoring-study-provides-no-assurances-marylanders-living-near-cafos/ http://progressivereform.org/cpr-blog/industry-sponsored-air-monitoring-study-provides-no-assurances-marylanders-living-near-cafos/ Yesterday, I joined a group of CPR Member Scholars and staff in submitting comments on the Environmental Protection Agency's (EPA) "benefits-busting" proposal, which would drastically overhaul how the agency performs cost-benefit analysis on its biggest Clean Air Act rules. As we explain in our comments, the action is a thinly veiled effort to rig the results of those analyses – more so than they already are – to make it harder to issue appropriately strong safeguards, thereby sabotaging the effective and timely implementation of the Clean Air Act. Tue, 04 Aug 2020 09:25:22 -0400 http://progressivereform.org/cpr-blog/cpr-comments-deliver-scathing-critique-epa-benefits-busting-rule/ http://progressivereform.org/cpr-blog/cpr-comments-deliver-scathing-critique-epa-benefits-busting-rule/ 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. Mon, 03 Aug 2020 16:13:43 -0400 http://progressivereform.org/cpr-blog/cprs-commitment-justice-equity-diversity-and-inclusion/ http://progressivereform.org/cpr-blog/cprs-commitment-justice-equity-diversity-and-inclusion/ Based on its current projected path, Tropical Storm Isaias could bring heavy rains up and down the East Coast, from the Carolinas and Virginia to the Delmarva Peninsula, Pennsylvania, and New Jersey. Along the way, the storm could swamp industrial facilities, coal ash ponds, concentrated animal feeding operations (CAFOs), and more. From Hurricane Florence to Hurricane Harvey and beyond, in the past 15 years, we've seen numerous tropical storms flood unprepared facilities. This has caused significant infrastructure damage and unleashed toxic floodwaters into nearby communities and waterways, threatening public health and making residents sick. Mon, 03 Aug 2020 15:09:22 -0400 http://progressivereform.org/cpr-blog/will-isaias-unleash-toxic-floodwaters-along-east-coast/ http://progressivereform.org/cpr-blog/will-isaias-unleash-toxic-floodwaters-along-east-coast/ In an article headlined, "Dozens of facilities skipping out on EPA pollution monitoring have prior offenses," The Hill reported the following on Wednesday: "More than 50 facilities across the country that have faced enforcement actions for alleged Clean Water Act violations are among those taking advantage of an Environmental Protection Agency (EPA) policy that lets companies forgo pollution monitoring during the pandemic, an analysis by The Hill found. The temporary EPA policy, announced in March, says industrial, municipal and other facilities do not have to report pollution discharges if they can demonstrate their ability to do so has been limited by the coronavirus. The Hill first reported that 352 facilities have skipped water pollution monitoring requirements under the policy, which applies to air pollution as well. Of those facilities, 55 have faced formal enforcement actions in the past five years from either the EPA or state regulators." As disturbing as this news is, it is absolutely no surprise. Wed, 29 Jul 2020 16:14:18 -0400 http://progressivereform.org/cpr-blog/who-could-possibly-have-guessed/ http://progressivereform.org/cpr-blog/who-could-possibly-have-guessed/ Workers presently have no right to bring a lawsuit against employers under the Occupational Safety and Health Act (OSH Act) for failing to provide safe and healthy working conditions. If an employer exposes workers to toxic chemicals or fails to guard a dangerous machine, for example, they must rely on the Occupational Safety and Health Administration (OSHA) to inspect, find a violation, and issue a citation. This omission in the 1970 statute is especially troubling in the context of COVID-19, as workers across the United States continue to face a massive workplace health crisis without any meaningful support from OSHA or most of its state and territorial counterparts. As the pandemic makes crystal clear, workers need and deserve the right to step up and enforce the law when OSHA is unable or unwilling to do its job. In a new CPR report, CPR Member Scholars Michael Duff, Thomas McGarity, Sidney Shapiro, Rena Steinzor, and I call on Congress to update the OSH Act and provide workers with a private right of action. Wed, 29 Jul 2020 09:17:40 -0400 http://progressivereform.org/cpr-blog/empowering-workers-sue-employers-dangerous-working-conditions/ http://progressivereform.org/cpr-blog/empowering-workers-sue-employers-dangerous-working-conditions/ 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. Tue, 28 Jul 2020 09:05:29 -0400 http://progressivereform.org/cpr-blog/cpr-leads-legal-academics-ensuring-citizen-access-justice-wake-covid-19/ http://progressivereform.org/cpr-blog/cpr-leads-legal-academics-ensuring-citizen-access-justice-wake-covid-19/ Donald Trump is no stranger to leaving things worse off than he found them, and this is precisely what his administration now aims to do with the Environmental Protection Agency (EPA), not just one of the most successful government institutions in the history of the United States, but indeed the world. Having worked quickly, if not sloppily, to dismantle every vestige of the Obama administration's efforts to promote cleaner air and water, the Trump EPA is now heading down a path of self-destruction. The agency's proposed "benefits-busting" rule, released early last month, is a big part of this campaign. Wed, 22 Jul 2020 09:26:03 -0400 http://progressivereform.org/cpr-blog/epas-benefit-busting-proposal-would-add-trumps-anti-safeguard-legacy/ http://progressivereform.org/cpr-blog/epas-benefit-busting-proposal-would-add-trumps-anti-safeguard-legacy/ The Maryland Department of the Environment recently issued a general discharge permit that covers pollution from most livestock farms, including concentrated animal feeding operations, across the state through July 2025. Unfortunately, the permit, which went into effect on July 8th, will likely jeopardize the 2025 nitrogen reduction goals under the Chesapeake Bay Total Maximum Daily Load and does not align with Maryland’s Phase III Watershed Implementation Plan commitments. Tue, 21 Jul 2020 13:01:54 -0400 http://progressivereform.org/cpr-blog/maryland-2020-general-permit-missed-opportunity-for-bay-tmdl/ http://progressivereform.org/cpr-blog/maryland-2020-general-permit-missed-opportunity-for-bay-tmdl/ In late June, Minnesota Attorney General Keith Ellison acted in the state's tradition of guarding the public interest when he filed a consumer protection lawsuit against three of the nation’s largest fossil fuel entities — ExxonMobil, Koch Industries, and the American Petroleum Institute (API). In the lawsuit, he seeks to recover civil penalties and restitution for the harm to Minnesotans caused by these companies’ decades-long efforts to intentionally mislead the public about the relationship between fossil fuels, the climate crisis, and the resulting harm to public health, agriculture, infrastructure, and the environment. Tue, 21 Jul 2020 09:44:27 -0400 http://progressivereform.org/cpr-blog/ellison-extends-proud-history-holding-exxonmobil-and-koch-accountable/ http://progressivereform.org/cpr-blog/ellison-extends-proud-history-holding-exxonmobil-and-koch-accountable/ Nine months ago, residents of the Chicago suburb of Willowbrook, Illinois, scored a major victory in their fight to prevent emissions of a dangerous gas, ethylene oxide, into the air they breathe. In fact, their victory appeared to have ripple effects in other communities. But like so many other aspects of life in the midst of a pandemic, things changed in a hurry. Mon, 13 Jul 2020 08:03:41 -0400 http://progressivereform.org/cpr-blog/peril-ethylene-oxide-replacing-one-public-health-crisis-another/ http://progressivereform.org/cpr-blog/peril-ethylene-oxide-replacing-one-public-health-crisis-another/ Workers' compensation was created as a means to an end and not an end in itself. It addressed the outrageous frequency of workplace injury and death caused by railroads in the late 19th/early 20th century. The unholy trinity of employers' affirmative tort defenses – assumption of the risk, contributory negligence, and the fellow servant rule – meant that workers or their survivors were not being compensated adequately or, in many cases, not at all. For this reason, expert American investigators were dispatched to Europe between 1909 and 1911 to study the existing workers' compensation systems there. Our current system was the result. Thu, 02 Jul 2020 08:07:48 -0400 http://progressivereform.org/cpr-blog/will-covid-19-shock-workplace-injury-law/ http://progressivereform.org/cpr-blog/will-covid-19-shock-workplace-injury-law/ When California adopted its first-in-the-nation regulations requiring truck electrification on June 25, the state took a step (or drove a mile) toward reducing pollution in the nation's most vulnerable communities. The new regulation exemplifies a key feature of California's approach: its integration of climate goals, clean air goals, and, at least in this case, environmental justice goals. Wed, 01 Jul 2020 14:10:29 -0400 http://progressivereform.org/cpr-blog/california-keeps-truckin/ http://progressivereform.org/cpr-blog/california-keeps-truckin/ Intro text goes here. Be sure to include "June 18" here, not "today." Fri, 19 Jun 2020 11:40:31 -0400 http://progressivereform.org/cpr-blog/scotus-daca-decision-environmental-rollbacks-regulatory-rule-of-law/ http://progressivereform.org/cpr-blog/scotus-daca-decision-environmental-rollbacks-regulatory-rule-of-law/ Until this week, laws in a majority of U.S. states permitted some form of employment discrimination based on sexual orientation or gender identity. On Monday, the law changed – dramatically, sweepingly, historically – when the U.S. Supreme Court made clear that in this respect the 1964 Civil Rights Act's anti-employment discrimination provisions mean exactly what they say. The Court's ruling in Bostock v. Clayton County, Georgia makes clear that it is illegal to base employment decisions – hiring and firing, the allocation of work, the grouping of employees, compensation practices, harassment – on sexual orientation or identity. The prior patchwork of state laws – most of which permitted some type of employment discrimination based on orientation or identity – is no more. Fri, 19 Jun 2020 10:46:34 -0400 http://progressivereform.org/cpr-blog/supreme-court-affirms-title-vii-protections-lgbtq-community/ http://progressivereform.org/cpr-blog/supreme-court-affirms-title-vii-protections-lgbtq-community/ On June 16, the D.C. Circuit Court of Appeals decided two cases that add to the legal difficulties the Trump EPA will face in court. The difficulties relate to two proposed EPA rules that attempt to hamstring future efforts to impose tighter restrictions on pollution. Both EPA rules rely on vague, general grants of rulemaking authority from Congress. That just became more tenuous. Thu, 18 Jun 2020 14:14:26 -0400 http://progressivereform.org/cpr-blog/dc-circuit-restricts-housekeeping-regs/ http://progressivereform.org/cpr-blog/dc-circuit-restricts-housekeeping-regs/ A blog post published last month by the Chesapeake Bay Program, a collaborative partnership focused on Bay restoration, addressed the many ways that the climate crisis will affect farms in the region. Data from the program shows temperatures on Maryland’s Lower Eastern Shore, home to a high concentration of industrial poultry farms, increased between 2 to 2.5 degrees Fahrenheit, on average, between 1901 and 2017. By 2080, temperatures in the Chesapeake Bay watershed are projected to increase by 4.5 to 10 degrees, posing a serious risk of heat stress to farmworkers and livestock. Thu, 18 Jun 2020 13:52:29 -0400 http://progressivereform.org/cpr-blog/climate-crisis-and-heat-stress-maryland-farms-must-adapt-rising-temperatures/ http://progressivereform.org/cpr-blog/climate-crisis-and-heat-stress-maryland-farms-must-adapt-rising-temperatures/ On June 16, the D.C. Circuit Court of Appeals decided two cases that add to the legal difficulties the Trump EPA will face in court. The difficulties relate to two proposed EPA rules that attempt to hamstring future efforts to impose tighter restrictions on pollution. Both EPA rules rely on vague, general grants of rulemaking authority from Congress. That just became more tenuous. Thu, 18 Jun 2020 08:30:59 -0400 http://progressivereform.org/cpr-blog/dc-circuit-restricts-housekeeping-regulations/ http://progressivereform.org/cpr-blog/dc-circuit-restricts-housekeeping-regulations/ Governments and industries are "reopening" the economy while COVID-19 continues to rage across the United States. At the same time, the lack of effective, enforceable workplace health and safety standards puts workers and the general public at heightened risk of contracting the deadly virus. In a new report from the Center for Progressive Reform, Sidney Shapiro, Michael Duff, and I examine the threats, highlight industries at greatest risk, and offer recommendations to federal and state governments to better protect workers and the public. Wed, 17 Jun 2020 08:23:10 -0400 http://progressivereform.org/cpr-blog/osha-other-agencies-need-step-up-covid-19/ http://progressivereform.org/cpr-blog/osha-other-agencies-need-step-up-covid-19/ 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. Tue, 16 Jun 2020 08:17:35 -0400 http://progressivereform.org/cpr-blog/environmental-justice-impacts-covid-19-delmarva-peninsula/ http://progressivereform.org/cpr-blog/environmental-justice-impacts-covid-19-delmarva-peninsula/ While I suspect that workers' compensation claims, even without the aid of workers' compensation causation presumptions, may fare better than some actuaries suspected (preliminary scuttlebutt of about a 40 percent success rate is higher than I expected), there is no reasonable doubt that large numbers of workers will ultimately go uncovered under workers' compensation during the COVID-19 pandemic. Mon, 15 Jun 2020 08:02:21 -0400 http://progressivereform.org/cpr-blog/pandemic-heroes-compensation-act-2020-preliminary-observations-proposed-bill/ http://progressivereform.org/cpr-blog/pandemic-heroes-compensation-act-2020-preliminary-observations-proposed-bill/ In a June 11 order, the D.C. Circuit Court of Appeals denied an AFL-CIO writ of mandamus asking the court to compel the Occupational Safety and Health Administration (OSHA) to do more to protect workers from infectious diseases, such as COVID-19. The order continues the dangerous status quo of workers laboring with no enforceable protections from the highly contagious and deadly virus. Thu, 11 Jun 2020 17:30:36 -0400 http://progressivereform.org/cpr-blog/court-order-okays-osha-inaction-covid-19/ http://progressivereform.org/cpr-blog/court-order-okays-osha-inaction-covid-19/ We are five years out from the final 2025 deadline for the Chesapeake Bay cleanup agreement, known as the Bay Total Maximum Daily Load (TMDL). With the approval of the U.S. Environmental Protection Agency (EPA), each of the Bay states has finalized the three required phases of their Watershed Implementation Plans (WIPs). This month, those states have released their draft 2020-2021 milestones, which, when final, will set out the key short-term goals states will work toward, stepping up their restoration work so that they can stay on track to meet their final 2025 pollution reduction goals. Thu, 11 Jun 2020 14:34:18 -0400 http://progressivereform.org/cpr-blog/final-countdown-five-years-left-until-chesapeake-bay-cleanup-agreement-deadline/ http://progressivereform.org/cpr-blog/final-countdown-five-years-left-until-chesapeake-bay-cleanup-agreement-deadline/ Black lives matter. As we contemplate the scope of structural racism, we find that “Black Lives Matter” needs to be said over and over again. We say it as we push for policing that protects rather than threatens. And we can keep saying it. Like when we talk about having available, affordable health care. Having access to technology and broadband, a quiet space, and time when the classroom becomes off limits due to a pandemic or climate-driven extreme weather. Finding an affordable place to live and landlords who don’t discriminate. Finding meaningful work and getting a promotion. Finding fresh food. Getting respect. And then there’s the environment. We still see stark disparities in exposures to environmental harms in our country. Wed, 10 Jun 2020 14:12:03 -0400 http://progressivereform.org/cpr-blog/black-lives-matter-and-environment/ http://progressivereform.org/cpr-blog/black-lives-matter-and-environment/ June 1 marked the start of hurricane season for the Atlantic Basin. While not welcome, tropical storms, strong winds, and storm surges are an inevitable fact of life for many residents of the Eastern Seaboard and the Gulf Coast. As a new paper from the Center for Progressive Reform explains, with those storms can come preventable toxic flooding with public health consequences that are difficult to predict or control. Tue, 09 Jun 2020 08:24:31 -0400 http://progressivereform.org/cpr-blog/its-hurricane-season-will-state-and-federal-agencies-act-reduce-public-health-hazards-toxic-flooding/ http://progressivereform.org/cpr-blog/its-hurricane-season-will-state-and-federal-agencies-act-reduce-public-health-hazards-toxic-flooding/ For decades, commentators have complained about how long it can take for workers attempting to unionize to simply get an election in which workers make an up-or-down decision on whether to form a union. For many years, employers were able to raise hyper-formalistic legal arguments that took so long to resolve that the employees initially interested in forming a union had often moved on to other employment. In far too many cases, employers also unlawfully coerce workers during the delay, and those workers eventually withdraw their support for the union. After much internal wrangling, the National Labor Relations Board (NLRB) enacted a series of new election procedures in 2014, but after Donald Trump took office, the Board published a “Request for Information” in December 2017 that implicitly questioned the continuing need for, and efficacy of, a rule that was little more than two years old. Wed, 03 Jun 2020 11:08:31 -0400 http://progressivereform.org/cpr-blog/federal-district-court-rebuffs-trump-labor-board-shirking-rulemaking-requirements/ http://progressivereform.org/cpr-blog/federal-district-court-rebuffs-trump-labor-board-shirking-rulemaking-requirements/ In April, the U.S. Supreme Court finally weighed in with an answer to a longstanding question about what kinds of pollution discharges rise to the level of a "point source" and require a permit under the Clean Water Act. The Court dipped its toes into some muddied waters, as this question has been the subject of a range of decisions in the lower courts for decades, with little consensus. Panelists on the Center for Progressive Reform's May 28 clean water webinar examined the Supreme Court's opinion and its possible implications for water quality protections. Tue, 02 Jun 2020 12:33:29 -0400 http://progressivereform.org/cpr-blog/clean-water-webinar-spotlight-lessons-learned-supreme-courts-maui-decision/ http://progressivereform.org/cpr-blog/clean-water-webinar-spotlight-lessons-learned-supreme-courts-maui-decision/ 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. Mon, 01 Jun 2020 15:47:59 -0400 http://progressivereform.org/cpr-blog/cpr-will-stand-those-who-cannot-breathe/ http://progressivereform.org/cpr-blog/cpr-will-stand-those-who-cannot-breathe/ 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 civil courts. Mon, 01 Jun 2020 08:36:26 -0400 http://progressivereform.org/cpr-blog/covid-19-shows-why-we-need-re-empower-people-through-civil-courts/ http://progressivereform.org/cpr-blog/covid-19-shows-why-we-need-re-empower-people-through-civil-courts/ Sometime soon, EPA is expected to release its final rule limiting state and tribal authority to conduct water quality certifications under section 401 of the Clean Water Act. A water quality certification is the most important tool states have to ensure that any federally permitted project complies with state water quality protections. Thu, 28 May 2020 09:07:12 -0400 http://progressivereform.org/cpr-blog/whittling-away-state-clean-water-act-authority/ http://progressivereform.org/cpr-blog/whittling-away-state-clean-water-act-authority/ On May 19, the National Weather Service advised people living near the Tittabawassee River in Michigan to seek higher ground immediately. The region was in the midst of what meteorologists were calling a “500-year-flood,” resulting in a catastrophic failure of the Edenville Dam. Despite years of warnings from regulators that the dam could rupture, its owners failed to make changes to reinforce the structure and increase spillway capacity. By the next day, the river had risen to a record-high 34.4 feet in the city of Midland. Wed, 27 May 2020 09:58:54 -0400 http://progressivereform.org/cpr-blog/will-tittabawassee-floodwaters-go-toxic/ http://progressivereform.org/cpr-blog/will-tittabawassee-floodwaters-go-toxic/ 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. 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. Thu, 21 May 2020 09:24:23 -0400 http://progressivereform.org/cpr-blog/another-public-nuisance-covid-suit-why-mcdonalds-case-different/ http://progressivereform.org/cpr-blog/another-public-nuisance-covid-suit-why-mcdonalds-case-different/ Earlier this week, we submitted a public comment to the Environmental Protection Agency (EPA), criticizing the agency's March 2020 supplemental proposal for its “censored science" rulemaking. This rule, among other things, would require the public release of underlying data for studies considered in regulatory decision-making, and thus might prevent the agency from relying on such seminal public health research as Harvard’s Six Cities study, which have formed the backbone of many of the EPA’s regulations, simply because they rely on confidential data. Wed, 20 May 2020 14:35:04 -0400 http://progressivereform.org/cpr-blog/cpr-urges-epa-abandon-unjustified-and-harmful-censored-science-rulemaking/ http://progressivereform.org/cpr-blog/cpr-urges-epa-abandon-unjustified-and-harmful-censored-science-rulemaking/ Much of the discussion of the Trump administration's failed handling of the COVID-19 pandemic has focused on its delayed, and then insufficiently urgent, response, as well as the President's apparent effort to talk and tweet the virus into submission. All are fair criticisms. But the bungled initial response—or lack of response—was made immeasurably worse by the administration's confused and confusing allocation of authority to perform or supervise tasks essential to reducing the virus's damaging effects. Those mistakes hold important lessons. Wed, 20 May 2020 08:22:40 -0400 http://progressivereform.org/cpr-blog/trump-administrations-pandemic-response-structured-fail/ http://progressivereform.org/cpr-blog/trump-administrations-pandemic-response-structured-fail/ The Occupational Safety and Health Administration's (OSHA) Whistleblower Protection Program (WPP) plays a vital role in protecting workers from employers who cut corners on safety or who violate other federal laws: It protects those workers who report such abuses from retaliation, making it harder for employers to get away with breaking the law. Or at least that's how it's supposed to work. The 23 separate federal statutes the program encompasses cover a wide range of corporate wrongdoing, including violations of clean air and drinking water standards, food safety standards, workplace health and safety standards, and much more. If an employer retaliates against an employee for taking any of the actions covered by these laws, the employee may file a retaliation complaint with OSHA for investigation. Tue, 19 May 2020 08:19:56 -0400 http://progressivereform.org/cpr-blog/testimony-heres-how-osha-can-improve-its-whistleblower-protection-program/ http://progressivereform.org/cpr-blog/testimony-heres-how-osha-can-improve-its-whistleblower-protection-program/ On May 26, CPR and our advocacy partners are hosting a virtual town hall event to discuss the latest research and insights on air and water pollution from industrial livestock operations and their impact on public health and the environment in the Delmarva region. Mon, 18 May 2020 08:17:24 -0400 http://progressivereform.org/cpr-blog/virtual-town-hall-meeting-focus-delmarva-agricultural-pollutions-impact-public-health/ http://progressivereform.org/cpr-blog/virtual-town-hall-meeting-focus-delmarva-agricultural-pollutions-impact-public-health/ Listening in on Tuesday's Senate Hearing on Corporate Liability During the Coronavirus Pandemic, I was especially pleased to hear workers' compensation immunity discussed. Sen. Sheldon Whitehouse of Rhode Island specifically asked whether blanket corporate immunity would constitute subsidization of workers' compensation insurers. Witness Professor David Vladeck of Georgetown University Law Center responded that it very well could if workers' compensation were not carved out of the bill. I did not hear anyone contend during the hearing that workers' compensation could not be part of an immunity blanket, which is food for thought. Thu, 14 May 2020 10:52:17 -0400 http://progressivereform.org/cpr-blog/stimulus-liability-debate-dont-forget-texas-elective-workers-compensation/ http://progressivereform.org/cpr-blog/stimulus-liability-debate-dont-forget-texas-elective-workers-compensation/ Wed, 13 May 2020 11:41:52 -0400 http://progressivereform.org/cpr-blog/free-be-negligent/ http://progressivereform.org/cpr-blog/free-be-negligent/ Yesterday, a group of 20 Center for Progressive Reform Board Members, Member Scholars, and staff joined a letter to House and Senate leaders calling on them to reject efforts to attach to future COVID-19 pandemic-related legislation provisions that would interfere with the ability of workers, consumers, and members of their families to hold businesses accountable when their unreasonably dangerous actions have caused workers or consumers to contract the virus. Instead, as the letter urges, lawmakers should ensure that our courthouse doors remain open to all Americans to pursue any meritorious civil justice claims for injuries they suffer arising from companies' failure to guard against the spread of the coronavirus. Tue, 12 May 2020 03:39:12 -0400 http://progressivereform.org/cpr-blog/cpr-congress-letter-citizen-access-courts/ http://progressivereform.org/cpr-blog/cpr-congress-letter-citizen-access-courts/ Anyone following the news about the coronavirus knows about the vocal opposition by libertarians and other right-wing extremists to government measures designed to control the pandemic. On television, the coverage has focused on angry, gun-toting protesters. But there's another avenue of opposition to the virus-related safeguards, one that's less photogenic but no less divorced from reality. In recent weeks, a number of land and business owners have filed lawsuits claiming stay-at-home orders and business closings represent “takings” of private property under the Fifth Amendment to the U.S. Constitution. These takings claims should be -- and likely will be -- rejected based on firm U.S. Supreme Court precedent. Mon, 11 May 2020 10:16:18 -0400 http://progressivereform.org/cpr-blog/coronavirus-and-takings-clause/ http://progressivereform.org/cpr-blog/coronavirus-and-takings-clause/ In the latest episode of CPR Board President Rob Verchick's Connect the Dots podcast, he and CPR Member Scholars Michael Duff and Thomas McGarity explore worker safety issues in the era of the coronavirus. McGarity begins the conversation with the story of Annie Grant, a 15-year veteran of the packing line at a Tyson Food poultry processing plant in Camilla, Georgia. One morning in late March, weeks after the nation had awakened to the danger of the coronavirus and states had begun locking down, she felt feverish. When her children urged her to stay home rather than work with a fever on the chilled poultry line, she told them that the company insisted that she continue to work. Fri, 08 May 2020 09:17:21 -0400 http://progressivereform.org/cpr-blog/when-essential-means-expendable-ctd/ http://progressivereform.org/cpr-blog/when-essential-means-expendable-ctd/ In a recent op-ed in the Waco Tribune-Herald, CPR Board Member Thomas McGarity lays bare the real cost of Senate Majority Leader Mitch McConnell's efforts to extend a liability shield over businesses that endanger employees or customers by failing to take adequate precautions to prevent the spread of the coronavirus. Such a shield, he writes, would "destroy a powerful incentive for companies to protect their workers, their consumers, and their neighbors from this invisible killer." Thu, 07 May 2020 14:01:07 -0400 http://progressivereform.org/cpr-blog/mcgarity-op-ed-beware-mitch-mcconnells-liability-shield/ http://progressivereform.org/cpr-blog/mcgarity-op-ed-beware-mitch-mcconnells-liability-shield/ If we get a vaccine against a national epidemic, could Congress pass a law requiring everyone to get vaccinated? That very question was asked during the Supreme Court argument in the 2012 constitutional challenge to Obamacare’s individual mandate. The lawyer challenging Obamacare said, “No, Congress couldn’t do that.” Thu, 07 May 2020 09:13:24 -0400 http://progressivereform.org/cpr-blog/coronavirus-and-commerce-clause/ http://progressivereform.org/cpr-blog/coronavirus-and-commerce-clause/ One of the most telling aspects of the COVID-19 pandemic is has been its disparate impact on minority communities in the United States. At least three factors seem to be at work in the elevated death rate: uneven access to health care, greater prevalence of preexisting (and often inadequately treated) comorbidities, and greater likelihood of on-the-job exposure. Writing in the Boston Globe last week, CPR Member Scholar Shalanda Baker, together with co-authors Alecia McGregor, Camara Jones, and Michelle Morse, point out yet another way that the pandemic is taking a particular toll on low-income communities and communities of color. Wed, 06 May 2020 14:26:32 -0400 http://progressivereform.org/cpr-blog/boston-globe-op-ed-amidst-covid-19-hospital-siting-decisions-have-equity-implications/ http://progressivereform.org/cpr-blog/boston-globe-op-ed-amidst-covid-19-hospital-siting-decisions-have-equity-implications/ In what for me is an ominous development, the Smithfield Foods public nuisance case, about which I blogged earlier, has been summarily denied by a Missouri federal district court and the case has been dismissed. The decision took all of twelve days. In a nutshell, the court accepted the primary jurisdiction arguments that I have previously discussed but will not repeat here. Sometimes cases are illustrative of clear legal principles. This, for me, is not one of those cases. Sometimes cases set "mood points." And I fear that is the situation here. I have great concern about the prospect for an unreflective, anti-liability fervor enveloping the Great Reopening, though this decision did not directly reach questions of liability that could impact state workers' compensation or tort law. Wed, 06 May 2020 11:04:56 -0400 http://progressivereform.org/cpr-blog/novel-smithfield-foods-public-nuisance-suit-dismissed-without-prejudice/ http://progressivereform.org/cpr-blog/novel-smithfield-foods-public-nuisance-suit-dismissed-without-prejudice/ Tue, 05 May 2020 14:11:08 -0400 http://progressivereform.org/cpr-blog/webinar-recap-vulnerability-and-resilience-covid-19-and-climate-crisis/ http://progressivereform.org/cpr-blog/webinar-recap-vulnerability-and-resilience-covid-19-and-climate-crisis/ As Senate Republicans and corporations continue to lobby for the broadest possible "liability shields" in connection with the Great Reopening, a novel lawsuit framed in terms of public nuisance theory is being litigated in a Missouri federal court. Mon, 04 May 2020 21:37:28 -0400 http://progressivereform.org/cpr-blog/public-nuisance-litigation-smithfield-meatpacking-case/ http://progressivereform.org/cpr-blog/public-nuisance-litigation-smithfield-meatpacking-case/ President Donald Trump invoked the Defense Production Act to order meat and poultry plants to continue operating despite COVID-19 outbreaks, exposing Maryland's poultry workers to enormous risks. Poultry processors haven't demonstrated they're able to keep workers safe and healthy, but they know that many of these low-wage workers will be forced to return. To top it all off, one of the president's goals with this order was to provide legal immunity to companies, so that they can't be sued by employees who are infected as a result of unsafe working conditions. Mon, 04 May 2020 09:32:03 -0400 http://progressivereform.org/cpr-blog/more-needs-be-done-protect-our-meat-and-poultry-workers/ http://progressivereform.org/cpr-blog/more-needs-be-done-protect-our-meat-and-poultry-workers/ For decades, "states' rights" has been a rallying cry of the right wing. Most Americans are familiar with the dynamics that required the federalization of civil rights law, both in the 1860s and again in the 1960s, the protection of much of our nation's federal lands, and the national crises that necessitated the federal government to enact national minimum standards to protect public health and the environment. Many of us are also familiar with the right-wing backlash to these movements—indeed, the devolving of baseline environmental standards and public land management to the state and local level has been a keystone of the political right since at least Ronald Reagan's presidency. But federalism—the division of authority between state and local governments, on one hand, and the federal government on the other—doesn't have to tilt in one (rightward) political direction. Sun, 03 May 2020 22:57:17 -0400 http://progressivereform.org/cpr-blog/support-public-health-federalism/ http://progressivereform.org/cpr-blog/support-public-health-federalism/ Last week, the Supreme Court decided on a case involving discharge from a wastewater reclamation facility owned and operated by the County of Maui, which discharged 3 to 5 million gallons of treated wastewater per day into four injection wells about half a mile from the ocean. Recent research showed that much of the injected waste eventually discharges to the ocean. Environmental groups sued the county for not obtaining a Clean Water Act permit, arguing that point source discharge of pollutants that eventually reach surface water is governed under the Act. Justice Breyer, writing for the Court majority, wrote "we do not see how Congress could have intended to create such a large and obvious loop hole in one of the key regulatory innovations of the Clean Water Act." On the "fairly traceable" approach, the opinion stated that such interpretation "would require a permit in surprising, even bizarre circumstances". Thu, 30 Apr 2020 23:27:21 -0400 http://progressivereform.org/cpr-blog/supreme-court-ruling-finds-old-new-middle-ground-clean-water-acts-application-groundwater/ http://progressivereform.org/cpr-blog/supreme-court-ruling-finds-old-new-middle-ground-clean-water-acts-application-groundwater/ The president's invocation of the Defense Production Act to order meat producers back to work apparently comes with broad liability immunity for producers compelled to comply with its terms. Michael Duff writes, "So 'anti-liability' is apparently coming by executive order and by Mitch McConnell edict. I think it remains to be seen how far into state law the immunization will purport to intrude. But if this goes much further the constitutional dimensions of tort law may be tested a lot more starkly than in prior periods of 'tort reform.'" Thu, 30 Apr 2020 12:54:52 -0400 http://progressivereform.org/cpr-blog/president-orders-continued-meat-production/ http://progressivereform.org/cpr-blog/president-orders-continued-meat-production/ No one really expected FEMA’s leadership of the coronavirus response to be inspiring or even, to put it bluntly, moderately competent. Still, I’ve been puzzled by several reports from state leaders and others that federal authorities have been confiscating purchased medical supplies without explanation or, at least in one case, compensation. I don’t mean situations where a federal agency outbids someone or orders a vendor to sell to the federal government instead. That happens, too, and the practice is controversial. I’m talking about instances in which federal officials show up unannounced at a warehouse or a port and physically seize crates of medical gear that had been on their way to some needy hospital or test center that had paid or agreed to pay for them. The agent flashes a badge, the goods are trucked out, and no one knows where they go. Thu, 30 Apr 2020 02:38:36 -0400 http://progressivereform.org/cpr-blog/did-fema-take-your-mask/ http://progressivereform.org/cpr-blog/did-fema-take-your-mask/ Tomorrow, April 28, is Workers' Memorial Day, a day the labor movement established to mourn workers killed on the job and to renew the fight for the living. This year, as the coronavirus pandemic grinds on, taking its toll on workers and their families, we’re reminded more than ever of how critical it is to guarantee all workers the right to a safe and healthy workplace. Even before COVID-19, a typical day in the United States saw 14 workers killed on the job – hardworking people who set out for work, never to return home. In 2018, 5,250 workers – one worker every 100 minutes – died on the job. Black and Latinx workers were hit hardest in 2018, with a 16 percent increase from 2017 in black worker deaths and a 6 percent increase in Latinx worker deaths. Mon, 27 Apr 2020 11:26:06 -0400 http://progressivereform.org/cpr-blog/workers-memorial-day-2020/ http://progressivereform.org/cpr-blog/workers-memorial-day-2020/ On April 23, 2020, the Supreme Court ruled, 6-3, that the Clean Water Act requires a permit when a point source of pollution adds pollutants to navigable waters through groundwater, if this addition of pollutants is "the functional equivalent of a direct discharge" from the source into navigable waters. Perhaps the most striking feature of Justice Stephen Breyer's opinion for the majority is its interpretive method. The opinion reads like something from a long-ago period of statutory interpretation, before statutory decisions regularly made the central meaning of complex laws turn on a single word or two and banished legislative purpose to the interpretive fringes. Fri, 24 Apr 2020 11:15:13 -0400 http://progressivereform.org/cpr-blog/opinion-analysis-justices-purpose-full-reading-clean-water-act/ http://progressivereform.org/cpr-blog/opinion-analysis-justices-purpose-full-reading-clean-water-act/ On Earth Day, the Environmental Integrity Project (EIP), a CPR ally, released a new report on nitrogen pollution from poultry operations in the Chesapeake Bay watershed. Using data from the Chesapeake Bay Program’s pollution modeling program, EIP found that approximately 24 million pounds of nitrogen pollution from the poultry industry entered the Chesapeake Bay’s tidal waters in 2018. That's more than from urban and suburban stormwater runoff in Maryland and Virginia combined, and it can contaminate drinking water sources of nearby communities and feed huge algal blooms in the Bay that block sunlight, choking off fish and plant life. Thu, 23 Apr 2020 12:22:46 -0400 http://progressivereform.org/cpr-blog/new-report-finds-poultry-industry-contributes-24-million-pounds-nitrogen/ http://progressivereform.org/cpr-blog/new-report-finds-poultry-industry-contributes-24-million-pounds-nitrogen/ On April 17, CPR Board President Rob Verchick joined EPA enforcement chief Susan Bodine and other panelists for an American Bar Association webinar on environmental protections and enforcement during the COVID-19 pandemic. During the event, Bodine expressed "surprise" that the agency's pandemic enforcement policy was so roundly criticized, but she shouldn't have been caught off guard by those critiques. As Verchick noted during the discussion, "The problem with [weakening monitoring and pollution reporting requirements] is that fenceline communities have no idea where to look. They have no idea if the facilities in their backyards are…taking a holiday from pollution requirements or not." Tue, 21 Apr 2020 13:40:04 -0400 http://progressivereform.org/cpr-blog/cprs-verchick-notes-weakening-environmental-enforcement-during-pandemic-endangers-fenceline-communities/ http://progressivereform.org/cpr-blog/cprs-verchick-notes-weakening-environmental-enforcement-during-pandemic-endangers-fenceline-communities/ With COVID-19 cases contracted at work on the rise, labor and employment attorneys, businesses, advocates, and workers are all wondering if their state’s workers’ compensation law will apply, and alternatively, if an ill worker could file a lawsuit against their employer. The answers to these questions are not simple, as workers’ compensation laws vary by state, and when it comes to occupational diseases, the applicability of workers’ comp is often even more complicated. In a recent post on Workers’ Compensation Law Prof Blog, CPR Member Scholar Michael Duff discusses the so-called workers’ compensation “grand bargain,” under which workers receive no-fault benefits for work-related injuries and illnesses in exchange for giving up their right to file a lawsuit against their employer. In his post, Duff explores the circumstances in which a worker who has contracted COVID-19 at work may still have the right to file a lawsuit (getting around the “exclusivity bar”), as illustrated by a recently filed wrongful death case in Illinois, Evans v. Walmart. In this case, plaintiffs argue that two Walmart employees, Wando Evans and Phillip Thomas, passed away due to complications from COVID-19 contracted while working for the big box retailer. Mon, 20 Apr 2020 21:03:56 -0400 http://progressivereform.org/cpr-blog/covid-19-legal-issues-when-workers-compensation-doesnt-apply/ http://progressivereform.org/cpr-blog/covid-19-legal-issues-when-workers-compensation-doesnt-apply/ As the coronavirus pandemic wears on, reports abound of essential frontline workers laboring without such basic protective gear as masks, gloves, soap, or water; with improper distancing between workstations and coworkers; and in workplaces alongside infected colleagues. So far, nearly 4,000 workers have filed complaints with the federal Occupational Safety and Health Administration (OSHA), raising concerns about health and safety conditions inside the workplace. Yet the agency has been largely absent at a time it is most needed. Shamefully, as COVID-19 illnesses rise in slaughterhouses, grocery stores, hospitals, and other worksites across the nation, the agency has chosen to go against its very mission of protecting America’s workers, ignoring calls to adopt emergency standards and rolling back its enforcement efforts. Sun, 19 Apr 2020 10:34:29 -0400 http://progressivereform.org/cpr-blog/where-osha/ http://progressivereform.org/cpr-blog/where-osha/ On April 14, CPR's James Goodwin took part in a virtual hearing, hosted by the Union of Concerned Scientists, on the EPA's "censored science" rule, an effort by EPA to exclude from its rulemaking process a range of scientific studies that industry finds uncongenial to its anti-regulatory views. In his testimony, Goodwin dismantles EPA's contention that the rule is grounded in law, observing that there are no credible legal underpinnings for the proposal. Fri, 17 Apr 2020 16:18:10 -0400 http://progressivereform.org/cpr-blog/goodwin-censored-science-rule-lacks-legal-basis/ http://progressivereform.org/cpr-blog/goodwin-censored-science-rule-lacks-legal-basis/ During the coronavirus crisis, Dr. Anthony Fauci has become the voice of reason. Much of the public turns to him for critical information about public health while even President Trump finds it necessary to listen. In the Trump era, no one plays that role in the environmental arena. The result is a mindless campaign of deregulation that imperils public health and safety. We can't clone Dr. Fauci or duplicate the unique circumstances that have made his voice so powerful. However, we can do several things that would make it harder for administrations to ignore science. Fri, 17 Apr 2020 00:56:47 -0400 http://progressivereform.org/blog-main/we-need-environmental-fauci/ http://progressivereform.org/blog-main/we-need-environmental-fauci/ During the coronavirus crisis, Dr. Anthony Fauci has become the voice of reason. Much of the public turns to him for critical information about public health while even President Trump finds it necessary to listen. In the Trump era, no one plays that role in the environmental arena. The result is a mindless campaign of deregulation that imperils public health and safety. We can't clone Dr. Fauci or duplicate the unique circumstances that have made his voice so powerful. However, we can do several things that would make it harder for administrations to ignore science. Fri, 17 Apr 2020 00:56:47 -0400 http://progressivereform.org/cpr-blog/we-need-environmental-fauci/ http://progressivereform.org/cpr-blog/we-need-environmental-fauci/ On April 29, the Center for Progressive Reform (CPR) will host a webinar to discuss the public health and policy implications of COVID-19 and to highlight the many policy parallels between the pandemic and climate change. Speakers include Daniel Farber, JD, of UC Berkeley (and a CPR Member Scholar); Monica Schoch-Spana, PhD, of the Johns Hopkins Bloomberg School of Public Health; and Aaron Bernstein, MD, MPH, of Boston Children’s Hospital and the Harvard Medical School. Join us! Wed, 15 Apr 2020 21:40:50 -0400 http://progressivereform.org/cpr-blog/coming-soon-cpr-webinar-vulnerability-and-resilience-covid-19-and-climate-crisis/ http://progressivereform.org/cpr-blog/coming-soon-cpr-webinar-vulnerability-and-resilience-covid-19-and-climate-crisis/ Americans are experiencing a tidal wave of food insecurity related to the coronavirus pandemic. Historic unemployment claims and surging demand at food banks are laying bare the precarious circumstances of many of our citizens and the inadequacy of our social safety net. We can learn from the coronavirus epidemic--and we must in order to prevent human suffering in the future. Taking stock and then reforming our policies should start now while legislative momentum is possible--not after the country has moved past the apex of the disease. In a recent episode of the podcast, Good Law/Bad Law, Laurie Ristino joined host Aaron Freiwald to discuss the vital connection between the 2018 Farm Bill, the pandemic, and the startling food insecurity so many Americans are now facing. Tue, 14 Apr 2020 22:16:07 -0400 http://progressivereform.org/cpr-blog/food-insecurity-and-pandemic/ http://progressivereform.org/cpr-blog/food-insecurity-and-pandemic/ Over the last month, the scripts of the daily White House COVID-19 briefings have followed a familiar pattern: President Trump leads off with assurances that the crisis remains “totally under control” and that miracle cures are just around the corner. Then agency experts come to the microphone and tell a very different story. For example, on March 19, the president reported that the Food and Drug Administration “very, very quickly” approved a malaria drug, hydroxychloroquine, for treating COVID-19 that it had previously approved for lupus, malaria, and rheumatoid arthritis. Later in the briefing, Dr. Anthony Fauci, the long-time head of the National Institute for Allergy and Infectious Diseases, cautioned listeners that controlled testing would have to be completed before we know whether the drug works on the novel coronavirus. And FDA later warned that it had definitely not approved hydroxychloroquine for fighting the virus. Sun, 12 Apr 2020 20:21:15 -0400 http://progressivereform.org/cpr-blog/give-government-experts-their-own-microphone/ http://progressivereform.org/cpr-blog/give-government-experts-their-own-microphone/ Fri, 10 Apr 2020 01:35:33 -0400 http://progressivereform.org/cpr-blog/pandemic-and-industry-opportunism/ http://progressivereform.org/cpr-blog/pandemic-and-industry-opportunism/ On April 9, the Center for Progressive Reform joined the National Council for Occupational Safety and Health in calling on the U.S. Centers for Diseases Control and Prevention (CDC) to retract its outrageous guidance that allows employers to send workers potentially exposed to coronavirus back to work without any guaranteed protections. This flawed guidance is weaker than previous guidance, fails to protect workers, and is not based on scientific evidence. Thu, 09 Apr 2020 18:11:56 -0400 http://progressivereform.org/cpr-blog/news-release-flawed-cdc-guidance-endangers-workers-lives/ http://progressivereform.org/cpr-blog/news-release-flawed-cdc-guidance-endangers-workers-lives/ Who does the Environmental Protection Agency (EPA) work for? The answer would seem to be us, the American public, given that the statutes it is charged with implementing are focused first and foremost on protecting our health and the natural environment we all depend upon. The Trump administration, however, has transformed this critical protector agency into a powerful of tool of corporate polluters, one dedicated to fattening these industries’ already healthy bottom lines at the expense of the broader public interest. The evidence of this brazen degree of corporate capture at the Trump EPA abounds. Thu, 09 Apr 2020 03:11:12 -0400 http://progressivereform.org/cpr-blog/new-paper-cpr-measures-polluter-capture-trump-epa/ http://progressivereform.org/cpr-blog/new-paper-cpr-measures-polluter-capture-trump-epa/ It has often been observed that natural disasters bring out the best and worst in people. Sadly, with regard to environmental protection, the coronavirus pandemic has brought out the worst in the Trump administration. Using the pandemic as a pretext, Trump's EPA has continued to propose and implement substantial rollbacks in important safeguards to our health and the environment while issuing an unduly lax enforcement policy. In a memorandum issued March 26, EPA's Assistant Administrator for Enforcement and Compliance announced a "temporary" policy governing EPA enforcement during the pandemic. It declares the agency will now not seek civil penalties when pollution sources violate "routine compliance monitoring, integrity testing, sampling, laboratory analysis, training and reporting or certification obligations" as a result of COVID-19. Wed, 08 Apr 2020 12:05:52 -0400 http://progressivereform.org/cpr-blog/trumps-epa-uses-coronavirus-crisis-mask-environmental-deregulation-and-suspend-enforcement/ http://progressivereform.org/cpr-blog/trumps-epa-uses-coronavirus-crisis-mask-environmental-deregulation-and-suspend-enforcement/ Wed, 08 Apr 2020 00:17:39 -0400 http://progressivereform.org/cpr-blog/hungarian-democracy-destruction-and-public-health-alternatives-empowering-trump/ http://progressivereform.org/cpr-blog/hungarian-democracy-destruction-and-public-health-alternatives-empowering-trump/ With all the talk of the "new normal" brought about by the coronavirus pandemic, we cannot lose sight of how government policies and heavy industry continue to force certain populations and communities into a persistent existential nightmare. Polluted air, poisoned water, the threat of chemical explosions – these are all unjust realities that many marginalized and vulnerable Americans face all the time that are even more concerning in the midst of the COVID-19 pandemic. Nothing could make these injustices more outrageously apparent and dangerous than EPA’s signaled retreat on environmental standards and enforcement, which cravenly takes advantage of the global pandemic and a rapidly expanding economic collapse. Tue, 07 Apr 2020 09:55:29 -0400 http://progressivereform.org/cpr-blog/epa-shouldnt-use-coronavirus-excuse-look-other-way-pollution/ http://progressivereform.org/cpr-blog/epa-shouldnt-use-coronavirus-excuse-look-other-way-pollution/ Amazon's response to the coronavirus pandemic is the latest in a long line of instances where the company has put profit ahead of the health, safety, and economic well-being of its workforce. According to Amazon employees at its fulfillment centers and Whole Foods stores, the company is refusing to provide even basic health and safety protections for workers in jobs where they could be exposed to coronavirus. Fri, 03 Apr 2020 13:39:05 -0400 http://progressivereform.org/cpr-blog/amazon-vs-its-workers/ http://progressivereform.org/cpr-blog/amazon-vs-its-workers/ The coronavirus has already taught us about the role of citizens and their government. First, we have learned that we have vibrant and reliable state and local governments, many of which actively responded to the pandemic even as the White House misinformed the public and largely sat on its hands for months. Second, science and expertise should not be politicized. Instead, they are necessary factors upon which we rely for information and, when necessary, for guidance about which actions to take and about how we should live our lives in threatening circumstances. Fri, 03 Apr 2020 01:06:49 -0400 http://progressivereform.org/cpr-blog/precaution-and-pandemic-part-ii/ http://progressivereform.org/cpr-blog/precaution-and-pandemic-part-ii/ The states have been out in front in dealing with the coronavirus. Apart from President Trump's tardy response to the crisis, there are reasons for this, involving limits on Trump's authority, practicalities, and constitutional rulings. Thu, 02 Apr 2020 13:30:48 -0400 http://progressivereform.org/cpr-blog/federalism-and-pandemic/ http://progressivereform.org/cpr-blog/federalism-and-pandemic/ In this time of pandemic, we are learning about our government in real time – its strengths and weaknesses; the variety of its responses; and about our relationship, as citizens, to those we have elected to serve us. Most importantly and most immediately, we have learned the necessity of having a competent, expert regulatory structure largely immune from partisan politics even in these times of concern, anxiety, and confusion. Thu, 02 Apr 2020 00:15:40 -0400 http://progressivereform.org/cpr-blog/precaution-and-pandemic-part-i/ http://progressivereform.org/cpr-blog/precaution-and-pandemic-part-i/ Hundreds of thousands of Americans, from the southern California surf town of Imperial Beach to the rowhouse-lined blocks of Baltimore, are banding together to bring lawsuits against several dozen of the most powerful and wealthy corporations in the world. In March, 2020, CPR hosted the third installment of its climate justice webinar series. The webinar focused on the growing climate tort litigation movement, explored why litigants are bringing these suits, and discussed where we may see additional litigation in the next several years. Wed, 01 Apr 2020 11:22:57 -0400 http://progressivereform.org/cpr-blog/webinar-recap-state-courts-climate-torts-and-their-role-securing-justice-communities/ http://progressivereform.org/cpr-blog/webinar-recap-state-courts-climate-torts-and-their-role-securing-justice-communities/ Front-line health care workers and other first responders are in the trenches of the battle against the COVID-19 virus. The news is replete with tragic stories of these workers fearing death, making wills, and frantically utilizing extreme social distancing techniques to keep their own families sheltered from exposure to the virus. Should they contract the virus and become unable to work, they may seek workers' compensation coverage, which is the primary benefit system for workers suffering work-related injuries or diseases. Wed, 01 Apr 2020 08:12:23 -0400 http://progressivereform.org/cpr-blog/coronavirus-and-shortcomings-workers-comp/ http://progressivereform.org/cpr-blog/coronavirus-and-shortcomings-workers-comp/ On March 27, the Center for Progressive Reform joined environmental justice, public health, and community advocates in calling out the U.S. Environmental Protection Agency (EPA) for suspending enforcement of our nation's crucial environmental laws. The agency made the move as part of the Trump administration's response to the coronavirus pandemic, despite mounting evidence that increased air pollution worsens COVID-19, the disease the virus causes. Tue, 31 Mar 2020 13:21:51 -0400 http://progressivereform.org/cpr-blog/cpr-joins-advocates-blasting-epas-free-pass-polluters/ http://progressivereform.org/cpr-blog/cpr-joins-advocates-blasting-epas-free-pass-polluters/ It's a truism among disaster experts that people who were disadvantaged before a disaster are also the most vulnerable during the disaster. There are aspects of the coronavirus pandemic that fit this mold. Here are some of the disparities we can expect to see. Mon, 30 Mar 2020 09:03:43 -0400 http://progressivereform.org/cpr-blog/inequality-and-coronavirus/ http://progressivereform.org/cpr-blog/inequality-and-coronavirus/ The Trump administration's major deregulatory efforts share a common theme. They assiduously avoid having to rely on scientific or economic evidence. Confronting that evidence is time-consuming and difficult, particularly when it often comes out the other way. Instead, the administration has come up with clever strategies to shut out the evidence. Wed, 25 Mar 2020 17:30:04 -0400 http://progressivereform.org/cpr-blog/flight-evidence-based-regulation/ http://progressivereform.org/cpr-blog/flight-evidence-based-regulation/ Whatever one's political views, the end goal regarding the coronavirus (COVID-19) is the same – to minimize the number of people dying and suffering from severe disease. As commentators have repeatedly noted, we need genuine expertise for that. Beyond involving scientists and physicians in decision-making, there are three steps in determining what that expertise should look like and how we tap into it most effectively. Wed, 25 Mar 2020 17:20:09 -0400 http://progressivereform.org/cpr-blog/three-steps-expert-response-covid-19/ http://progressivereform.org/cpr-blog/three-steps-expert-response-covid-19/ Whatever one's political views, the end goal regarding the coronavirus (COVID-19) is the same - to minimize the number of people dying and suffering from severe disease. As commentators have repeatedly noted, we need genuine expertise for that. Beyond involving scientists and physicians in decision-making, there are three steps in determining what that expertise should look like and how we tap into it most effectively. Wed, 25 Mar 2020 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8ABD6451-DD3F-6B49-FFEB82EE2EE57345 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8ABD6451-DD3F-6B49-FFEB82EE2EE57345 As the coronavirus (COVID-19) continues to spread around the globe, the inequalities in American society have come into even sharper relief. People with low incomes who are unable to work from home risk being exposed to the virus at work or losing their jobs altogether. Their children may no longer have access to free or reduced-price meals at school. They are also less likely to have health insurance, receive new drugs, or have access to primary or specialty care, putting them at a greater risk of succumbing to the illness. As with any shock to the system – natural disaster, conflict, and now a pandemic – vulnerable populations are hit hardest and have a harder time bouncing back. Tue, 24 Mar 2020 10:03:59 -0400 http://progressivereform.org/cpr-blog/coronavirus-pandemic-reinforces-need-cumulative-impacts-analysis/ http://progressivereform.org/cpr-blog/coronavirus-pandemic-reinforces-need-cumulative-impacts-analysis/ As the coronavirus (COVID-19) continues to spread around the globe, the inequalities in American society have come into even sharper relief. People with low incomes who are unable to work from home risk being exposed to the virus at work or losing their jobs altogether. Their children may no longer have access to free or reduced-price meals at school. They are also less likely to have health insurance, receive new drugs, or have access to primary or specialty care, putting them at a greater risk of succumbing to the illness. As with any shock to the system - natural disaster, conflict, and now a pandemic - vulnerable populations are hit hardest and have a harder time bouncing back. Tue, 24 Mar 2020 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5B645030-AC62-514F-F12093C18CA73E6D http://www.progressivereform.org/CPRBlog.cfm?idBlog=5B645030-AC62-514F-F12093C18CA73E6D In my previous post, I explored five essential elements of an effective response to the coronavirus (COVID-19) pandemic. They included closure of all nonessential businesses, paid sick leave and family medical leave, health and safety standards for infectious diseases, hazard pay, and workers' compensation. Here are five more things we need to protect workers and our economy from the crisis. Mon, 23 Mar 2020 13:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=51BA2420-F654-7C61-A5B30DA1CD7CAFA4 http://www.progressivereform.org/CPRBlog.cfm?idBlog=51BA2420-F654-7C61-A5B30DA1CD7CAFA4 In a previous post, Katie Tracy explored five essential elements of an effective response to the coronavirus (COVID-19) pandemic. They included closure of all nonessential businesses, paid sick leave and family medical leave, health and safety standards for infectious diseases, hazard pay, and workers' compensation. Here are five more things we need to protect workers and our economy from the crisis. Mon, 23 Mar 2020 13:00:36 -0400 http://progressivereform.org/cpr-blog/safeguarding-workers-and-our-economy-coronavirus-part-ii/ http://progressivereform.org/cpr-blog/safeguarding-workers-and-our-economy-coronavirus-part-ii/ As the coronavirus (COVID-19) sweeps the planet, it threatens billions of people and all but promises a global economic recession of uncertain magnitude. As I'm sure you are, I'm deeply concerned about what this means for my family, my neighbors, and my broader community. Mon, 23 Mar 2020 11:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4E47CB89-AA35-0333-6C7C0FCB318F809F http://www.progressivereform.org/CPRBlog.cfm?idBlog=4E47CB89-AA35-0333-6C7C0FCB318F809F As the coronavirus (COVID-19) sweeps the planet, it threatens billions of people and all but promises a global economic recession of uncertain magnitude. As I'm sure you are, I’m deeply concerned about what this means for my family, my neighbors, and my broader community. Mon, 23 Mar 2020 10:47:31 -0400 http://progressivereform.org/cpr-blog/safeguarding-workers-and-our-economy-coronavirus-part-i/ http://progressivereform.org/cpr-blog/safeguarding-workers-and-our-economy-coronavirus-part-i/ Now that President Trump has belatedly declared a national emergency, what powers does he have to respond to the coronavirus pandemic? There has been a lot of talk about this on the Internet, some of it off-base. It's important to get the law straight. For instance, there's been talk about whether Trump should impose a national curfew, but I haven't been able to find any legal authority for doing that so far. The legal discussion of this issue is still at an early stage, but here are some of the major sources of power and how they might play out. Fri, 20 Mar 2020 09:03:10 -0400 http://progressivereform.org/cpr-blog/presidential-power-pandemic/ http://progressivereform.org/cpr-blog/presidential-power-pandemic/ Offshore wind holds huge promise as a renewable electricity source. Using existing turbine technologies, the U.S. potential is 2,058,000 megawatts (MW), enough to generate double the electricity demand of the entire United States in 2015. About 80 percent of that electricity demand is along the coasts, so getting the power to the public could prove easier than transmitting it from wind-rich midwestern states. Utilities from eight states up and down the East Coast from Maine to Virginia have committed to procuring 22,500 MW of offshore wind so far, and wind power appeared poised to take off when the Department of the Interior awarded 11 commercial offshore leases in 2016. Thu, 19 Mar 2020 16:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=208F3EDD-F48A-783A-A249AD41F0B69A96 http://www.progressivereform.org/CPRBlog.cfm?idBlog=208F3EDD-F48A-783A-A249AD41F0B69A96 Earlier this week, a group of 25 Center for Progressive Reform (CPR) Board Members, Member Scholars, and staff signed a joint letter urging Russell Vought, Acting Director of the White House Office of Management and Budget (OMB), to direct federal agencies to hold open active public comment periods for pending rulemakings amid the COVID-19 pandemic. The letter further urges Vought to extend comment periods for at least 30 days beyond the end of the crisis. In addition, public interest organizations led by CPR have submitted a separate, similar letter to Vought. That letter was signed by a diverse group of 170 organizations representing millions of Americans. Thu, 19 Mar 2020 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5AD7BAC2-0A3F-F5EB-714F45B31DA6C5B8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5AD7BAC2-0A3F-F5EB-714F45B31DA6C5B8 On March 4, I joined community members and advocates from Assateague Coastal Trust, Center for a Livable Future, Environmental Integrity Project, Food and Water Watch, and NAACP to testify in favor of Maryland's House Bill 1312. The bill, introduced by Delegate Vaughn Stewart (D-Montgomery County), would place a moratorium on permits for new or expanding concentrated animal feed operations (CAFOs) in the state. The legislation would apply to "industrial poultry operations," defined as operations that produce 300,000 or more broiler chickens per year. It was introduced with strong support from community members and environmental and public health advocates hoping to pump the brakes on the seemingly unmitigated growth of poultry CAFOs, especially on the Eastern Shore. Thu, 19 Mar 2020 09:34:23 -0400 http://progressivereform.org/cpr-blog/advocating-sustainable-agriculture-marylands-eastern-shore/ http://progressivereform.org/cpr-blog/advocating-sustainable-agriculture-marylands-eastern-shore/ Our vast public lands and waters are both a major contributor to the global climate crisis and a potential solution to the problem. The extraction and use of oil and gas resources from public lands and waters produce 20 percent of U.S. greenhouse gas (GHG) emissions. If the public lands were its own nation, it would be the fifth largest global emitter of GHGs. The scale of this problem has been exacerbated by the current administration. Thu, 19 Mar 2020 09:26:53 -0400 http://progressivereform.org/cpr-blog/public-lands-and-just-energy-transitions/ http://progressivereform.org/cpr-blog/public-lands-and-just-energy-transitions/ Earlier this week, a group of 25 Center for Progressive Reform (CPR) Board Members, Member Scholars, and staff signed a joint letter urging Russell Vought, Acting Director of the White House Office of Management and Budget (OMB), to direct federal agencies to hold open active public comment periods for pending rulemakings amid the COVID-19 pandemic. The letter further urges Vought to extend comment periods for at least 30 days beyond the end of the crisis. Thu, 19 Mar 2020 09:21:54 -0400 http://progressivereform.org/cpr-blog/cpr-allies-call-trump-administration-hold-open-public-comment-process-during-covid-19-pandemic/ http://progressivereform.org/cpr-blog/cpr-allies-call-trump-administration-hold-open-public-comment-process-during-covid-19-pandemic/ Now that President Trump has belatedly declared a national emergency, what powers does he have to respond to the coronavirus pandemic? There has been a lot of talk about this on the Internet, some of it off-base. It's important to get the law straight. For instance, there's been talk about whether Trump should impose a national curfew, but I haven't been able to find any legal authority for doing that so far. The legal discussion of this issue is still at an early stage, but here are some of the major sources of power and how they might play out. Wed, 18 Mar 2020 13:20:18 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=50579484-A7B4-4948-0AE55F3FFFC3A5C7 http://www.progressivereform.org/CPRBlog.cfm?idBlog=50579484-A7B4-4948-0AE55F3FFFC3A5C7 Our vast public lands and waters are both a major contributor to the global climate crisis and a potential solution to the problem. The extraction and use of oil and gas resources from public lands and waters produce 20 percent of U.S. greenhouse gas (GHG) emissions. If the public lands were its own nation, it would be the fifth largest global emitter of GHGs. At the same time, our public lands also represent one of the nation's most powerful tools to support a clean energy transition. Wed, 18 Mar 2020 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C86E00A6-C3FE-9184-E1D2159559C25169 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C86E00A6-C3FE-9184-E1D2159559C25169 Offshore wind holds huge promise as a renewable electricity source. Using existing turbine technologies, the U.S. potential is 2,058,000 megawatts (MW), enough to generate double the electricity demand of the entire United States in 2015. About 80 percent of that electricity demand is along the coasts, so getting the power to the public could prove easier than transmitting it from wind-rich midwestern states. Utilities from eight states up and down the East Coast from Maine to Virginia have committed to procuring 22,500 MW of offshore wind so far, and wind power appeared poised to take off when the Department of the Interior awarded 11 commercial offshore leases in 2016. Tue, 17 Mar 2020 15:59:45 -0400 http://progressivereform.org/cpr-blog/can-political-headwinds-against-us-offshore-wind-power-help-policy-change-course/ http://progressivereform.org/cpr-blog/can-political-headwinds-against-us-offshore-wind-power-help-policy-change-course/ In reading the many thought-provoking commentaries on the multiple connections and parallels between the coronavirus crisis and the climate crisis, Karen Sokol observes that they point toward adherence to three of the key principles undergirding Paris: the need for science to be the guiding light for policymaking, for global solidarity in taking action, and for prioritizing those who are most vulnerable to the impacts of the crisis. Trump rejected all three when he condemned the Paris Agreement as "draconian," and he has done so again in his response to the coronavirus. Tue, 17 Mar 2020 09:00:40 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1E6567E0-AB2F-6221-626236F46E994D55 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1E6567E0-AB2F-6221-626236F46E994D55 "This report is a catalogue of weather in 2019 made more extreme by climate change, and the human misery that went with it." That is the statement of Brian Hoskins, chair of Imperial College in London's Grantham Institute for Climate Change, about the recently released State of the Climate in 2019 by the World Meteorological Organization (WMO). Like the Intergovernmental Panel on Climate Change (IPCC), the WMO compiles information from scientists all over the world that has been a key driver of international climate law and policymaking. One of the IPCC's reports was similarly dire to that of the WMO's, but not without hope. Mon, 16 Mar 2020 14:48:15 -0400 http://progressivereform.org/cpr-blog/trumps-bungling-coronavirus-response-mirrors-his-approach-climate-crisis/ http://progressivereform.org/cpr-blog/trumps-bungling-coronavirus-response-mirrors-his-approach-climate-crisis/ On March 4, I joined community members and advocates from Assateague Coastal Trust, Center for a Livable Future, Environmental Integrity Project, Food and Water Watch, and NAACP to testify in favor of Maryland's House Bill 1312. The bill, introduced by Delegate Vaughn Stewart (D-Montgomery County), would place a moratorium on permits for new or expanding concentrated animal feed operations (CAFOs) in the state. The legislation would apply to "industrial poultry operations," defined as operations that produce 300,000 or more broiler chickens per year. It was introduced with strong support from community members and environmental and public health advocates hoping to pump the brakes on the seemingly unmitigated growth of poultry CAFOs, especially on the Eastern Shore. Thu, 12 Mar 2020 15:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1F21557A-CB6F-DB6B-1D64B6880A309B71 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1F21557A-CB6F-DB6B-1D64B6880A309B71 The flood season is upon us once again. Beginning in February, parts of Mississippi and Tennessee were deluged by floods described as "historic," "unprecedented," even "Shakespearean." At the same time, Midwestern farmers are still reeling from the torrential rains of 2019 that destroyed billions of dollars' worth of crops and equipment, while wondering whether their water-ravaged farmland can ever be put back into production. All this while the Houston area continues to recover from three so-called "500-year floods" in as many years, back-to-back in 2015, 2016, and, most notably, Hurricane Harvey in 2017. Wed, 11 Mar 2020 17:18:28 -0400 http://progressivereform.org/cpr-blog/still-flooding-after-all-these-years/ http://progressivereform.org/cpr-blog/still-flooding-after-all-these-years/ The flood season is upon us once again. Beginning in February, parts of Mississippi and Tennessee were deluged by floods described as "historic," "unprecedented," even "Shakespearean." At the same time, Midwestern farmers are still reeling from the torrential rains of 2019 that destroyed billions of dollars' worth of crops and equipment, while wondering whether their water-ravaged farmland can ever be put back into production. All this while the Houston area continues to recover from three so-called "500-year floods" in as many years, back-to-back in 2015, 2016, and, most notably, Hurricane Harvey in 2017. Wed, 11 Mar 2020 11:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C80CF553-E216-B397-561B6032761146C5 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C80CF553-E216-B397-561B6032761146C5 With the help of the U.S. Congress, the U.S. Department of the Interior (DOI) has had a long and proud history of tackling pressing challenges through responsible and inclusive management of America's public lands. One might expect it would continue that tradition as climate change has become a major challenge confronting the nation. Not so. In fact, Secretary of the Interior David Bernhardt has been doing more than any of his predecessors to promote fossil fuel development on America's public lands, all the while dancing around the issue of whether he has an obligation, or even the legal authority, to address climate change. Thu, 05 Mar 2020 13:15:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=570E206D-AFD1-9889-F384E44768E1BBAC http://www.progressivereform.org/CPRBlog.cfm?idBlog=570E206D-AFD1-9889-F384E44768E1BBAC From the farm fields of California to the low-lying neighborhoods along the shores of the Chesapeake Bay, structural racism and legally sanctioned inequities are combining with the effects of the climate crisis to put people in danger. Fortunately, public interest attorneys across the country are attuned to these problems and are finding ways to use the law to force employers and polluters to adapt to the realities of the climate crisis. The second installment in CPR's climate justice webinar series showcased some of the important work these public interest advocates are doing and explored how their efforts are affected by enforcement policy and resource changes at regulatory agencies. Thu, 05 Mar 2020 09:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8B8AF7C7-A3FC-7819-BAA4ACF0B9624E18 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8B8AF7C7-A3FC-7819-BAA4ACF0B9624E18 Earlier this year, on the heels of the Earth's hottest decade on record, a coalition of former government officials, fossil fuel companies, car manufacturers, financial companies, and nonprofit organizations renewed their endorsement of a national carbon tax as "the most effective climate solution" (emphasis added). And by "the," it appears that they mean "the only." The catch is that the coalition's legislative plan also calls for preventing the federal government from regulating carbon emissions and from taking any other protective measures "that are no longer necessary upon the enactment of a rising carbon fee." Given the scale and complexity of the planetary emergency that we face, it would certainly be nice if the solution were that simple. But that, of course, is too good to be true. Mon, 02 Mar 2020 08:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8A64B253-0817-4CDA-27DA560094BF3736 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8A64B253-0817-4CDA-27DA560094BF3736 On March 3, the Supreme Court will hear a plea to invent a new rule of constitutional law with the potential to put an end to the republic the Constitution established, if not under President Trump, then under some despotic successor. This rule would end statutory protections for independent government officials resisting a president's efforts to use his power to demolish political opposition and protect his party's supporters. Elected strongmen around the world have put rules in place allowing them to fire government officials for political reasons and used them to destroy constitutional democracy and substitute authoritarianism. But these authoritarians never had the audacity to ask unelected judges to write such rules, securing their enactment instead through parliamentary acts or a referendum. Thu, 27 Feb 2020 09:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1D08A4E6-9AD7-1B56-336289C5AAAD43D0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1D08A4E6-9AD7-1B56-336289C5AAAD43D0 Environmental groups faced a skeptical bench during Monday's argument in two consolidated cases, U.S. Forest Service v. Cowpasture River Preservation Association and Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association, as they fought to preserve a 2018 decision from the U.S. Court of Appeals for the 4th Circuit that had halted an $8 billion, 600-mile natural gas pipeline. At the heart of the dispute is a 2017 permit granted by the U.S. Forest Service to allow the Atlantic Coast Pipeline to cross the George Washington National Forest. The permit also authorized the developers to tunnel 600 feet beneath the Appalachian Trail within the forest. Vacating the permit, the 4th Circuit held that the entire 2,100-mile Appalachian Trail is part of the National Park System and therefore, under the Mineral Leasing Act, the trail is off-limits for energy development and pipeline rights-of-way. Wed, 26 Feb 2020 10:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=15F9229D-A0B1-34DB-142865E5648A86D0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=15F9229D-A0B1-34DB-142865E5648A86D0 In recent months the Trump administration has intensified its assault on federal environmental safeguards on several fronts. It has proposed drastic reductions in the scope of protections against water and air pollution, lagged in the cleanup of hazardous waste contamination, allowed the continued marketing of toxic herbicides, narrowed the scope of needed environmental impact reviews, ignored and undermined legitimate scientific studies and findings, and dismantled government attempts to mitigate and adapt to the climate crisis. Mon, 24 Feb 2020 13:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B534684E-EE09-9B95-777F5AD430539017 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B534684E-EE09-9B95-777F5AD430539017 On Monday, February 24, the Supreme Court will hear argument in U.S. Forest Service v. Cowpasture River Preservation Association and Atlantic Coast Pipeline LLC v. Cowpasture River Preservation Association. These consolidated cases pit a pipeline developer and the U.S. Forest Service against environmental groups that want to halt the pipeline's construction and protect the Appalachian Trail. Wed, 19 Feb 2020 14:06:16 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B46C269A-078F-6E02-1B94F708025EDD31 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B46C269A-078F-6E02-1B94F708025EDD31 The Little Ice Age wasn't actually an ice age, but it was a period of markedly colder temperatures that began in the 1200s and lasted into the mid-1800s, with the 1600s a particular low point. It was a time when London winter fairs were regularly held on the middle of a frozen Thames river, glaciers grew, and sea ice expanded. That episode of climate disruption may give us some insights into how current global warming may impact society. Tue, 18 Feb 2020 15:15:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=839F9544-B73F-1D68-8CD2727C3D16652D http://www.progressivereform.org/CPRBlog.cfm?idBlog=839F9544-B73F-1D68-8CD2727C3D16652D In the latest episode of Connect the Dots, host Rob Verchick and CPR Member Scholars Melissa Powers and Karen Sokol, discuss in detail a recent ruling by a three-judge panel of the U.S. Court of Appeals for the Ninth Circuit, dismissing a climate crisis suit brought by a group of 21 young people. Wed, 12 Feb 2020 04:00:34 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=28EBC782-E834-2D22-D9FAE001B8A63B07 http://www.progressivereform.org/CPRBlog.cfm?idBlog=28EBC782-E834-2D22-D9FAE001B8A63B07 Last week, more than 100 advocates, academics, and reporters joined the Center for Progressive Reform (CPR) for a webinar with three leading experts on climate migration and resilience. Presenters discussed the biggest challenges that communities and workers are facing due to the climate crisis. Wed, 05 Feb 2020 14:30:22 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E44DEB59-ED8F-6470-49688AB3DDDB9E98 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E44DEB59-ED8F-6470-49688AB3DDDB9E98 On Thursday, the House Oversight and Reform Committee's Environment Subcommittee will hold a hearing to examine the harm to children posed by the Trump administration's attack on one of the most wildly successful clean air protections in American history: the Obama-era Mercury and Air Toxic Standards (MATS). The rule, adopted in 2012 after literally decades in the making, has reduced coal-fired power plant emissions of brain-damaging mercury by more than 81 percent, acid gases by more than 88 percent, and sulfur dioxide by more than 44 percent. Altogether, its pollution reductions have saved thousands of lives. Tue, 04 Feb 2020 10:15:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A81D0D91-00AD-18C8-08CD65AE82434DF3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A81D0D91-00AD-18C8-08CD65AE82434DF3 On January 17, a panel of the Ninth Circuit Court of Appeals issued a much-awaited decision dismissing Juliana v. United States, a climate case that gained more traction in the courts than anyone had expected, given, as U.S. District Court Judge Ann Aiken stated in her opinion denying the motions to dismiss in the case, it was "no ordinary lawsuit." Tue, 28 Jan 2020 08:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1CA510A2-A490-6D74-057F5FF96D5C3A43 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1CA510A2-A490-6D74-057F5FF96D5C3A43 From time to time, a judicial decision from a federal court has the potential to have a profound impact on American society and government policy. Such a case is Juliana v. United States, in which a group of 21 young people, together with an environmental organization and "a representative of future generations," brought suit against numerous federal agencies and officials seeking a judicially mandated plan to phase out fossil fuel emissions and a drawdown of excess atmospheric carbon. Mon, 27 Jan 2020 09:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0AEAAB7E-03C7-A4B7-22E92616F9EACF46 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0AEAAB7E-03C7-A4B7-22E92616F9EACF46 On Thursday morning, the U.S. Army Corps of Engineers and EPA released a final rule determining which aquatic features are covered by the Clean Water Act. Already, the press coverage is following a familiar pattern: farming lobbyists praise the rule as a major victory, and environmentalists condemn it as an abdication of clean water protection and water quality science. The former part of that pattern has always been interesting to me. It's true that the farm lobby has been a prominent and effective participant in debates about this rule and its predecessors. But I think much of its participation, and the resulting press coverage, has been misleading. This new rule does offer benefits to farmers (at a likely cost to water quality), but the benefits aren't likely to be nearly as great as the rhetoric would lead you to believe. The goal of this post is to explain the changes the new rule actually makes for farmers and the reason those changes are more modest than you might expect. Thu, 23 Jan 2020 14:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=470ACA86-D356-3C28-BB6EEC9AE9FCCC1E http://www.progressivereform.org/CPRBlog.cfm?idBlog=470ACA86-D356-3C28-BB6EEC9AE9FCCC1E When the Trump administration released its recent proposal to gut the National Environmental Policy Act (NEPA), it trumpeted the action as a long-overdue step to "modernize" the law's implementation by "simplifying" and "clarifying" its procedural and analytical requirements for federal agencies. If these words sound familiar, that's because they're the disingenuous claptrap that opponents of regulatory safeguards repeatedly trot out to camouflage their efforts to rig legislative and rulemaking processes in favor of corporate polluters. Put differently, those terms might as well be conservatives' code words to describe something that will cause more trips to the emergency room for urban children who suffer from asthma, more toxic contaminants in our drinking water, more irreversible degradation of fragile wetlands, and more runaway climate change. Thu, 23 Jan 2020 08:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0BDE343A-0C45-C864-2D3B701AAF924755 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0BDE343A-0C45-C864-2D3B701AAF924755 It's no secret that President Trump has harassed staff at federal agencies since his first moment in office. Days after his inauguration, he blocked scientists at the Environmental Protection Agency (EPA) and the U.S. Department of Agriculture (USDA) from talking to the press and the public. He famously cracked down on federal labor unions and chiseled early retirees of their expected pension benefits. Now he's requiring hundreds of staff from USDA's Economic Research Service and the Bureau of Land Management to leave their homes in the Washington area and move to offices out West or risk losing their jobs. Wed, 22 Jan 2020 08:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E2264ABB-95F8-E5FF-7A29638347880DDD http://www.progressivereform.org/CPRBlog.cfm?idBlog=E2264ABB-95F8-E5FF-7A29638347880DDD The Trump administration has fired the latest salvo in its never-ending assault on environmental safeguards: a proposal from the White House Council on Environmental Quality (CEQ) to overhaul its regulations governing federal agency compliance with the National Environmental Policy Act (NEPA). Tue, 21 Jan 2020 08:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6ECF52F9-E908-23A6-EB27C73ED0289E7A http://www.progressivereform.org/CPRBlog.cfm?idBlog=6ECF52F9-E908-23A6-EB27C73ED0289E7A It's not just wildfires in Australia or our rapidly warming oceans (to the tune of five Hiroshima bombs every second). Climate change affects every aspect of our world, and it's forcing us reevaluate all of the human institutions we've built up over years, decades, and centuries. One such institution that CPR Member Scholar Victor Flatt has begun investigating is the legal profession itself. Wed, 15 Jan 2020 12:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A598067E-DB80-A060-C3193442FFC7F71F http://www.progressivereform.org/CPRBlog.cfm?idBlog=A598067E-DB80-A060-C3193442FFC7F71F Last week's NEPA proposal bars agencies from considering many of the harms their actions will produce, such as climate change. These restrictions profoundly misunderstand the nature of environmental problems and are based on the flimsiest of legal foundations. Mon, 13 Jan 2020 15:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=44F94CA2-CE17-C599-9A4AA402850AD201 http://www.progressivereform.org/CPRBlog.cfm?idBlog=44F94CA2-CE17-C599-9A4AA402850AD201 The White House just released its proposed revisions to the rules about environmental impact statements. The White House Council on Environmental Quality (CEQ) simply does not have the kind of power that it is trying to arrogate to itself. Its proposal is marked by hubris about the government's ability to control how the courts apply the law. Fri, 10 Jan 2020 11:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A3B63AFB-A072-9BBC-38438DB52CEB75A8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A3B63AFB-A072-9BBC-38438DB52CEB75A8 Australia is remarkably exposed to climate change and remarkably unwilling to do much about it. Conditions keep getting worse. Yet climate policy in Australia has been treading water or backpedaling for years. Mon, 06 Jan 2020 11:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D4626954-B489-A2C2-B1B0AC2E06DFE5EE http://www.progressivereform.org/CPRBlog.cfm?idBlog=D4626954-B489-A2C2-B1B0AC2E06DFE5EE Here, in no particular order, are ten stories I will be following over the next year that could determine whether we will still have a regulatory system that is strong enough to promote fairness and accountability by preventing corporations from shifting the harmful effects of their activities onto innocent members of the public: Mon, 30 Dec 2019 07:55:38 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3631887F-0BF3-177B-7D41CA19037A6468 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3631887F-0BF3-177B-7D41CA19037A6468 As the decade began, Barrack Obama was in the White House and the Democrats controlled Congress but were one vote short of a filibuster-proof majority in the House. Under Nancy Pelosi's leadership, the Waxman-Markey bill had passed the House, but it never made it to a vote in the Senate. The failure of climate legislation highlighted the importance of administrative action. Mon, 23 Dec 2019 07:28:50 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=671BD4EC-D4D8-E2F3-15851C0F0611B434 http://www.progressivereform.org/CPRBlog.cfm?idBlog=671BD4EC-D4D8-E2F3-15851C0F0611B434 For many of us, the best way to characterize the past year in three words would be "too much news." That sentiment certainly applies to the wonky backwater of the regulatory policy world. Today, that world looks much different than it did even just a year ago, and with still more rapid changes afoot, the cloud of uncertainty that now looms ominously over it doesn't appear to be dissipating anytime soon. Here, in no particular order, are 10 of the biggest developments from the past year that have contributed to this disquieting state of affairs. Fri, 20 Dec 2019 08:00:47 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=405FA035-EB57-34CF-301CE6BF4F54E2AE http://www.progressivereform.org/CPRBlog.cfm?idBlog=405FA035-EB57-34CF-301CE6BF4F54E2AE This morning E&E News reported that researchers from the Netherlands and Environmental Defense had quantified a massive natural gas leak at an Exxon-subsidiary-owned well in Ohio. According to the study, the well leaked around 60,000 tons of methane. That made me wonder: what might the carbon tax bill for a leak like that be? The answer, of course, is $0. Wed, 18 Dec 2019 17:31:44 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0F60A682-93EE-111D-DFCE37B322F8688A http://www.progressivereform.org/CPRBlog.cfm?idBlog=0F60A682-93EE-111D-DFCE37B322F8688A Last week, my CPR colleagues and I were honored to be joined by dozens of fellow advocates and member of the press for a webinar that explored the recent CPR report, Regulation as Social Justice: A Crowdsourced Blueprint for Building a Progressive Regulatory System. Drawing on the ideas of more than 60 progressive advocates, this report provides a comprehensive, action-oriented agenda for building a progressive regulatory system. The webinar provided us with an opportunity to continue exploring these ideas, including the unique potential of the regulatory system as an institutional means for promoting a more just and equitable society. Tue, 17 Dec 2019 09:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A571F023-BB66-7264-9184BBDFAD89E987 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A571F023-BB66-7264-9184BBDFAD89E987 Despite the efforts of the Trump administration, renewable energy has continued to thrive. Key states are imposing rigorous deadlines for reducing power generation from fossil fuels. Economic trends are also supporting renewables. In the first half of 2019, Texas produced more power from renewables than coal. Mon, 09 Dec 2019 11:20:13 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=32996C81-C403-A1BA-8E1B4A4A94F1E3A8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=32996C81-C403-A1BA-8E1B4A4A94F1E3A8 The idea of low-hanging fruit is ubiquitous in environmental policy - sometimes in the form of a simple metaphor, other times expressed in more sophisticated terms as an assumption of rising marginal costs of pollution reduction. It's an arresting metaphor, and one that can often be illuminating. But like many powerful metaphors, it can also mislead us badly. Mon, 25 Nov 2019 13:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CD4B7686-BF20-B796-A7B81DCD602F84D2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CD4B7686-BF20-B796-A7B81DCD602F84D2 The Environmental Protection Agency (EPA) appears poised to take the next step in advancing its dangerous "censored science" rulemaking with the pending release of a supplemental proposal. The EPA presumably intends for this action to respond to criticism of the many glaring errors and shortcomings in its original proposal, hastily released in 2018. Unfortunately, if the leaked version of the supplemental proposal is any indication, the agency is no closer to curing one of the 2018 proposal's biggest defects: identifying a plausible legal authority to issue the rule in the first place. As such, if and when it's finalized, the rule is doomed to easy rejection on the judicial review that is certain to follow. Mon, 25 Nov 2019 08:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D16FA41B-9244-57FB-34903F4D8BA93930 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D16FA41B-9244-57FB-34903F4D8BA93930 Over a year ago, EPA issued a proposed rule, ostensibly to promote transparency in the use of science to inform regulation. The proposal, which mirrors failed legislation introduced multiple times in the House, has the potential to dramatically restrict EPA's ability to rely on key scientific studies that underpin public health regulations. Fri, 22 Nov 2019 09:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=990BC581-BAD7-7227-A9B105CEDD9734FC http://www.progressivereform.org/CPRBlog.cfm?idBlog=990BC581-BAD7-7227-A9B105CEDD9734FC In her opening statement on the second day of the House public impeachment hearings, former Ambassador to Ukraine Marie Yovanovitch recounted how President Trump and his personal lawyer Rudolph Giuliani undermined the State Department's ability to "promote stated U.S. policy against corruption." "If our chief [diplomatic] representative is kneecapped," she said, "it limits our effectiveness to safeguard the vital national security interests of the United States. These events should concern everyone in this room." Thu, 21 Nov 2019 10:03:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=91E2F934-906B-AE5E-77092694FA50F519 http://www.progressivereform.org/CPRBlog.cfm?idBlog=91E2F934-906B-AE5E-77092694FA50F519 Last month, former CPR policy analyst Evan Isaacson wrote in this space about Maryland's proposal to revise and reissue its Clean Water Act pollution permit for concentrated animal feeding operations (CAFOs). He made a convincing case that those who love the Bay need to advocate for effective and enforceable CAFO regulations. Traditionally, air pollution permits have been and will continue to be a critical component of climate policy in the United States, controlling emissions of greenhouse gas pollutants. But strong water pollution standards, including permits, are also a vital tool in addressing climate change because they are so important to state efforts to adapt. Tue, 19 Nov 2019 08:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5F40A261-A79F-F1F3-EFEDA3636E83F3BA http://www.progressivereform.org/CPRBlog.cfm?idBlog=5F40A261-A79F-F1F3-EFEDA3636E83F3BA As Californians endure yet another round of devastating wildfires, they are rightly wondering if blazes of such frequency and reach are the new normal. The hard truth is that they may very well be. The fingerprints of climate change are all over this disaster, as they have been all over recent hurricane damage, and the trendline is unmistakable. With that in mind, a new report from the Center for Progressive Reform takes a look at the situation in the Golden State and elsewhere and highlights the crucial role state courts play in securing justice for those harmed by climate change. Tue, 12 Nov 2019 08:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C9014B23-0D88-992D-719C7B0271FE88F0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C9014B23-0D88-992D-719C7B0271FE88F0 The Clean Water Act requires a permit for the addition to the navigable waters of any pollutant that comes "from any point source." Last Wednesday, the Supreme Court examined this clause during oral argument in County of Maui, Hawaii v. Hawaii Wildlife Fund. The question in this case is whether a permit is required for pollutants that originate from a point source but travel through groundwater before reaching a navigable water. Mon, 11 Nov 2019 08:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5B3B81D4-AFAC-3ACE-04838F554EE6FE2D http://www.progressivereform.org/CPRBlog.cfm?idBlog=5B3B81D4-AFAC-3ACE-04838F554EE6FE2D The central regulatory construct of the Clean Water Act is the requirement of a permit for the addition to the nation's waters of any pollutant that comes "from any point source." Congress' high hopes for the cleansing power of the act's permitting system are reflected in the name Congress chose for it - the "national pollutant discharge elimination system" - and the attendant statutory goal that "the discharge of pollutants into the navigable waters be eliminated by 1985." Yet in requiring permits only for point sources of water pollution, Congress excluded nonpoint sources from the permit system's reach. County of Maui, Hawaii v. Hawaii Wildlife Fund, which will be argued Wednesday, asks whether the act "requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater." Mon, 04 Nov 2019 14:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2EFB89AB-E6B9-0257-9BD91262EC8020A8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2EFB89AB-E6B9-0257-9BD91262EC8020A8 On Halloween, nothing seems spookier than a chance encounter with a ghost or goblin, except maybe a zombie. But there is something much more haunting that happens every day. Across the United States, an average of 137 people die daily from occupational diseases caused by on-the-job exposures to toxic chemicals and other hazardous substances. Nearly 200,000 more suffer from nonfatal illnesses. Thu, 31 Oct 2019 04:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=60662811-9548-B0C4-AA7DDE855E8743AB http://www.progressivereform.org/CPRBlog.cfm?idBlog=60662811-9548-B0C4-AA7DDE855E8743AB The oil industry is enormous. Individuals firms like ExxonMobil earn tens of billions of dollars each quarter. Controlling climate change will mean drastic curtailment in the coming decades of the industry's major products. There's no way that the industry will accept this lying down. Twelve strategies for getting the job done: Mon, 28 Oct 2019 12:19:33 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BD7E9AB7-E630-07B9-4D0D485516236B9C http://www.progressivereform.org/CPRBlog.cfm?idBlog=BD7E9AB7-E630-07B9-4D0D485516236B9C Last Thursday, the Government Accountability Office released a new study on federal agencies and environmental justice. The narrow purpose of the report is to assess the extent to which federal agencies are implementing Executive Order 12898, which was issued by President Clinton in 1994 and theoretically remains in force, along with subsequent agency commitments, some made in response to prior GAO studies. Thu, 24 Oct 2019 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C9C332B1-C448-EE70-13502938B6838A67 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C9C332B1-C448-EE70-13502938B6838A67 Government regulation serves a critical role in promoting the public interest by restricting activities that threaten health, safety, and the environment. Studies indicate that the monetized aggregate benefits provided by federal regulation consistently exceed its costs. Notwithstanding these truths, it is nonetheless also the case that many regulatory programs have been unable to entirely achieve the ends for which policymakers established them. Wed, 23 Oct 2019 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8FD385A2-C5CD-A8CC-2D4E84E48E227947 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8FD385A2-C5CD-A8CC-2D4E84E48E227947 There are going to be some significant environmental cases over the next year. In addition, some important new cases will be filed now or in the near future, which may produce some interesting rulings. It will probably take more than a year, however, for some of the big new cases down the turnpike to result in their first level of judicial opinions, let alone reach completion. Tue, 22 Oct 2019 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=52819EA3-C62A-05F8-99B70485A0C7E283 http://www.progressivereform.org/CPRBlog.cfm?idBlog=52819EA3-C62A-05F8-99B70485A0C7E283 Maryland recently proposed to reissue its Clean Water Act permit for concentrated animal feeding operations (CAFOs) for another five-year term. This permit is an example of what is called a "general permit." Whereas many factories and sewage plants have an individual permit to set pollution limits and other terms and conditions for facility operation, states that implement the Clean Water Act often use general permits to cover hundreds or thousands of facilities within a single industry. This is the first reason that Maryland's upcoming CAFO permit renewal is a big deal. Just one permit will regulate hundreds of industrial-scale animal feeding operations that discharge massive amounts of pollution. Mon, 21 Oct 2019 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8C843715-C35B-BAD6-F0C9C1AC8FED4435 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8C843715-C35B-BAD6-F0C9C1AC8FED4435 Rep. Elijah Cummings of Maryland was different from most other lawmakers we see today. He embodied a moral authority that others try to project but that for him was unquestionably authentic. When he spoke of working on behalf of "the people," there was never a shred of a doubt that he meant just that. Thu, 17 Oct 2019 14:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8BD8E660-9765-461F-36C5377D35A4F7C3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8BD8E660-9765-461F-36C5377D35A4F7C3 Last week, President Trump unleashed the latest volley in his administration's efforts to bring about the "deconstruction of the administrative state" with the signing of two new executive orders relating to agency issuance and use of "guidance documents." The first purports to ensure "improved agency guidance," while the second claims to promote "transparency and fairness" in the use of guidance for enforcement actions. The bottom line for the orders is that, with a few potentially big exceptions, they are unlikely to have much practical impact. Instead, this is mostly a messaging exercise by the Trump administration aimed at advancing the broader conservative campaign to delegitimize the regulatory system by propagating the tired old myth that regulatory agencies are unaccountable and pose a threat to our society. Mon, 14 Oct 2019 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2A25E7B8-A5EB-04C9-308DEA37A49C90A9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2A25E7B8-A5EB-04C9-308DEA37A49C90A9 Stop me if you've heard this one before: Critical U.S. infrastructure is dilapidated and unsafe. Regulation is weak, and enforcement is weaker. Everyone agrees on the need for action, and climate change will only make the problem worse, but no one seems to do anything about it. Sadly, this has become a familiar story. Take dams, for instance. A year ago, I noted that the federal government regulates the safety of only a small proportion of dams in the United States, while it owns less than 5 percent. According to the American Society of Civil Engineers, in 2015, there were more than 15,000 dams classified as "high-hazard potential," a number that had increased by a third since 2005. Fri, 11 Oct 2019 09:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1DB6830E-BF7B-8180-A9BFA8FA7744BA1A http://www.progressivereform.org/CPRBlog.cfm?idBlog=1DB6830E-BF7B-8180-A9BFA8FA7744BA1A Just when it seemed that President Donald Trump was completely immune to accountability for his various abuses of power, impeachment proceedings against him have quickly picked up steam over the last couple weeks. Laying aside what happens with Trump, it's significant that it was a whistleblower complaint from a current CIA officer that helped expose the president's misconduct. Therein lies one of the many important civics lessons to be drawn from the bit of history we're witnessing: The process to this point has confirmed the value of a high-quality, independent, and professional federal bureaucracy to the effective functioning of our democracy. Thu, 10 Oct 2019 11:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1CA0BC6E-A026-F4AF-9FDFD9FABD14C859 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1CA0BC6E-A026-F4AF-9FDFD9FABD14C859 For five decades California and the federal government have worked together in an innovative exercise in federalism aimed at achieving cleaner air. California has played an important role in controlling greenhouse gas emissions that contribute to climate change, particularly from motor vehicles. Mon, 07 Oct 2019 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EBAD26C3-9E0B-33D0-C1C2992E73B923BC http://www.progressivereform.org/CPRBlog.cfm?idBlog=EBAD26C3-9E0B-33D0-C1C2992E73B923BC On September 23, I attended the Climate Emergency: Tri-State Pipeline Strike in downtown Roanoke, Virginia. While affiliated with the Global Climate Strike week of action, the event in Roanoke was another milestone in the years-long and continuing struggle to prevent construction of natural gas pipelines through parts of North Carolina, Virginia, and West Virginia. Thu, 26 Sep 2019 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=24EB9B22-963D-CE3C-FDAC5C21E8FAD74C http://www.progressivereform.org/CPRBlog.cfm?idBlog=24EB9B22-963D-CE3C-FDAC5C21E8FAD74C Last week's televised climate town hall saw several Democratic presidential candidates outline an impressive array of policies that, if implemented effectively, offer some measure of hope for averting the worst consequences of the climate crisis for us and future generations. The operative concept there -- lurking in the background and too often taken for granted -- is effective implementation. The fact of the matter is that meeting our country's greatest challenges -- climate change, economic inequality, systemic racism, access to quality health care -- will require effective implementation, and that in turn will require a more robust, modernized, and inclusive regulatory system than we currently have. Wed, 25 Sep 2019 09:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B3A3E06C-0B25-BBC6-5F8E66A1AD26ABFD http://www.progressivereform.org/CPRBlog.cfm?idBlog=B3A3E06C-0B25-BBC6-5F8E66A1AD26ABFD On September 20, I'm standing up for workers' rights by marching to the U.S. Capitol in Washington, D.C., as part of the Global Climate Strike. I'll be walking in solidarity with the students and youth organizing the strike to spread the message that climate action is imperative. Thu, 19 Sep 2019 13:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E822A26B-ACA4-3431-3EDBFA48E3592111 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E822A26B-ACA4-3431-3EDBFA48E3592111 For nearly two years, the World Bank Board of Directors has fumbled what should be an easy decision to modernize its Inspection Panel, the primary institution that addresses the environmental and social damage the Bank's lending can do to local communities. At issue is whether the Panel should be able to monitor the Bank's implementation of Management Action Plans developed and approved in light of Panel investigations. What to all outside observers would seem like an inherent part of closing any complaint -- to ensure promised commitments were fulfilled -- has been opposed by certain borrowers and Bank staff who believe they should not be held accountable for impacts on local communities in the first place. Thu, 19 Sep 2019 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BC7610E6-CDBE-205A-66610C4D74765A92 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BC7610E6-CDBE-205A-66610C4D74765A92 Late last month, the U.S. Department of Justice (DOJ) quietly took a major step to undercut the enforcement of our federal pollution control laws. In a publicly released but little publicized memorandum, DOJ's Associate Attorney General for Environment and Natural Resources, Jeffrey Bossert Clark, announced that the agency will no longer approve enforcement case settlements with local governments that include Supplemental Environmental Projects (SEPs) - a long-standing feature of negotiated resolutions of environmental enforcement cases. Wed, 18 Sep 2019 09:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=54AD8362-0C3A-721B-41A5C4CF6772E7A9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=54AD8362-0C3A-721B-41A5C4CF6772E7A9 Last Friday, the D.C. Circuit decided Wisconsin v. EPA. The federal appeals court rejected industry attacks on a regulation dealing with interstate air pollution but accepted an argument by environmental groups that the regulation was too weak. Last week also featured depressing examples of the drumbeat of Trump administration rollbacks, so it was especially nice to have some good news. Tue, 17 Sep 2019 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=553D9B05-CE2B-9296-99C3F756DDA5FD1B http://www.progressivereform.org/CPRBlog.cfm?idBlog=553D9B05-CE2B-9296-99C3F756DDA5FD1B The Trump EPA last month proposed a new plan to remove oil and gas developers' responsibility for detecting and fixing methane leaks in their wells, pipelines and storage operations. This proposal to axe the Obama-era methane rule is notable for two reasons. First, it is a huge step backward in the race to stabilize the climate, just at the moment scientists warn we need to move forward with unprecedented speed. Second, it's the latest in a growing list of Trump rollbacks opposed by the very industries they're purportedly intended to help. Mon, 16 Sep 2019 11:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4806DAB3-DC85-4641-5368788852868E1F http://www.progressivereform.org/CPRBlog.cfm?idBlog=4806DAB3-DC85-4641-5368788852868E1F Prompting rage by President Trump, California and several carmakers entered into a voluntary agreement on carbon emissions from new cars that blew past the administration's efforts to repeal existing federal requirements. Last week, the Trump administration slapped back at California. Although there's been a lot of editorializing about that response, I've seen very little about the legal dimensions of the administration's actions. I'd like to shed a little bit of light on those. Mon, 09 Sep 2019 12:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E289BB66-D0BC-A781-0C2F3B9025B6FA46 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E289BB66-D0BC-A781-0C2F3B9025B6FA46 Under executive orders dating back to President Ronald Reagan, regulatory agencies like EPA are supposed to follow cost-benefit analysis when making decisions. Under the Trump administration, however, cost-benefit analysis has barely even served as window-dressing for its deregulatory actions. It has launched a series of efforts to prevent full counting of regulatory benefits, as well as committing any number of sins against economic principles, as I detailed in a post in January. Essentially, the administration has had a laser-like focus on the costs of regulation, which it often exaggerates, while making every effort to ignore or minimize possible benefits. If Trump is reelected, that will continue. Fri, 06 Sep 2019 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=11FC9201-0BA4-ADD2-6F094A1FF67A688B http://www.progressivereform.org/CPRBlog.cfm?idBlog=11FC9201-0BA4-ADD2-6F094A1FF67A688B In August, Virginians remembered the devastation wrought by Hurricane Camille 50 years earlier. After making landfall on the Gulf Coast, that storm dumped dozens of inches of rain in western portions of the Commonwealth and killed more than 150 people in flash floods and landslides. Today, Virginians along the Atlantic coast and in the Hampton Roads region have Hurricane Dorian on their minds, with potentially life-threatening flooding, property destruction, and toxic floodwaters being serious hazards. Thu, 05 Sep 2019 14:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=186C73FC-0B70-C463-69FE2958D7451FC4 http://www.progressivereform.org/CPRBlog.cfm?idBlog=186C73FC-0B70-C463-69FE2958D7451FC4 Last week, the six Chesapeake Bay states and the District of Columbia posted their final plans to meet the 2025 pollution reduction targets under the Bay cleanup effort known as the Chesapeake Bay Total Maximum Daily Load ("Bay TMDL" for short). These final Watershed Implementation Plans (WIPs) were, by and large, little different from the draft ones released this spring, at least for the big three Bay jurisdictions (Maryland, Pennsylvania, and Virginia) that are responsible for roughly 90 percent of the nutrient pollution in the Bay. Wed, 04 Sep 2019 09:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B63E84B0-92AE-F14E-C1312224F5ED3154 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B63E84B0-92AE-F14E-C1312224F5ED3154 On Friday, the D.C. Circuit decided Murray Energy v. EPA. The court upheld EPA's health-based 2015 air quality standards for ozone against challenges from industry (rules too strong) and environmental groups (rules too weak). However, it rejected a grandfather clause that prevented the new standards from applying to plants whose permit applications were in-process when the standards were issued. It also required EPA to tighten up the "secondary standards" for ozone, which are intended to prevent non-health harms such as damage to vegetation. Mon, 26 Aug 2019 11:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0F8AAAD1-ED1A-4399-D17E8FE052246A76 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0F8AAAD1-ED1A-4399-D17E8FE052246A76 For the past couple of years, President Trump's federal budget proposal has called for the elimination of a crucial Department of Energy program - the Advanced Research Projects Agency-Energy (ARPA-E). The agency's mission is to fund high-risk/high-reward energy research - that is, research that has transformative potential for the nation's economic and energy needs but that is deemed too expensive or too risky for energy companies to fund on their own. Congress, though, has wisely resisted the president's proposal, and continued to fund ARPA-E. But the White House has stubbornly proposed eliminating the program again this year. Thu, 22 Aug 2019 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1C4866B7-9387-E6EF-17EB2B301B0D8449 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1C4866B7-9387-E6EF-17EB2B301B0D8449 In response to this month's mass shootings in El Paso, Texas, and Dayton, Ohio, President Donald Trump urged legislators to enact "red flag" laws to prevent future tragedies. Red flag laws allow police or family members to seek court orders (sometimes called "extreme risk protection orders") that temporarily remove firearms from individuals who present a danger to themselves or others. But do these laws and regulations distract from the larger point about gun violence and mass shootings in the United States? Mon, 19 Aug 2019 15:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AF67D152-FA9F-F032-2C187E78ABD75E45 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AF67D152-FA9F-F032-2C187E78ABD75E45 A special report released on Aug. 8 by the U.N. Intergovernmental Panel on Climate Change shines a stark light on how agriculture is both uniquely impacted by and a key driver of climate change, contributing up to 37 percent of total greenhouse gas emissions. The report highlights the pressing need to reverse land degradation and forest conversion caused by food, feed and fiber production, as well as the significant climate mitigation opportunities of shifting to plant-based diets, especially in wealthy countries like ours. Fri, 16 Aug 2019 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E4A12C6A-D569-1214-9F5DBE4F277489B6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E4A12C6A-D569-1214-9F5DBE4F277489B6 Polls show that a great many members of our generation oppose taking action against climate change. I want to try to explain to that group why you should rethink your views. Let me start by explaining why climate action would benefit you yourself and then widen the focus to include your grandchildren and their kids. Thu, 15 Aug 2019 12:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DB37F114-D054-D749-7C2EE40CDB1B3E54 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DB37F114-D054-D749-7C2EE40CDB1B3E54 Hiking south on the Appalachian Trail from Reeds Gap in Virginia, my teenage daughter and I come to a clearing. We're at the Three Ridges Overlook, taking in the view of the Rockfish River Valley undulating to the east. Piney Mountain, blanketed in a green canopy of oaks and poplars, stares back at us from across the divide. This tranquil section of the iconic trail is the subject of a four-year legal battle that landed in June at the Supreme Court. It's the spot where Dominion Energy wants to route the controversial Atlantic Coast Pipeline (ACP), a $7.5 billion, 600-mile, 42-inch-diameter pipe that will carry fracked natural gas from the depths of the Marcellus Shale in West Virginia. Wed, 14 Aug 2019 17:17:14 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B1C3E813-D759-FD57-E04682826832F490 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B1C3E813-D759-FD57-E04682826832F490 Chesapeake Bay and clean water advocates in Pennsylvania and the Mid-Atlantic region celebrated a significant legal win last week as Talen Energy, owner of the notorious Brunner Island coal-fired power plant, agreed to settle a lawsuit filed by the Environmental Integrity Project (EIP). The settlement is big news first and foremost because it will result in the closure and excavation of a massive coal ash disposal pond and the treatment of a number of other ponds, thus eliminating a significant source of pollution contaminating water supplies for residents in Central Pennsylvania. The successful settlement and the widespread press coverage that followed also serve as a pointed reminder of the importance of citizen enforcement of our environmental laws. Thu, 08 Aug 2019 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=47EAD0C8-B7F4-E057-64FAC0D60839BAB4 http://www.progressivereform.org/CPRBlog.cfm?idBlog=47EAD0C8-B7F4-E057-64FAC0D60839BAB4 Public participation is one of the cornerstones of U.S. administrative law, and perhaps nothing better exemplifies its value than the notice-and-comment rulemaking process through which stakeholders can provide input on a proposed rule. Yet there remains an inherent tension in the democratic potential of this process. In reviewing final rules, courts demand that agencies demonstrate that those rules are responsive to any substantive comments they receive. But courts generally limit this requirement to comments containing legal or technical information. So how can we make the voices of ordinary Americans heard in the rulemaking process in a way that does not punish them for lacking law degrees or PhDs? Tue, 06 Aug 2019 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D8B7D81C-EB2D-519B-2E1B1DBAE636B359 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D8B7D81C-EB2D-519B-2E1B1DBAE636B359 The first phase of Trump's regulatory rollbacks has been directed against Obama's climate change regulations. Those deregulatory actions will be finalized soon. What happens next will be in the hands of the courts. But the Trump EPA is now beginning a new phase in its attack on environmental regulation. Having tried to eliminate climate regulation, its next move will be an attack on basic protections against air pollution. Mon, 05 Aug 2019 12:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D81F3DD6-DFEE-349C-321F05F97B4B3314 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D81F3DD6-DFEE-349C-321F05F97B4B3314 Last Friday, the Fourth Circuit Court of Appeals halted efforts to build a natural gas pipeline because the Trump administration had done such a lousy job of showing its compliance with the Endangered Species Act. This was one of the administration's many losses in court. The case involved a perfect example of "arbitrary and capricious" decision making, to use the legal terminology. In simpler terms, the government's explanation for its decision was as full of holes as a sieve. This was such a textbook case, I'll be surprised if the court's opinion doesn't make it into one of the environmental law casebooks. Tue, 30 Jul 2019 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7649070A-BCC5-7BD7-E60ABAEDBAD2983E http://www.progressivereform.org/CPRBlog.cfm?idBlog=7649070A-BCC5-7BD7-E60ABAEDBAD2983E Everyone in communications knows how to bury a news story: release it late on a Friday. So it was with the White House's annual report on federal regulations, released months behind schedule on a Friday in February. As it has for many years, the report pegged the benefits of federal regulation in the hundreds of billions of dollars, swamping the calculated costs of compliance by at least 2 to 1 and possibly as much as 12 to 1 - awkward results for the Trump communications team, to say the least. How to square these numbers with the "job-killing regulations" trope was a real head-scratcher. It might seem like good news that regulatory safeguards actually do save a lot of lives, not to mention preventing a lot of diseases, accidents, and other bad things. But these big numbers on the benefits of federal regulations are driving the right wing crazy. Industry lawyers and lobbyists along with their allies at right-wing think tanks have been hard at work trying to discredit them for years now. The irony is that these are the same people who tried to sell us on the notion that government regulations should be subject to a cost-benefit test to begin with. Mon, 29 Jul 2019 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D80131E2-BAE2-5BFD-AA11B1DEEAB9A3E7 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D80131E2-BAE2-5BFD-AA11B1DEEAB9A3E7 To hear President Trump talk, the point of deregulation is to reduce the burden of regulation on industry. But weirdly enough, that doesn't turn out to be true of Trump's effort to repeal Obama's Clean Power Plan (CPP) and replace it with his own Affordable Clean Energy (ACE) rule. Both rules regulate carbon emissions from power plants (though Trump's rule covers only coal plants). According to his own EPA, however, the Trump administration's approach will actually increase costs to industry. Thu, 25 Jul 2019 10:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9E18CACC-988D-16D2-01456752F16BB8FF http://www.progressivereform.org/CPRBlog.cfm?idBlog=9E18CACC-988D-16D2-01456752F16BB8FF As the United States slogs through year three of a deregulatory implosion, one truth has become clear: As practiced by the Trump administration, cost-benefit analysis has become a perversion of a neutral approach to policymaking. To be forthright, I was never a fan of the number crunching. I thought it created the false impression that numerical estimates were precise, drastically understated benefits, buried controversial value judgments behind barricades of formulas, and depended on unreliable indicators of how much real people valued risk. But I understood it was here to stay when Cass Sunstein persuaded President Barack Obama to embrace it. The task for people like me became understanding how the methodology was practiced by economists so that we could make arguments critiquing its harsh applications. Tue, 23 Jul 2019 14:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3FB39170-E8B8-4D34-275D9D7A7C6DEED8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3FB39170-E8B8-4D34-275D9D7A7C6DEED8 When it comes to the need for federal regulation, the American political system is currently deeply divided along ideological and partisan lines. This division has a number of causes, but a good part of the division can unquestionably be attributed to what Professor Thomas McGarity has referred to as the anti-regulatory "idea infrastructure" and the "influence infrastructure" constructed by conservatives in the early 1970s and continued thereafter - ideas intended to block and roll back public protections along with tactics for implementing those anti-regulatory ideas. That conservative effort has succeeded for many years, but the country has paid a steep price in terms of increased risks from the unbridled pursuit of profit. The 2018 congressional election may portend a looming backlash against the political right, with its own intransigent opposition to common sense public protections leading to its demise. Tue, 23 Jul 2019 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=105E2ECD-B597-9BAE-8AAF13F82D57E84D http://www.progressivereform.org/CPRBlog.cfm?idBlog=105E2ECD-B597-9BAE-8AAF13F82D57E84D There's already been a lot written in the aftermath of Justice Stevens's death, including Ann Carlson's excellent Legal Planet post earlier this week. I'd like to add something about an aspect of his jurisprudence that had great relevance to environmental law: his belief in the rule of law, and specifically, in the duty of both the judiciary and the executive branch to respect and implement congressional mandates. Thu, 18 Jul 2019 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=33E5C70B-C86D-5B75-EC3FDDABBCEDA7DB http://www.progressivereform.org/CPRBlog.cfm?idBlog=33E5C70B-C86D-5B75-EC3FDDABBCEDA7DB In a recent speech, President Trump touted what he described as "America's environmental leadership" during his presidency. He claimed that over the past two-and-a-half years, his administration has been "a good steward of public land," reduced emissions of greenhouse gases, and successfully promoted clean air and water. His claims are Orwellian in scope and mendacity. Even the most cursory examination of the Trump administration's environmental record reveals an appalling litany of irresponsible, anti-environmental actions. Wed, 17 Jul 2019 12:25:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=056308A4-AD98-7A5F-1D966002FAA15E5A http://www.progressivereform.org/CPRBlog.cfm?idBlog=056308A4-AD98-7A5F-1D966002FAA15E5A High hopes that putting a price on carbon emissions would provide the most effective and politically expedient climate change policy keep getting dashed. In June, Oregon's Republican senators fled the state and hid rather than enact a carbon cap-and-trade program. Washington State citizen initiatives to pass a carbon tax have failed - twice. Even in progressive California, efforts to include a cap-and-trade program in the state's initial climate legislation failed; cap-and-trade came later, administratively rather than legislatively, and as part of a larger plan. Carbon pricing has an important role to play and should be a part of any comprehensive climate strategy. However, as I argue in a new CPR Issue Brief, Carbon Pricing: Essential But Insufficient, carbon pricing will not solve the climate crisis. Tue, 16 Jul 2019 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=04E6BA4B-9DD7-B3F2-C5594C322A7667F0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=04E6BA4B-9DD7-B3F2-C5594C322A7667F0 Mississippi recently passed a law that has the effect of banning terms like "veggie burger." It's easy to imagine other states passing similar laws. From an environmental view, that's problematic, because beef in particular is connected with much higher greenhouse gas emissions than plant products. It's not just the methane from cow-burps, it's also all the carbon emissions connected with growing corn to feed the cattle. But in addition to its environmental drawbacks, the Mississippi law is subject to severe constitutional problems. Mon, 15 Jul 2019 11:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9B82612C-EA75-33AC-5FEFFDC9D96FE2D9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9B82612C-EA75-33AC-5FEFFDC9D96FE2D9 Asunción Valdivia, a 53-year old father and farmworker at a Giumarra vineyard in California, died after laboring to pick grapes for ten straight hours in 105-degree heat. When he collapsed, his employer told Valdivia's son, Luis, who was also working in the field, to drive him to the hospital, but Valdivia died before they arrived. In Valdivia's memory, on July 10, Reps. Judy Chu and Raúl Grijalva paved the way to protecting outdoor and indoor workers across the nation from extreme heat by introducing the Asunción Valdivia Heat Illness and Fatality Act (H.R. 3668). Thu, 11 Jul 2019 10:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CD0D748C-07AB-0AFB-65AEC614E785763B http://www.progressivereform.org/CPRBlog.cfm?idBlog=CD0D748C-07AB-0AFB-65AEC614E785763B Imagine a world in which administrative agencies whose actions are challenged in court are afforded little respect and even less deference from reviewing courts. Imagine further that congressional efforts to vest authority in these agencies to act as guardians of public health and safety, environmental integrity, consumer interests, and economic security are viewed as alarming threats to liberty and to the very foundations of the separation of governmental authority enshrined in the Constitution. Finally, imagine a jurisprudence in which judges are committed to fashioning (or refashioning) administrative law doctrine to shackle the authority of agencies to which Congress has delegated regulatory authority at every opportunity. That is the world to which some members of the Supreme Court appear to aspire. Wed, 10 Jul 2019 12:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=72B97D07-FAC9-B43B-C8D764884D14B563 http://www.progressivereform.org/CPRBlog.cfm?idBlog=72B97D07-FAC9-B43B-C8D764884D14B563 The Supreme Court's recent opinion in Kisor v. Wilkie was eagerly awaited by administrative law experts. It is one skirmish in the ongoing war over deference to agencies. In this case, the issue was whether to overrule the Auer doctrine, which requires courts to defer to an agency's reasonable interpretation of its own regulations. This doctrine, like its big brother, the Chevron doctrine, has become a target for conservative scholars and judges. The Auer doctrine has obvious relevance to environmental law, where agencies like EPA frequently have to interpret their own regulations in making decisions about permits or enforcement. Mon, 08 Jul 2019 11:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=342CF2B5-BE50-4CDB-36F282CBC76951C8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=342CF2B5-BE50-4CDB-36F282CBC76951C8 On July 1, CPR Member Scholar Amy Sinden and I published an op-ed in The Hill explaining the dangers of a new rulemaking recently launched by Environmental Protection Agency (EPA) Administrator Andrew Wheeler and former air office Assistant Administrator Bill Wehrum. Through this rulemaking, Wheeler and Wehrum - both former industry lobbyists - will kick off the EPA's agency-wide effort to overhaul how it conducts cost-benefit analysis for its pending rules to ensure that this methodology remains heavily biased in favor polluters at the expense of people and our environment. Tue, 02 Jul 2019 10:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FCA8C04D-E116-97BD-E37D8D95C66163AD http://www.progressivereform.org/CPRBlog.cfm?idBlog=FCA8C04D-E116-97BD-E37D8D95C66163AD In a recent decision, four of the conservative Supreme Court Justices indicated a desire to limit the amount of discretion that Congress can give administrative agencies. If taken literally, some of the language they used would hobble the government by restricting agencies like EPA to "filling in the details" or making purely factual determinations. Some observers have feared that the conservatives were on the verge of dismantling modern administrative law. As I indicated in a blog post on Thursday, I think this is something of an overreaction. As it happens, later that same day, the Supreme Court gave another signal that it is happy to allow a great deal of administrative discretion. Mon, 01 Jul 2019 10:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C9649C82-D97C-AB49-8713F7CEE5659ED5 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C9649C82-D97C-AB49-8713F7CEE5659ED5 The Affordable Clean Energy (ACE) rule, the Trump administration's recently released substitute for his predecessor's Clean Power Plan (CPP), has been widely criticized as an ineffectual mechanism for addressing power plants' greenhouse gas (GHG) emissions. More broadly, the rule substitutes a technocratic, plant-by-plant approach for the more comprehensive and participatory state planning required by the now-repealed CPP. Fri, 28 Jun 2019 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=08879A40-AA27-8C19-AB1E17A1FFDA4AD1 http://www.progressivereform.org/CPRBlog.cfm?idBlog=08879A40-AA27-8C19-AB1E17A1FFDA4AD1 Gundy v. United States was a case involving a fairly obscure statute regulating sex offenders, but some have seen it as a harbinger of the destruction of the modern administrative state. In a 4-1-3 split, the Court turned away a constitutional challenge based on a claim that Congress had delegated too much authority to the executive branch. But there were ominous signs that at least four Justices are willing to change the ground rules in order to slash the authority of administrative agencies. What we don't know yet is whether they can get a fifth vote, and how far they are willing to go. Thu, 27 Jun 2019 12:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FF0ED25E-E1BD-E6F6-685B3EBB2D0A3202 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FF0ED25E-E1BD-E6F6-685B3EBB2D0A3202 On June 21, the Environmental Protection Agency (EPA) released its evaluation of the third and final round of state Watershed Implementation Plans (WIPs) under the Chesapeake Bay restoration framework known as the "Bay TMDL" (Total Maximum Daily Load). EPA's evaluation of the seven Bay jurisdictions broke no new ground regarding the quality or contents of the states' plans, but instead reiterated many of the same findings and concerns expressed by advocates, including the ones I expressed with my colleague David Flores. So what, if anything, is EPA going to do about the many shortcomings in the state WIPs? Wed, 26 Jun 2019 15:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=973F6272-E786-2428-FC2C76AA6C44FBCB http://www.progressivereform.org/CPRBlog.cfm?idBlog=973F6272-E786-2428-FC2C76AA6C44FBCB The EPA released its finalized rule for carbon emissions from existing power plants last week. The agency calls the rule the "Affordable Clean Energy" (ACE) rule, but it would be better named the "Advancing Coal Energy" rule given its explicit aim to keep old, dirty coal-fired power plants running. Wed, 26 Jun 2019 10:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C76A70CC-C6AD-24B5-DC38DD6622DE67A6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C76A70CC-C6AD-24B5-DC38DD6622DE67A6 The Supreme Court has concluded that Virginia's decades-old moratorium on uranium mining is not pre-empted by the Atomic Energy Act. But there is no clear answer to the question that pervaded the briefing and oral argument: What is the proper role for state legislative purpose in a pre-emption analysis? Tue, 18 Jun 2019 10:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2B5A08FC-9B67-E324-09F975BE63ECDCCC http://www.progressivereform.org/CPRBlog.cfm?idBlog=2B5A08FC-9B67-E324-09F975BE63ECDCCC In a recent essay posted to SSRN, I try to see, and to appreciate, the wisdom in a species of climate litigation that has many detractors. This litigation asks the courts to hold the government and private parties judicially accountable for their active promotion and pursuit of climate-endangering activities, even after they knew better -- even after they knew the terrible risks we faced if they continued on their preferred course. It calls upon venerable legal doctrines, deployed as modern bulwarks against the most pressing challenge of our time. Mon, 17 Jun 2019 11:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FB098991-BA2F-75D9-37D7F428E1B019DA http://www.progressivereform.org/CPRBlog.cfm?idBlog=FB098991-BA2F-75D9-37D7F428E1B019DA When a facility installs and operates the required pollution control equipment, we normally think of the pollution problem as solved. But there still may be bursts of pollution associated with start-up, shut-down, accidents, or external events. A recent study of pollution in Texas shows that these events have substantial health impacts, involving significant deaths and overall costs of about a quarter billion dollars a year in that state. Ironically, the study comes out at the same time as Trump's EPA has proposed to approve Texas's lax treatment of these "exceptional events." Texas purports to bar federal courts from even considering civil penalties for permit violations due to those events. Thu, 13 Jun 2019 12:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2DBEB412-A4C8-7F3F-B16C849F3A5A2E6B http://www.progressivereform.org/CPRBlog.cfm?idBlog=2DBEB412-A4C8-7F3F-B16C849F3A5A2E6B The Trump administration's hostile attitude toward science has continued unabated. The administration has used a triad of strategies: efforts to defund research, suppression of scientific findings, and embrace of fringe science. Mon, 10 Jun 2019 11:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=91C76C41-A169-B799-D804878E7C345400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=91C76C41-A169-B799-D804878E7C345400 On Wednesday, June 5, CPR is hosting a first-of-its-kind conference on Regulation as Social Justice: Empowering People Through Public Protections, which will bring together a diverse group of several dozen advocates working to advance social justice to serve as a wellspring for the development of a progressive vision for the future of U.S. regulatory policy. Much of the day's proceedings will be dedicated to an innovative form of small group discussion sessions that we refer to as "Idea Exchanges," which will call on participants to share their experiences working with federal government program implementation and offer ideas on how agencies can do a better job of promoting social justice and addressing unmet community needs as part of their work. Fri, 31 May 2019 13:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=930374E6-04F4-7309-0349707D4D02FBCE http://www.progressivereform.org/CPRBlog.cfm?idBlog=930374E6-04F4-7309-0349707D4D02FBCE According to press reports, EPA is preparing to ignore possible deaths caused by concentrations of pollutants occurring below the national ambient air quality standards (NAAQS). This is a key issue in a lot of decisions about pollution reduction. Tue, 28 May 2019 16:38:51 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FF81A49B-E9E7-EAC2-08F528592FE6972D http://www.progressivereform.org/CPRBlog.cfm?idBlog=FF81A49B-E9E7-EAC2-08F528592FE6972D Andrew Wheeler's apparent retreat on a specific effort to undercut environmental rules is good news. It's heartening that he listened to the concerns raised by CPR and others that various environmental statutes impose different requirements, making a one-size-fits-all approach to cost-benefit analysis both impractical and unlikely to survive legal challenge. But when Wheeler talks about improving the process, the real objective is to let industry pump more pollution into our air and water, favoring industry profit of Americans' health. Wed, 22 May 2019 12:08:29 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C07E5220-E48C-B769-65F1AB3655160816 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C07E5220-E48C-B769-65F1AB3655160816 To do its part in keeping climate change to tolerable levels, the United States needs to cut its carbon emissions at least 80 percent below 1990 levels by 2050. That's not just a matter of decarbonizing the electricity sector; it means changes in everything from aviation to steel manufacture, and reducing not only CO2 but also other pollutants like HFCs and black carbon. Wed, 22 May 2019 10:00:22 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BC477591-FADF-C648-35326CF00DFB833E http://www.progressivereform.org/CPRBlog.cfm?idBlog=BC477591-FADF-C648-35326CF00DFB833E The annual Duke Law Journal Administrative Law Symposium has long served as one of the most prestigious fora for cutting-edge administrative law scholarship. This year's event, which featured the leadership and contributions of six CPR Member Scholars, was no exception. Each symposium is built around a theme, and this year's topic was "Deregulatory Games," which examined how the Trump administration's aggressive and often bizarre assault on our system of regulatory safeguards has tested the long-standing doctrines, norms, and institutions of U.S. administrative law. Last week, the Duke Law Journal published a compilation of articles derived from the presentations at this year's symposium. Mon, 20 May 2019 09:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9854FAE7-CEE1-E2AF-065DDF50EC34B983 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9854FAE7-CEE1-E2AF-065DDF50EC34B983 The Occupational Safety and Health Act (OSH Act) guarantees workers the right to speak up about health and safety concerns in the workplace without reprisal. Specifically, Section 11(c) of the law provides workers the express right to report any subsequent employer retaliation against whistleblowers, such as demotion or firing, to the Occupational Safety and Health Administration (OSHA). Even with these protections, many workers fear retaliation if they report health and safety concerns. Workers who put their jobs on the line to make their voice heard deserve certainty that OSHA has their back if their employers violate the law and take adverse action against them. However, due to statutory barriers and resource constraints, OSHA's administration of 11(c) cases often leaves workers without any remedy. Thu, 16 May 2019 14:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=62FC4F25-9B37-20CB-8C1AB8EB6A70B991 http://www.progressivereform.org/CPRBlog.cfm?idBlog=62FC4F25-9B37-20CB-8C1AB8EB6A70B991 In April, states in the Chesapeake Bay watershed published drafts of the latest iteration of plans to reduce pollution and protect their rivers and streams. New analyses from the Center for Progressive Reform show that the plans fall far short of what is needed to restore the health and ecological integrity of the Chesapeake Bay. Thu, 16 May 2019 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=60F686E2-F9BA-B4CF-C909333C84F45767 http://www.progressivereform.org/CPRBlog.cfm?idBlog=60F686E2-F9BA-B4CF-C909333C84F45767 At the outset of the Trump Administration, policymakers of all stripes hoped infrastructure might be an issue on which Congress and the President could reach bipartisan agreement. President Donald J. Trump stressed infrastructure needs during and after the 2016 election, and members of Congress from both parties asserted that repairing and upgrading infrastructure was a top priority. Recently, President Donald Trump and congressional Democrats claimed to make progress over the possibility of a $2 trillion infrastructure package. But more than two years into the Trump presidency, the nation has little to show for all that talk, aside from unworkable policies and elusive proposals. Wed, 08 May 2019 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8B48DE83-00B7-2F05-7B08898C6A679BF6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8B48DE83-00B7-2F05-7B08898C6A679BF6 Pop quiz: What do marshes, pipelines, forests, and underground parking structures have in common? The answer is they are all infrastructure - part of the "underlying foundation," as my dictionary puts it, "on which the continuance and growth of a community depend." A lot of that foundation is artificial. But most of the goods and services we rely on come from the natural environment, itself. Ideally, both kinds of infrastructure -- gray and green -- would work together to provide the food, transport, and energy we need. But the story of gray and green infrastructure is often one of conflict. To understand how we might address the conflict and harmonize our infrastructure through passionate advocacy and sensible policy, we need to connect the dots. In Season 2 of CPR's Connect the Dots podcast, I interview a range of experts, community advocates, and political leaders to find out how we can get the balance right. Tue, 07 May 2019 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F14BAB93-959A-2934-28D42E22B542CA6C http://www.progressivereform.org/CPRBlog.cfm?idBlog=F14BAB93-959A-2934-28D42E22B542CA6C Climate change has already had serious effects, but as we know from the steady and increasingly loud drumbeat of projections from various scientific bodies, the dangers will grow much greater in future decades. But what does this actually look like? Mon, 06 May 2019 10:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F9563DD8-D4AB-35F8-25DA344F18A1A38F http://www.progressivereform.org/CPRBlog.cfm?idBlog=F9563DD8-D4AB-35F8-25DA344F18A1A38F Every day seems to bring more news of the Trump administration's dogged efforts to reduce environmental protections and accelerate climate change with increased carbon emissions. But, as has been true since Trump took office, the picture at the state level is much different. State governments across the country have accelerated their efforts to decarbonize while efforts to save the coal industry have foundered. Here are some of the latest developments. Tue, 30 Apr 2019 10:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=505E7B2E-FC3F-F7CF-2FB2FA47CD9E140A http://www.progressivereform.org/CPRBlog.cfm?idBlog=505E7B2E-FC3F-F7CF-2FB2FA47CD9E140A Although Workers' Memorial Day was officially April 28, the time has not passed for remembering the thousands of friends, family members, and neighbors whose lives were tragically cut short due to fatal on-the-job incidents this past year. We carry on their memories as we renew the fight for healthy and safe working conditions. Mon, 29 Apr 2019 10:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F0B3D0DB-9B88-98A9-2638A56E1073896B http://www.progressivereform.org/CPRBlog.cfm?idBlog=F0B3D0DB-9B88-98A9-2638A56E1073896B CPR Member Scholar Bill Buzbee has an op-ed in The New York Times this morning in which he observes that the Supreme Court's conservative majority faces a true rubber-meets-the-road test as it considers the Trump administration's determination to add a citizenship question to the 2020 census, despite multiple procedural and substantive problems with the plan. Tue, 23 Apr 2019 11:30:35 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EA0AC67D-AA34-468C-0079E765E31ECB9B http://www.progressivereform.org/CPRBlog.cfm?idBlog=EA0AC67D-AA34-468C-0079E765E31ECB9B Fossil fuels are reaching their consumption peak. By way of example, the United States has a surfeit of coal, but coal use is on the decline as natural gas and renewable resources replace the dirty fuel for generating electricity. Similarly, oil and natural gas are on the same decreasing consumption trajectory as recent data and modeling suggest. Mon, 22 Apr 2019 14:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=587985A1-0122-1CD3-BA87AB09C81A7873 http://www.progressivereform.org/CPRBlog.cfm?idBlog=587985A1-0122-1CD3-BA87AB09C81A7873 In 1956, Texas oil geologist M. King Hubbert predicted that U.S. oil production would peak no later than 1970. Lo and behold, in 1970, oil production topped out at just over 9.6 million barrels a day (mbd) and began its decline. The predicted peak had been reached. Regarding the world oil supply - no worries. There were oceans of oil in Middle East deserts, particularly in Saudi Arabia. Additionally, new finds in the North Sea, as well as discoveries, largely offshore, of recoverable oil in other parts of the world, meant that the world was not running out of oil; just the United States was. Mon, 22 Apr 2019 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5846ECF5-C3A1-2462-B896BE16A68537D2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5846ECF5-C3A1-2462-B896BE16A68537D2 One of the most successful environmental regulations in U.S. history is under attack from the Trump EPA -- and its demise might be accomplished by shady bookkeeping. That is the conclusion of comments filed by Center for Progressive Reform Member Scholars and staff on April 17. Since it was issued in 2011, the Mercury and Air Toxics Standard (MATS), which establishes rigorous technology-based standards to limit hazardous air pollution from fossil-fueled power plants -- has reduced electric utilities' emissions of neurotoxic mercury by 81 percent. Significantly, the rule has achieved these reductions at less than a third of its projected costs while delivering public health savings estimated at billions of dollars each year. Thu, 18 Apr 2019 11:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E8C7AFDA-D4B0-6BA1-DB26F0A46F1B3EC3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E8C7AFDA-D4B0-6BA1-DB26F0A46F1B3EC3 Workers should be able to earn a paycheck without putting their lives or their health and well-being on the line. Yet every day, an estimated 137 U.S. workers succumb to diseases caused by on-the-job exposure to toxic chemicals and other hazardous substances, and hundreds of thousands more suffer from nonfatal illnesses. In fact, more people die annually from toxic exposures at work than from car crashes, firearms, or opioids. Today, the Center for Progressive Reform (CPR) releases a new handbook, Chemical Detox for the Workplace: A Guide to Securing a Nontoxic Work Environment, exploring multiple strategies that workers, their representatives, and advocates can implement to reduce or eliminate chemical hazards in their workplaces and assist injured workers, all without waiting for government intervention. This is critically important now more than ever as the Trump administration and the chemical industry fight aggressively to undermine existing protections and stall new ones. Wed, 17 Apr 2019 09:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5942F167-D1E0-9498-0135884C2D3D6D3E http://www.progressivereform.org/CPRBlog.cfm?idBlog=5942F167-D1E0-9498-0135884C2D3D6D3E Last week, the acting director of the Office of Management and Budget (OMB) issued a memorandum to all agencies regarding compliance with the Congressional Review Act (CRA). This memo supersedes one issued in 1999 and pulls independent regulatory agencies - specifically designed by Congress to be less prone to political interference than executive agencies - into a far more centralized CRA review process. Tue, 16 Apr 2019 09:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=59ED3A1E-B938-BB35-93A918C6D09ED38D http://www.progressivereform.org/CPRBlog.cfm?idBlog=59ED3A1E-B938-BB35-93A918C6D09ED38D The federal Clean Water Act has been a resounding success as a tool for restoring our nation's waterways and preserving wetlands and other vital components of our ecosystems. But that success depends, in part, on restricting development in ecologically sensitive areas. That's why the Trump administration has proposed to narrow the scope of the Clean Water Act's protections. Not by amending the law, mind you - that wasn't possible when Republicans controlled both houses of Congress, much less now. Instead, the Trump administration is trying to weaken the Clean Water Act by redefining what it means for something to be a "water of the United States." Mon, 15 Apr 2019 12:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4B68F0E5-EB3C-CA17-9E25B95BA18CDB08 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4B68F0E5-EB3C-CA17-9E25B95BA18CDB08 Every day, it seems that there is a headline about some investigation involving campaign finance violations, the White House, or the actions of some foreign power. Perhaps that's all the bandwidth that Congress has. But there are other areas calling out for inquiry. Fri, 12 Apr 2019 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=85189254-CFB1-45D7-21BDBD0B15905236 http://www.progressivereform.org/CPRBlog.cfm?idBlog=85189254-CFB1-45D7-21BDBD0B15905236 The Trump administration's push to boost fossil fuel extraction has received a major setback. On March 29, Judge Sharon Gleason of the U.S. District Court for Alaska ruled invalid Trump's order lifting a ban on oil and gas drilling in much of the the Arctic Ocean and along parts of the North Atlantic coast. Gleason held that the relevant law -- the 1953 Outer Continental Shelf Lands Act -- authorizes presidents to withdraw offshore lands from use for energy development, but not to reverse such decisions by past administrations. Thu, 11 Apr 2019 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1924D143-0012-092B-55462D3B22E7D5FD http://www.progressivereform.org/CPRBlog.cfm?idBlog=1924D143-0012-092B-55462D3B22E7D5FD The Chesapeake Bay Program has just compiled its annual data assessing progress toward the watershed-wide pollution reduction target under the Bay restoration framework known as the "Bay TMDL." The bottom line is that recent gains in Bay health could soon be eclipsed by the lagging pace of pollution reductions, with the likely result that the region will fall well short of the Bay TMDL 2025 target date to achieve the reductions needed to restore the Bay's health. One of the primary causes of this slow pace of progress is that the agencies primarily responsible for Bay restoration simply aren't doing their jobs the way they used to. For example, the Maryland Department of the Environment (MDE) recently released its annual report showing the level of activity enforcing environmental laws. In 2018, the agency reported just 25 actions to enforce the federal Clean Water Act's core regulatory program and the state laws protecting surface waters from illegal pollution. Mon, 08 Apr 2019 12:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E2BA1806-FAA5-D335-12484172427B11AD http://www.progressivereform.org/CPRBlog.cfm?idBlog=E2BA1806-FAA5-D335-12484172427B11AD EPA pollution regulations are based on an assessment of the risks posed by pollutants. This can be a complex scientific judgment. The Clean Air Scientific Advisory Committee (CASAC), the agency's scientific advisory board, is pushing for major changes in the way that EPA approaches this analysis. The effect would be to make it much harder for EPA to prove that a risk exists. Mon, 01 Apr 2019 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F02DAA43-CF42-93AB-7C07F7A60ACEB56E http://www.progressivereform.org/CPRBlog.cfm?idBlog=F02DAA43-CF42-93AB-7C07F7A60ACEB56E The Washington Post has a list of false statements by Trump, which turns out to be searchable by topic. They've found, "In the first eight months of his presidency, President Trump made 1,137 false or misleading claims, an average of five a day." As of March 17, he was up to 9,179 false statements. There were 200 false statements about the environment - that's about one every four days, which compares favorably to the number of misrepresentations on some other topics. They're quite repetitive, but I've picked out some of the most frequent ones. By the way, if you're interested, the Post also explains why each of these statements is wrong. I shudder to think what people who follow him on Twitter are picking up in the way of misconceptions. Fri, 29 Mar 2019 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AD34D8FF-FDDC-59FD-C335BE34629D21D7 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AD34D8FF-FDDC-59FD-C335BE34629D21D7 The Supreme Court ruled unanimously this week in favor of Alaskan John Sturgeon, who waged a 12-year battle against the National Park Service over its ban on hovercraft in park preserves. As a result of the decision, Sturgeon can once again "rev up his hovercraft in search of moose" on the Nation River in the Yukon Charley Preserve. This is the second time this fight has come before the Supreme Court. On one hand, it involves important legal issues affecting public lands, federalism, and water rights. But on the other, it is a narrow case over the special circumstances of federal lands in Alaska. Thu, 28 Mar 2019 10:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=ACAD671E-C7EA-E97A-78143A7C17C86394 http://www.progressivereform.org/CPRBlog.cfm?idBlog=ACAD671E-C7EA-E97A-78143A7C17C86394 Michigan. Minnesota. New Jersey. North Carolina. West Virginia. These are just some of the hotspots of water contamination caused by per- and polyfluoroalkyl substances, better known as PFAS. Linked to a number of cancers and other illnesses, PFAS chemicals have been used in everything from nonstick cookware to stain-resistant clothing and carpets. Until recently, the substances have gone largely unregulated, exposing millions of Americans to toxic contamination. Earlier this month, CPR Member Scholar and UC-Riverside Professor Carl Cranor spoke with UCR News about PFAS and the dangers the chemicals pose to human health and the environment. Wed, 27 Mar 2019 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=561615A0-CC13-3B59-EDC8E85D43FB38EE http://www.progressivereform.org/CPRBlog.cfm?idBlog=561615A0-CC13-3B59-EDC8E85D43FB38EE During her confirmation hearing, Neomi Rao -- then the administrator of the White House Office of Information and Regulatory Affairs (OIRA) and President Trump's pick to fill Justice Kavanaugh's vacant seat on the U.S. Court of Appeals for the D.C. Circuit -- attracted a lot of controversy. Much of it surrounded the outrageous student newspaper commentaries she wrote as an undergrad, in which she casually passed judgment on date rape victims and the scourge of creeping multiculturalism. Now that Rao has been sworn in to a lifetime appointment of passing judgment with the full effect of the law, it's worth looking at another dispute that arose during the hearing -- namely, how she should approach her legal and ethical responsibility to recuse herself from cases involving rules she worked on as OIRA administrator. Mon, 25 Mar 2019 11:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=13883DCE-9214-B593-2456E445D3852BF0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=13883DCE-9214-B593-2456E445D3852BF0 What is EPA's mission? To what extent is minimizing regulatory costs part of the core mission, as the Trump Administration seems to believe? Does the Trump-Pruitt/Wheeler view comport with original intent? History makes it clear that the answer is "no." Thu, 21 Mar 2019 15:58:50 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5032699D-D598-053F-A3EE7B5E9C9E50C5 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5032699D-D598-053F-A3EE7B5E9C9E50C5 Today, the Center for Progressive Reform and 46 other environmental, labor, and public health organizations sent a letter to Environmental Protection Agency (EPA) Administrator Andrew Wheeler calling on him to withdraw the agency's pending "benefits-busting" rule. Wheeler was recently confirmed as the official agency head, and, as the letter notes, he can begin his tenure on the right track by abandoning this dangerous rulemaking. The proposal is a vestige of the disastrous Scott Pruitt era that would radically overhaul how the agency performs "cost-benefit analysis" on the environmental and health safeguards it is developing so as to make the results even more biased against public protections. Tue, 19 Mar 2019 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AC73EA2A-FB74-7524-AC3479526F41DDBF http://www.progressivereform.org/CPRBlog.cfm?idBlog=AC73EA2A-FB74-7524-AC3479526F41DDBF The possibility of declaring a national emergency to address climate change will probably remain under discussion for the next couple of years, particularly if the courts uphold Trump's "wall" emergency. For that reason, I thought it might be helpful to pull together the series of blog posts I've written on the subject. Thu, 14 Mar 2019 15:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DC6CF3D7-CBA8-B691-F4E046FFBA89F09B http://www.progressivereform.org/CPRBlog.cfm?idBlog=DC6CF3D7-CBA8-B691-F4E046FFBA89F09B Congressional oversight and the public's impeachment discussion tend to focus on deep dark secrets: Did President Trump conspire with the Russians? Did he cheat on his taxes? Did he commit other crimes before becoming president? The House Committee on Oversight and Reform (or the Judiciary Committee), however, should also focus on a more fundamental and less hidden problem: Trump has systematically sought to undermine the rule of law in the United States. Thu, 14 Mar 2019 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B9895922-C679-25DE-EBC2B37C81028E0E http://www.progressivereform.org/CPRBlog.cfm?idBlog=B9895922-C679-25DE-EBC2B37C81028E0E Usually, you'd expect a regulated industry to applaud an effort to lighten its regulatory burdens. So you would think that the car industry would support Trump's effort to roll back fuel efficiency standards for new vehicles and take away California's authority to set its own vehicle standards. But that effort is being met by silence in some cases and vocal opposition in others. Wed, 13 Mar 2019 15:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5186C5CA-B0B9-BD05-8CFB706E233A8D5E http://www.progressivereform.org/CPRBlog.cfm?idBlog=5186C5CA-B0B9-BD05-8CFB706E233A8D5E The Democratic majority in the U.S. House of Representatives has a weighty agenda -- from policy reform to oversight of the Trump administration. Given all that the House Democrats have on their plate, urging them to restore policy rationality by making the support of science-based policy central to their strategy might seem like a prosaic ask, but it's critically important. Tue, 12 Mar 2019 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5039CD0C-0588-E1F8-33AB63CE15641C04 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5039CD0C-0588-E1F8-33AB63CE15641C04 In myriad ways - from speeches, favoritism toward polluting industries, and ill-advised regulatory rollbacks - the Trump administration has consistently exhibited unrestrained antagonism toward regulatory safeguards for health, safety, and the environment. One of the earliest manifestations of that antagonism - and arguably one of the most pernicious - was an executive order signed by the president only ten days after his term began. Mon, 11 Mar 2019 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B90331AF-04FE-29B1-C8854DDBC9E4E0AF http://www.progressivereform.org/CPRBlog.cfm?idBlog=B90331AF-04FE-29B1-C8854DDBC9E4E0AF To this point, much of the focus in the discussion over the Green New Deal has been on the substance of the vision it lays out for a better society -- and why shouldn't it be? There's some really exciting stuff included in the Green New Deal's toplines. Receiving scant, if any, attention, though, are the kinds of processes and institutions that will be necessary for implementing the Green New Deal's substantive vision. Thu, 07 Mar 2019 09:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1F483DFC-02CB-82CA-38746681CC5DA5DB http://www.progressivereform.org/CPRBlog.cfm?idBlog=1F483DFC-02CB-82CA-38746681CC5DA5DB 2018 was one of the wettest years on record in Virginia, causing catastrophic floods and landslides, as well as unexpectedly high levels of pollution in the Commonwealth's waterways and the Chesapeake Bay. While the last waterlogged year is only a recent memory for Virginians, seemingly unremarkable snow and rainfall at the end of February caused the James River to crest last week at its highest level in Richmond in almost ten years. Climate change has clearly transformed our experience with weather and our relationship with water. In a new report published today, the Center for Progressive Reform explores how this drives environmental injustice in Virginia through toxic flooding and the increasing risk of chemical exposures. Wed, 06 Mar 2019 08:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B3B94E12-EDA0-4093-09D18827EED8173C http://www.progressivereform.org/CPRBlog.cfm?idBlog=B3B94E12-EDA0-4093-09D18827EED8173C I have a confession: When I started thinking about the possibility of a climate emergency declaration, it was mostly as a counterpoint to Trump's possible (now certain) declaration of an immigration emergency. As I've thought about it, however, it seems to me that there are enough potential benefits to make the idea worth serious consideration. A relatively restrained use of emergency powers could still have some real payoff. Mon, 04 Mar 2019 09:40:21 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DB791DAA-A41D-2362-87DF4CA34C698B80 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DB791DAA-A41D-2362-87DF4CA34C698B80 The return of divided government promises to bring with it a welcome, albeit temporary, reprieve from the unprecedented abuse of the Congressional Review Act (CRA) that we witnessed during the 115th Congress. As I argue in an article featured in the March/April edition of The Environmental Forum, published by the Environmental Law Institute, the CRA has become far too dangerous a law - and the happenstance of divided government should not be the only thing protecting the public interest from future abuses. Rather, recent experience has provided us with all the evidence we need to repeal the CRA - for the good of public health, safety, and the environment, as well as the integrity of our democratic institutions. Thu, 28 Feb 2019 09:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4ACE11EE-9B9F-D622-DA6A5C553AD25F18 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4ACE11EE-9B9F-D622-DA6A5C553AD25F18 For affected indigenous communities in the United States and Canada, new oil and gas pipelines snaking across their lands represent a new kind of attack. Dirty, polluting, dangerous, and built without the communities' consent, these pipelines are the inevitable outcome of North America's hydraulic fracturing and tar sands oil "revolutions" that have played out in recent decades. These indigenous frontline communities must bear the disproportionate costs brought about by developed nations' continued addiction to fossil fuels, all without seeing most of the benefits. In a special preview episode of Season 2 of the Connect the Dots podcast, CPR President Rob Verchick explores this poignant case study of environmental injustice with the guidance of Rachel Rye Butler, the head of the Democracy Campaign at Greenpeace. Thu, 21 Feb 2019 09:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7D550A5D-E19C-A864-4E96DB14D8633265 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7D550A5D-E19C-A864-4E96DB14D8633265 President Donald J. Trump has declared a national emergency to justify building a wall on the U.S. southern border, which Congress refused to fund. But Mexicans and Central Americans coming to our country in search of a better life does not constitute an emergency. Immigration at the southern border is neither new, sudden, nor especially dangerous. The number of immigrants has been declining for years and crime rates among immigrants are lower than among native-born Americans. Drug trafficking exists at the open southern border, but it pales by comparison with drug trafficking across legal ports of entry. And President Trump did not treat this as a legal emergency until he lost his battle for funding in Congress. Wed, 20 Feb 2019 10:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7380C1E7-BE64-FCA8-40853E34B261DB42 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7380C1E7-BE64-FCA8-40853E34B261DB42 The Environmental Protection Agency (EPA) released an annual report Feb. 8 on its enforcement activities in fiscal 2018. After wading through a bushel full of cherry-picked case studies and a basket of bureaucratic happy talk, the report paints a dismal picture of decline in a crucially important EPA program. Tue, 19 Feb 2019 09:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0D79FD6B-CFA5-1C04-C53C23E46FE52530 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0D79FD6B-CFA5-1C04-C53C23E46FE52530 Trump finally pulled the trigger and declared a national emergency so he can build his wall. But if illegal border crossings are a national emergency, then there's a strong case for viewing climate change in similar terms. That point has been made by observers ranging from Marco Rubio to Legal Planet's own Jonathan Zasloff in a post last week. I agree, but I want to dig deeper because it's such an important point. Mon, 18 Feb 2019 10:15:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0B8C2381-0E7A-D5A9-46F3A17CB47B30E1 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0B8C2381-0E7A-D5A9-46F3A17CB47B30E1 According to scientists, climate damages are deeply uncertain but could be ominously large (see the previous post). Alternatively, according to the best-known economic calculation, lifetime damages caused by emissions in 2020 will be worth $51 per metric ton of carbon dioxide, in 2018 prices. These two views can't both be right. Thu, 14 Feb 2019 09:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1B47AC0C-F93D-1C1B-3D1F06E580110C5B http://www.progressivereform.org/CPRBlog.cfm?idBlog=1B47AC0C-F93D-1C1B-3D1F06E580110C5B The damages expected from climate change seem to get worse with each new study. Reports from the IPCC and the U.S. Global Change Research Project, and a multi-author review article in Science, all published in late 2018, are among the recent bearers of bad news. Even more continues to arrive in a swarm of research articles, too numerous to list here. And most of these reports are talking about not-so-long-term damages. Dramatic climate disruption and massive economic losses are coming in just a few decades, not centuries, if we continue along our present path of inaction. It's almost enough to make you support an emergency program to reduce emissions and switch to a path of rapid decarbonization. Mon, 11 Feb 2019 12:15:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A7FBF6B2-A1C1-5649-620C5AA625285061 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A7FBF6B2-A1C1-5649-620C5AA625285061 Climate change is not just a long-range problem; it's one that will get much worse in the future unless major emissions cuts are made. For instance, sea levels will continue to rise for centuries. But the people who will be harmed by these changes can't go to court: they haven't been born yet. How can their interests be represented in court? And even people now alive who might still be around in, say, 2100, will have trouble proving any injury is "imminent," as the Supreme Court requires for standing. Thu, 07 Feb 2019 10:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D5EB209A-B39C-B8F0-5A5E172BE1542111 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D5EB209A-B39C-B8F0-5A5E172BE1542111 On February 5, Neomi Rao, the current administrator of the White House Office of Information and Regulatory Affairs (OIRA), is set to appear before the Senate Judiciary Committee for a hearing on her nomination to the U.S. Court of Appeals for the D.C. Circuit. If confirmed, she would fill the open seat once occupied by Supreme Court Justice Brett Kavanaugh. Rao's nomination has prompted intense media and public scrutiny of her background, and appropriately so, given the high stakes involved. Her long history of controversial writings, combined with a troubling record as President Donald Trump's "regulatory czar" (or de-regulatory czar, in this case) will give the committee's members much to ponder when deciding whether to promote her to what is widely regarded as the second-most powerful court in the United States. Mon, 04 Feb 2019 02:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=44225F0E-AB94-933D-BA5679EF0BD7238C http://www.progressivereform.org/CPRBlog.cfm?idBlog=44225F0E-AB94-933D-BA5679EF0BD7238C Conservatives, with full support from Donald Trump, have come up with a menu of ways to weaken the regulatory state. In honor of National Backward Day - that's an actual thing, in case you're wondering, and it's today - let's think about reversing those ideas. In other words, let's try to come up with similar mechanisms to strengthen protections for public health and the environment instead of weakening protections. It's an interesting experiment, if nothing else. Thu, 31 Jan 2019 09:15:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6AE64640-0C16-BD46-CBD4DBA0299454C5 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6AE64640-0C16-BD46-CBD4DBA0299454C5 The news on the climate crisis has been bad lately and getting worse. In the face of President Trump's continued denial and his administration's diligent efforts to roll back every shred of progress made by the Obama administration and to prop up an ailing coal industry, the warnings from the scientific community have only become more dire. What a relief, then, to actually get some good news on climate this month. Governor Wolf's January 8 Executive Order on the climate crisis is welcome news indeed and undoubtedly a step in the right direction. Wed, 30 Jan 2019 12:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3E3B5046-DFC0-A74F-2B0490C13A674F9D http://www.progressivereform.org/CPRBlog.cfm?idBlog=3E3B5046-DFC0-A74F-2B0490C13A674F9D The Trump administration has many energy and environmental initiatives, none of them good. But in terms of shoddy analysis and tenuous evidence, the worst is the administration's attempt to freeze fuel efficiency standards. For sheer lack of professionalism, the administration's cost-benefit analysis is hard to match. And you can't even say that the administration is captive to industry, because this isn't something industry asked for. It's a case of untethered ideology trumping evidence and economics. Thu, 24 Jan 2019 10:55:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=05B508C6-D56F-70AB-424B090D82E9A8ED http://www.progressivereform.org/CPRBlog.cfm?idBlog=05B508C6-D56F-70AB-424B090D82E9A8ED Juliana v. United States, often called the "children's case," is an imaginative effort to make the federal government responsible for its role in promoting the production and use of fossil fuels and its failure to control carbon emissions. The plaintiffs ask the court to "declare [that] the United States' current environmental policy infringes their fundamental rights, direct the agencies to conduct a consumption-based inventory of United States CO2 emissions," and use that inventory to "prepare and implement an enforceable national remedial plan to phase out fossil fuel emissions and draw down excess atmospheric CO2 so as to stabilize the climate system and protect the vital resources on which Plaintiffs now and in the future will depend." Although the District Judge has ruled thus far in favor of the plaintiffs, the Supreme Court has already signaled its skepticism about the case in disposing of a stay motion. The plaintiffs seem unlikely to surmount the legal obstacles before them. But there is an important insight at the heart of their case, and there may be other ways to operationalize that idea. Tue, 22 Jan 2019 14:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A6644A55-9B8B-D096-2BF612F2E8FB772C http://www.progressivereform.org/CPRBlog.cfm?idBlog=A6644A55-9B8B-D096-2BF612F2E8FB772C In theory, cost-benefit analysis should be just as relevant when the government is deregulating as when it is imposing new regulations. But things don't seem to work that way. This is the second of two blog posts analyzing how costs and benefits figured in decisions during the past two years of unified GOP control of the federal government. Today, I focus on Congress. Thu, 17 Jan 2019 11:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9D7B6342-B454-E715-3BAAE372CEDD24CC http://www.progressivereform.org/CPRBlog.cfm?idBlog=9D7B6342-B454-E715-3BAAE372CEDD24CC During his tenure, former Environmental Protection Agency (EPA) Administrator Scott Pruitt launched multiple assaults on environmental and public health safeguards. His attacks on clean air standards and water quality regulations made so little sense in our reality that he went to the absurd and extreme lengths of creating an alternative reality to make them look legitimate. That alternative reality is rendered in the "benefits-busting" rule, which would systematically distort the analyses EPA economists conduct to assess the economic impacts of the agency's pending rulemakings. With Acting Administrator Andrew Wheeler's Senate confirmation hearing scheduled for January 16, lawmakers will have the opportunity to learn more about this dangerous rulemaking - and hopefully call upon Wheeler to abandon it altogether. Tue, 15 Jan 2019 10:55:48 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=363EF18E-BA87-04DD-2D16005E379FEFD2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=363EF18E-BA87-04DD-2D16005E379FEFD2 Republicans are apparently worried that if Trump could use emergency powers by declaring border security a national emergency, the next president could do the same thing for climate change. There's no doubt that this would be far more legitimate than Trump's wall effort. Border crossings are much lower than they were ten years ago; he has said in the recent past that his prior efforts have vastly improved border security. In contrast, the Pentagon has classified climate change as a threat to national security, and Congress under Republican control has even endorsed this view. Furthermore, scientists have made it clear that we have a limited time to head off a disastrous outcome. Mon, 14 Jan 2019 10:25:06 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=01A5D637-B695-715E-479639FFA8362CA1 http://www.progressivereform.org/CPRBlog.cfm?idBlog=01A5D637-B695-715E-479639FFA8362CA1 In December of 2017, Donald Trump gathered the press for a variation on a familiar activity from his real estate mogul days. Stretched between a tower of paper taller than himself, representing all current federal regulations, and a small stack labeled "1960," was a thick piece of red ribbon -- red tape, if you will. The president promised that "we're going to get back below that 1960s level." With his daughter Ivanka and other advisors by his side, Trump used comically large scissors to cut the ribbon. Cutting regulations has been a priority for nearly every Republican politician since at least the 1980s. But the Trump-era GOP, unsatisfied with the existing deregulatory toolkit, has found a bigger pair of scissors. Call it cost-cost analysis: to justify getting rid of regulations they dislike, Republicans have decided to systematically ignore their benefits. Wed, 09 Jan 2019 10:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=01529E34-07F7-3388-EB9BA526013646E2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=01529E34-07F7-3388-EB9BA526013646E2 "Bureaucrat" is just another name for public servant. It has been said that a thin blue line of police protects us from the worst elements of society. But it is a thin gray line of underpaid, overworked, anonymous bureaucrats who protect society against more insidious risks - risks ranging from nuclear contamination to climate change to unsafe food. Tue, 08 Jan 2019 10:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CD5E6702-B3D0-1A5F-09FBB73AB392D5BA http://www.progressivereform.org/CPRBlog.cfm?idBlog=CD5E6702-B3D0-1A5F-09FBB73AB392D5BA What are the key things to watch for in 2019 in the environmental area? Mon, 31 Dec 2018 13:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2FC8E89B-9E48-1C8B-9F753F9AEB74C588 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2FC8E89B-9E48-1C8B-9F753F9AEB74C588 Yes, it was a grim year in many ways. But there actually were some bright spots. Here are just the high points. Mon, 31 Dec 2018 09:45:10 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2F384C04-06BF-7DEB-A9BACC6A870D0643 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2F384C04-06BF-7DEB-A9BACC6A870D0643 As I documented in my most recent post, 2018 was an active year for regulatory policy, bringing several notable controversies, milestones, and developments. For those who follow this area, 2019 promises to be just as lively and momentous. Indeed, it appears that the dynamics that spurred much of the regulatory policy-related action in 2018 - namely, the high priority that the Trump administration has placed on corrupting our system of regulatory safeguards, and the accompanying political polarization around the issue more generally - will continue and perhaps even intensify in the new year. Here are 10 of the biggest stories I'm looking to following in 2019: Mon, 31 Dec 2018 09:10:27 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A2B48A55-DDF3-F47D-B50CE3C5DA393C5C http://www.progressivereform.org/CPRBlog.cfm?idBlog=A2B48A55-DDF3-F47D-B50CE3C5DA393C5C As we prepare to tie a bow on 2018, it's worth looking back at the various op-eds CPR's Member Scholars and staff penned over the course of the year. You can find and read every single one of them on our op-ed page. But here are some highlights for quick(er) perusal: Thu, 27 Dec 2018 07:33:42 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3C5E77A5-B30F-B333-41574C59504B3F8C http://www.progressivereform.org/CPRBlog.cfm?idBlog=3C5E77A5-B30F-B333-41574C59504B3F8C The Trump administration, acting with minimal to no congressional oversight, has consistently neglected to protect America's workers, instead rolling back and delaying numerous Obama-era regulations and safeguards, ignoring emerging hazards from climate change and new technologies, and restricting traditional inspection and enforcement in favor of self-reporting and compliance assistance. In the likely event President Trump and the Republican majority of the Senate continue on the same path, the new Democratic majority in the House of Representatives can bring about much-needed change, or at least spotlight the need for change, through oversight, budgeting, and legislation. Here are just a few reforms. Wed, 26 Dec 2018 09:33:40 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=017A1F07-07B3-676F-FF3268B16E721C39 http://www.progressivereform.org/CPRBlog.cfm?idBlog=017A1F07-07B3-676F-FF3268B16E721C39 While regulatory policy developments might not lead evening news broadcasts or dominate newspaper headlines, they can have an enormous impact on our day-to-day lives. Regulatory policy has been a particular hotbed of activity during the Trump administration, which swept into office determined to undermine or corrupt the institutions responsible for keeping Americans and their environment secure against unacceptable risks of harm. So, it is no surprise that 2018 was another busy year in regulatory policy. Here are 10 of the biggest stories I've followed: Thu, 20 Dec 2018 07:55:25 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D1369DDA-974E-1FDC-D585022DE632ADC9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D1369DDA-974E-1FDC-D585022DE632ADC9 In Alaska's arctic communities, Inuit contemplating the need to relocate have reported that the loss of sea ice would make them feel like they are lost or going crazy. Zika and other vector-borne diseases have been a concern primarily for people in the southeastern United States. Recent research on the long-range internal migration of people from the coasts to the interior suggests a broader national concern regarding "climate augmentation" of disease. These are just two examples of the many public health effects we can expect as climate change forces people to uproot themselves. Mon, 17 Dec 2018 16:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6B7DB255-B116-C037-1E50C4C799E83E5B http://www.progressivereform.org/CPRBlog.cfm?idBlog=6B7DB255-B116-C037-1E50C4C799E83E5B Not long after their party regained control of the lower chamber in the midterm elections, House Democratic leaders unveiled their signature legislative action for the next Congress - a package of reform measures aimed at tackling some of the worst ethics abuses involving the Trump administration's top officials and members of Congress. Symbolically assigned the designation of H.R. 1 to underscore its status as the top legislative priority, the bill would do more than just restore the integrity of our key democratic institutions; it could also serve as a crucial first step toward strengthening our system of regulatory safeguards. Thu, 13 Dec 2018 11:15:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=931A7744-DBDF-838C-E7AD3B21605E5B34 http://www.progressivereform.org/CPRBlog.cfm?idBlog=931A7744-DBDF-838C-E7AD3B21605E5B34 It's that point in the year when we take a step back and reflect on the past 12 months. This was a big year for those concerned about restoring the Chesapeake Bay, with plenty of feel-good stories about various species and ecosystems rebounding more quickly than expected. There were also more than a few headlines about record-setting rainfalls washing trash down the rivers, over dams, and coating the Bay's shores. But I am going to look beneath the headlines at what is driving - or hindering - our progress in restoring the Bay and where things stand now that we're just past the halfway mark in the current Bay cleanup framework. So, in no particular order, here are the top 10 stories and issues I've been watching this year, which I'll expand upon in a series of posts over the next few weeks. Wed, 12 Dec 2018 14:15:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6609E211-DF80-1EAB-2AD428B8F6B8C870 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6609E211-DF80-1EAB-2AD428B8F6B8C870 On December 11, the U.S. Army Corps of Engineers and EPA released a proposed new rule that would change the agencies' shared definition of "waters of the United States." That phrase defines the geographic scope of federal jurisdiction under the Clean Water Act. In the rule itself, and in the rhetoric surrounding the rule, EPA, the Army Corps, and the rule's many political supporters have identified returning power to the states as a primary purpose of the rule. The rule itself emphasizes the need for a "line between Federal and State waters," and much of the rhetoric likewise implies that where federal jurisdiction exists, state authority disappears. Those statements contain a little bit of truth and a lot of deception. In reality, federal jurisdiction does not eliminate state authority. Indeed, limiting federal jurisdiction will often limit states' roles. Tue, 11 Dec 2018 15:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=34EECB91-BA47-A021-8124028F1807C746 http://www.progressivereform.org/CPRBlog.cfm?idBlog=34EECB91-BA47-A021-8124028F1807C746 In terms of regulatory policy, the second half of Trump's term is shaping up to look a lot like Obama's final two years in office. Congress won't be doing much to advance Trump's environment and energy agenda, as was the case with Obama. So, like Obama, Trump's focus will be on administrative action, particularly regulatory initiatives (or deregulatory ones, in Trump's case). The big question is how these efforts will fare in court. I want to discuss three aspects of that question: timing, judicial review of statutory issues, and judicial review of policy analysis. Mon, 10 Dec 2018 10:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F6BC20B2-E5C6-0960-CD82426662D27583 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F6BC20B2-E5C6-0960-CD82426662D27583 We all seem to be subscribed to the "All Trump News, All the Time" newsfeed. It may be helpful to step back a bit and compare Trump with his last Republican predecessor, George W. Bush. Thu, 06 Dec 2018 09:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=28161995-A0AD-DEBC-15635EBF9B7D18B9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=28161995-A0AD-DEBC-15635EBF9B7D18B9 In September 2017 - that seems so long ago! - Eric Biber and I released a report assessing the state of play in environmental issues 200 days into the Trump administration, based on an earlier series of blog posts. As we end Trump's second year, it's time to bring that assessment up to date. This is the first of three posts examining what Trump has done (and hasn't done) in terms of environment and energy. For this first post, I'll follow the same outline as the 9/17 report but omit a lot of the detail. Mon, 03 Dec 2018 10:15:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8EAF2178-E942-872C-A103C5E5CD926C3F http://www.progressivereform.org/CPRBlog.cfm?idBlog=8EAF2178-E942-872C-A103C5E5CD926C3F In a mixed-bag ruling, a unanimous Supreme Court returned Weyerhaeuser Co. v. U.S. Fish and Wildlife Service to the U.S. Court of Appeals for the 5th Circuit to decide several questions not answered on the first go-round. Chief Justice John Roberts' opinion for the court appears calculated to decide just enough to justify shipping the case back to the lower court. Fri, 30 Nov 2018 12:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F7A86932-C554-E1E0-8E1CE876DDB40283 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F7A86932-C554-E1E0-8E1CE876DDB40283 In 2017, President Trump signed a proclamation reducing by about 85 percent the size of Utah's Bears Ears National Monument, a large landscape of pristine red rock canyons and culturally and historically significant Native American sites. He claimed that he had the authority to shrink this and any other national monument under the Antiquities Act of 1906 and had previously ordered the Department of the Interior to review additional monuments whose designations stretch back decades. But does federal law really allow the president to "repeal and replace" our national monuments once they're established? Mon, 26 Nov 2018 08:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2C3964A6-EF82-09E6-7994D8412DF871E8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2C3964A6-EF82-09E6-7994D8412DF871E8 Like many areas of law, energy policy in the United States is both national and local. The boundary lines delineating federal and state authority are not always clear, leading to tension and disagreement between federal and state authorities. When tensions get too high, Congress can, and often has, stepped in to override state control in order to promote national interests. But when Congress faces partisan gridlock, an increasing number of disputes are resolved in the courts. Tue, 20 Nov 2018 08:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BF7A4D11-059D-D7C9-230513B2C67872B8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BF7A4D11-059D-D7C9-230513B2C67872B8 Washington State has continued to try -- unsuccessfully -- to pass a carbon tax, with the latest effort, Initiative 1631, losing on November 6. The state's effort to control carbon is laudable, but Washington and other states contemplating how to fill the growing federal climate policy void should consider leading with a vision for a clean energy transition rather than a politically challenging "price." An overarching vision for a low-carbon future and a public decision-making process for achieving that future could attract more support than the imposition of a stand-alone fee or tax. Mon, 19 Nov 2018 08:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2D89161E-DDA8-76DB-96E21A25FFBBF3C9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2D89161E-DDA8-76DB-96E21A25FFBBF3C9 The midterm elections are over, and most of the races have been decided. The outcome will have consequences for a wide variety of policies and legislation, including the 2018 Farm Bill. So what's the status of the bill? What are its prospects for passage during what remains of the 115th Congress? And how will the current and near-future political landscape impact the legislation's conservation provisions? Fri, 16 Nov 2018 11:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=26124DE0-B05C-8740-8218AF363169C750 http://www.progressivereform.org/CPRBlog.cfm?idBlog=26124DE0-B05C-8740-8218AF363169C750 "Every system is perfectly designed to get the results it gets." If that's so, our climate and energy laws have been perfectly designed to fall short. They will not avoid the catastrophic consequences of climate change or enable a swift transition to a zero-carbon energy system because they have not been designed to achieve those outcomes. Instead, climate and energy laws in the United States, including those promoted by the most progressive jurisdictions, are designed to gradually reduce some emissions and eventually phase out fossil fuels from some sectors, but they are not designed to achieve the drastic systemic changes in our energy sectors and human behavior that are necessary to quickly and permanently reduce greenhouse gases. Thu, 15 Nov 2018 08:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C48D3556-E04A-ACA3-F2C0F0FB26B63E86 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C48D3556-E04A-ACA3-F2C0F0FB26B63E86 Since the dawn of the environmental justice movement, we have heard the stories of individuals and communities left unprotected by our environmental laws and policies. Their stories reveal the deep-seated structures of racism and inequality that determine what resources and which people environmental law will protect. Wed, 14 Nov 2018 08:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=926D1B06-0A10-6D01-3EF7F999BD67A4E1 http://www.progressivereform.org/CPRBlog.cfm?idBlog=926D1B06-0A10-6D01-3EF7F999BD67A4E1 How much do presidents really matter to the United States' participation in international environmental law? Tue, 13 Nov 2018 08:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8B177311-DD1B-C569-5CADF21977CE3CD5 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8B177311-DD1B-C569-5CADF21977CE3CD5 Late last week, a federal district court in Montana blocked construction on the Keystone XL pipeline. The decision in Indigenous Environmental Network, et al. v. U.S. Department of State is a significant victory for the environment and a major blow to the ultimate completion of the controversial pipeline. Mon, 12 Nov 2018 08:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C913D618-E12F-25D5-A236916F0B115B3E http://www.progressivereform.org/CPRBlog.cfm?idBlog=C913D618-E12F-25D5-A236916F0B115B3E For two years, President Trump has attempted to steer federal policy in ways that undercut core American values. His vision of government - to the extent one can divine a coherent vision - lacks compassion, fairness, a commitment to equal voice and opportunity, and concern for the long-term threats that families and communities cannot address on their own. Instead, the president has embarked on a campaign to remake the core institutions of our democracy in a new, authoritarian mold. And along the way, he has set an expectation for his administration that its agenda and his personal political and financial aspirations carry more weight than the rule of law. Tuesday's midterms showed that Americans are tired of Congress rubber-stamping the president's actions and letting his mean-spirited rhetoric become normalized. The newly minted Democratic majority in the House of Representatives will be sworn in in early January with a mandate to push back. To what end will Democrats pursue the vigorous oversight agenda that they have promised? Here's an idea: How about focusing on the future? Thu, 08 Nov 2018 13:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=89E22AC9-E823-8BAB-594F70A93AEDE609 http://www.progressivereform.org/CPRBlog.cfm?idBlog=89E22AC9-E823-8BAB-594F70A93AEDE609 Given the enormous success of regulations, you would think that lawmakers - at least progressive ones - would be eager to extol their virtues and champion reforms to strengthen our regulatory system. But you would be wrong. Instead, apparently seduced by the conservative siren song that decries regulations as incompatible with job creation, economic growth, or even "freedom," progressive lawmakers have adopted a much meeker, almost apologetic tone. Thankfully, U.S. Senator Elizabeth Warren has broken from this pattern with the release of the Anti-Corruption and Public Integrity Act. Her bill provides a comprehensive blueprint for ridding our federal institutions of excessive corporate influence while restoring the principle of government "of the people, by the people, and for the people." This entire blueprint is critical in this political era, but it is the bill's "Rulemaking Reform" part that is especially noteworthy. It lays the groundwork for a new, progressive vision of regulation. Thu, 08 Nov 2018 08:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F834B944-A002-E5A0-E4187ECABB533B5F http://www.progressivereform.org/CPRBlog.cfm?idBlog=F834B944-A002-E5A0-E4187ECABB533B5F Alaska hunter John Sturgeon is asking the Supreme Court to slam the door on the National Park Service's ability to apply its nationwide hovercraft ban to the Nation River within the Yukon-Charley Rivers National Preserve. Sturgeon's attorney, Matthew Findley, told the justices during oral argument Monday that the Alaska National Interest Lands Conservation Act prevents the Park Service - but not other federal agencies - from exercising authority over waters in park units in Alaska. Tue, 06 Nov 2018 15:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2C339618-FD96-9233-EE27AC367875D358 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2C339618-FD96-9233-EE27AC367875D358 The Supreme Court heard oral argument Monday morning in Virginia Uranium Inc. v. Warren, which concerns the largest uranium deposit in the United States, located in south-central Virginia. The petitioners are owners of the deposit who wish to mine uranium, and they are challenging a 1983 statute by which the Virginia General Assembly imposed a moratorium on uranium mining. Although all parties agree that uranium mining is a matter for state regulation, the owners contend that the moratorium was impermissibly intended to regulate radiation safety associated with uranium milling and tailings management - a field pre-empted by the Atomic Energy Act. The case therefore raises questions about the extent to which a state legislature's motives are relevant to deciding whether the state statute is pre-empted. Tue, 06 Nov 2018 15:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2B4E0903-DEA9-5AD8-122D9BDD92E94E2D http://www.progressivereform.org/CPRBlog.cfm?idBlog=2B4E0903-DEA9-5AD8-122D9BDD92E94E2D The meeting logs for the White House Office of Information and Regulatory Affairs (OIRA) - the small but powerful bureau that oversees federal rulemaking efforts on behalf of the president - have looked a little different in recent weeks. As usual, they are graced by high-priced corporate lobbyists and attorneys from white-shoe law firms, along with a smattering of activists from public interest organizations. But also signing in have been nearly a dozen ordinary Americans, representing only themselves, and they've been there to express their views on one rule: the Department of Education's proposal to weaken existing federal measures aimed at addressing sexual assaults on college campuses. Tue, 06 Nov 2018 08:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F782F224-CE0B-A7BE-53BAE00BD44E7096 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F782F224-CE0B-A7BE-53BAE00BD44E7096 Climate change is having significant effects on the ocean. Sea levels are rising. The ocean is becoming warmer, and because the ocean absorbs chemically reactive carbon dioxide, its pH is dropping. Hurricanes, typhoons, and other coastal storms are becoming stronger on average. Marine species are on the move, generally shifting toward the poles and, to a lesser extent, deeper. Coral reefs are dying. Clearly, the climate impacts on the ocean are cause for concern. Mon, 05 Nov 2018 08:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=51BDFD01-D25E-8752-E66B0387EE439BC3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=51BDFD01-D25E-8752-E66B0387EE439BC3 Recent extreme weather - Hurricanes Harvey and Florence - caused widespread toxic contamination of floodwaters after low-lying chemical plants, coal ash storage facilities and hog waste lagoons were inundated. Such storm-driven chemical disasters demonstrate that state water pollution permitting programs are overdue for reforms that account for stronger and more intense hurricanes and heavy rainfall events, sea level rise and extreme heat. Thu, 01 Nov 2018 15:10:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=24B25B64-01A3-300A-C2122A05A638B80A http://www.progressivereform.org/CPRBlog.cfm?idBlog=24B25B64-01A3-300A-C2122A05A638B80A On October 26, 2018, the comment period ended for a new rule that guts U.S. fuel efficiency standards for vehicles. If the final rule resembles the proposed rule, the Safer Affordable Fuel-Efficient (SAFE) Vehicles Rule for Model Years 2021-2026 Passenger Cars and Light Trucks (SAFE Vehicles Rule) will lock in old fuel efficiency standards, reversing Obama administration regulations mandating increased efficiency. Specifically, the "preferred alternative" expressed by the Trump administration's EPA is to keep 2020 standards for both passenger vehicles and light trucks through 2026, replacing current regulations that required enhanced efficiency during the six-year period. Further, the rule proposes to remove California's existing authorization to regulate carbon emissions from cars, preempting both California's regulation and other states that have adopted standards identical to California's. Thu, 01 Nov 2018 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C1651264-989B-8A24-BAB5256F89E98260 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C1651264-989B-8A24-BAB5256F89E98260 "Alaska is different." So said Chief Justice John Roberts when the U.S. Supreme Court last took up this case two years ago in Sturgeon v. Frost (Sturgeon I). When the court hears a second oral argument in Sturgeon v. Frost (Sturgeon II) next Monday, it will once again consider whether a form of transportation unknown to most people outside of Alaska - a hovercraft (an amphibious vehicle that glides over land and water) - can be used in the Yukon-Charley Rivers National Preserve conservation system unit (CSU). Why, you may ask, would the court bother (twice) with such an arcane and seemingly inconsequential set of issues involving a place that most of us will never even visit, much less on a hovercraft? Wed, 31 Oct 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8EF62272-CF83-6AC3-66839E2B419D955A http://www.progressivereform.org/CPRBlog.cfm?idBlog=8EF62272-CF83-6AC3-66839E2B419D955A On November 5, the Supreme Court will hear oral argument in Virginia Uranium, Inc. v. Warren, which could test the extent to which a court will explore a state legislature's motives when evaluating whether a state statute is pre-empted by federal law. The facts concern the largest uranium deposit in the United States, located in south-central Virginia. The petitioners are owners of the deposit who wish to mine uranium, and they are challenging a 1983 statute by which the Virginia General Assembly passed a moratorium on uranium mining. Tue, 30 Oct 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8DB26577-9C38-DA68-6E985EC4BC09D6CA http://www.progressivereform.org/CPRBlog.cfm?idBlog=8DB26577-9C38-DA68-6E985EC4BC09D6CA The Center for Law, Energy, and the Environment published a survey of state energy policies through 2017. The trend toward renewables has continued in 2018. Even after nearly two years of the Trump presidency, states haven't given up. Instead, they're moving forward aggressively. If anything, Trump seems to have stimulated these states to try even harder. Mon, 29 Oct 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F5AD1CFD-B772-2E7A-247F6E35F64A46CB http://www.progressivereform.org/CPRBlog.cfm?idBlog=F5AD1CFD-B772-2E7A-247F6E35F64A46CB Cities in the San Joaquin Valley continue to land among the American Lung Association's top 10 most polluted communities in the country. Meanwhile, on Tuesday, the comment period closed on the Trump administration's plans to ratchet back federal emissions standards and eliminate California's authority to run its crucial car emissions programs. Although the administration has its eyes on greenhouse gas controls, what's at stake is California's ability to transition to low- and zero-emission vehicles, a transition essential to reducing the pollutants that threaten public health in California and elsewhere in the nation. Thu, 25 Oct 2018 15:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BC213022-B58D-5BFC-4B8818FF0D462E7F http://www.progressivereform.org/CPRBlog.cfm?idBlog=BC213022-B58D-5BFC-4B8818FF0D462E7F In my last post, I talked about how Obama's Clean Power plan was the right response to a changing grid -- a grid that's in the process of changing even more. Wed, 24 Oct 2018 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=28778C1C-974A-FAEB-58EB27843D7B7642 http://www.progressivereform.org/CPRBlog.cfm?idBlog=28778C1C-974A-FAEB-58EB27843D7B7642 If you've been reading this blog or otherwise keeping up with environmental law, you've probably heard this a hundred times: In rolling back Obama's signature climate regulation, the Clean Power Plan, the Trump administration is relying on the idea that EPA's jurisdiction stops at the fence line. I've blogged previously about why this argument might not even apply because reducing your operating hours is something you can accomplish without getting close to the fence, let alone crossing it. But I want to talk a little more generally about why EPA should have some flexibility in interpreting the law to keep up with changes in the way the grid operates. Tue, 23 Oct 2018 14:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=28409F0C-C49E-AE58-C1147AD9111F66EA http://www.progressivereform.org/CPRBlog.cfm?idBlog=28409F0C-C49E-AE58-C1147AD9111F66EA The Trump administration has few plans to protect workers from emerging workplace health and safety hazards, according to the regulatory agenda released by the White House on October 16. This is nothing new for this administration, which has consistently neglected to take up worker protections, instead focusing the Occupational Safety and Health Administration's (OSHA's) resources on delaying and rolling back existing safeguards. Mon, 22 Oct 2018 13:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1E5FE5F1-B51E-BE7F-B3AE6107B183A5F3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1E5FE5F1-B51E-BE7F-B3AE6107B183A5F3 While hurricanes like Florence are technically "natural" disasters, the Carolinas experienced the ways that the distinctly human-made problems of social and economic inequality reinforce and aggravate storm damage. Exhibit A is the catastrophic breaches and spills from the enormous manure "lagoons" located on North Carolina's many factory-scale hog farms. Thu, 18 Oct 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EDD9BF5F-C36F-08C7-ECFF1322BA2D0231 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EDD9BF5F-C36F-08C7-ECFF1322BA2D0231 The Trump administration's Fall 2018 regulatory agenda dropped late on Tuesday night, and as with previous iterations of this preview of what's to come on the regulatory front, it is chock full of numbers - at least the kinds of numbers partisan ideologues and regulated industries care about. But what these numbers don't reveal are the kinds of things a decent society cares about. Basic things like how well we are protecting the health and welfare of children, for example. Wed, 17 Oct 2018 17:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=242077BB-B17E-457C-C2FCA77F94952D13 http://www.progressivereform.org/CPRBlog.cfm?idBlog=242077BB-B17E-457C-C2FCA77F94952D13 In its desperate effort to save the failing American coal industry, the Trump administration promised to use emergency powers to keep coal-fired power plants in operation even though they're not economically viable. That would have been the kind of disruptive change that Trump promised to bring to Washington. But the effort seems to have gone aground, according to Politico. This outcome tells us something about the gap between Trump's promises of committing regulatory mayhem and the realities of modern governance. Wed, 17 Oct 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=ED801BBE-D7FC-397F-4E358FE5D723EC54 http://www.progressivereform.org/CPRBlog.cfm?idBlog=ED801BBE-D7FC-397F-4E358FE5D723EC54 To serve the cause of justice, law enforcement must be prompt, even-handed, and appropriate to the circumstances of individual cases. In their handling of an important recent pollution case, however, the enforcement activities of the Environmental Protection Agency (EPA) and the U.S. Department of Justice (DOJ) have been none of those things. Tue, 16 Oct 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BC3BE3AC-C4C5-C6B2-B9585EA037DE1405 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BC3BE3AC-C4C5-C6B2-B9585EA037DE1405 Now that they have a fifth vote, conservative justices will march to the front lines in the intensifying war on regulation. What will their strategy be? Two tactics are likely, one long-standing and one relatively new. Both have the advantage of avoiding the outright repudiation of Chevron v. NRDC, 467 U.S. 837 (1984), although, as a practical matter, the outcome will be the same. Thu, 11 Oct 2018 15:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=57E7D2E2-CF66-734E-F1A0EC7ED1059C84 http://www.progressivereform.org/CPRBlog.cfm?idBlog=57E7D2E2-CF66-734E-F1A0EC7ED1059C84 Presidents since Ronald Reagan have, by executive order, required agencies to submit significant regulatory actions to the White House for review. Academic and public interest observers have variously criticized this review as slow, opaque, chaotic, lawless, and power-grabbing. Yet every president in the intervening years has not only embraced but also deepened the control of the White House over individual regulations. Even President Obama, who announced early in his first term that he was conducting a top-to-bottom review of this process, ultimately embraced strict White House control over the rulemaking proceedings of the executive agencies. President Trump has taken White House control over rules to a whole different dimension by ordering agencies to revoke two existing rules for every new rule they issue and by giving them "budgets" for the costs they may impose on private entities. Thu, 11 Oct 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=57C98091-E26A-474F-0354074E59E39729 http://www.progressivereform.org/CPRBlog.cfm?idBlog=57C98091-E26A-474F-0354074E59E39729 Part 2 of 2: Energy projections demonstrate a clear trend for clean energy and away from fossil fuels. These trends, directly and negatively, affect traditional electric utilities. About the time that rooftop solar financing was being consolidated by third parties such as SolarCity and Sunrun, utilities began to worry about a "death spiral." In such a scenario, customers would install solar rooftop panels, generate some or all of their electricity, and then either reduce their utility bills or, in some instances, sell their excess electricity back to the utility. To the extent that customers left the grid, the utility would have to recoup their fixed costs from a smaller customer base, thus increasing electricity prices and forcing more customers off the grid -- hence the downward spiral. Wed, 10 Oct 2018 15:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=53E96F35-D839-B4DD-609A84B4D89BB9B2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=53E96F35-D839-B4DD-609A84B4D89BB9B2 Part 1 of 2: On August 21, the Environmental Protection Agency (EPA) proposed the Affordable Clean Energy (ACE) rule as a substitute for the Obama administration's Clean Power Plan (CPP). The CPP had been stayed from going into effect by the U.S. Supreme Court, and the purpose of the substitute rule is to establish greenhouse gas emissions guidelines for states and existing coal-fired power plants. The comment period closes on October 31, and the final rule can be expected as early as February 2019. It's neither a secret nor a surprise that the rule will be harmful to human health and the environment. Wed, 10 Oct 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5383095F-B470-E26D-CDF0E1AD65F172F9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5383095F-B470-E26D-CDF0E1AD65F172F9 Until recently, you could be a very well-informed American - a lawyer, even - without ever having heard of the Chevron doctrine. That has changed enough that last month, The New Yorker had a "Talk of the Town" essay discussing Kavanaugh's views of the Chevron doctrine. The reason for the attention to Chevron is ultimately congressional deadlock, which means that the only viable path for big changes in policy is through the administrative process. That's how Obama created DACA and the Clean Power Plan; it's how Trump is trying to roll back Obama's achievements. Mon, 08 Oct 2018 10:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=46603615-E288-56C2-2FC7603F428CDB8B http://www.progressivereform.org/CPRBlog.cfm?idBlog=46603615-E288-56C2-2FC7603F428CDB8B The bald eagle, sea otter, timber wolf - these iconic animals and more have been saved by the Endangered Species Act (ESA). But the Trump administration doesn't seem to care about our country's natural heritage. It's using questionable arguments about the popular law in an effort to gut protections and convert our public lands into private assets. Fri, 05 Oct 2018 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8A21F1A1-E9F6-C698-4BA39EB7D4006651 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8A21F1A1-E9F6-C698-4BA39EB7D4006651 As Juliet Eilperin, Brady Dennis, and Chris Mooney of The Washington Post reported on September 27, the Trump administration seems to finally be acknowledging that climate change is real. But the motivation for recognizing that reality is cynical, at best, so rather than proposing doing something - anything - about climate change, the administration concludes we shouldn't bother trying. Wed, 03 Oct 2018 15:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=503772EC-FDF1-2BEF-8B0C2A1362BCDE4B http://www.progressivereform.org/CPRBlog.cfm?idBlog=503772EC-FDF1-2BEF-8B0C2A1362BCDE4B The reactions to our article, "Inequality, Social Resilience, and the Green Economy," have a clear message: We, environmentalists, have our work cut out for us. We wrote our article to start an overdue conversation about environmental policy and social and economic well-being, and we thank our commentators for joining us in starting this conservation. In response, we would note that, although protecting the environment and achieving justice has never been easy, the United States has made progress over time. We are persuaded, despite the caveats our commentators have identified, that the country can do so again. Tue, 02 Oct 2018 13:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=18379B53-A19B-71EB-8B4BAE30991D72F3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=18379B53-A19B-71EB-8B4BAE30991D72F3 Sunday marked the 25th anniversary of the issuance of Executive Order 12866, but it was hardly a happy occasion. For all intents and purposes, though, the order, which governs the process by which federal agencies develop regulations under the supervision of the White House Office of Information and Regulatory Affairs (OIRA), is dead. Despite all the glowing praise over the years and all the exaltations of its supposed durability, its health had been in decline for several years. It was just a matter of time before something like the Trump administration came along and put the final nail in its coffin. Mon, 01 Oct 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5C058023-B599-824F-33E92A46A594906E http://www.progressivereform.org/CPRBlog.cfm?idBlog=5C058023-B599-824F-33E92A46A594906E A tiny amphibian takes center stage in the first case of October 2018 term. The dusky gopher frog is native to the forested wetlands of the southern coastal United States, with a historical range from the Mississippi River in Louisiana to the Mobile River delta in Alabama. The frog breeds in ephemeral ponds - ponds that are wet for brief periods and then dry out completely - and spends the rest of its life in upland, open-canopy forests, living in burrows created by other animals. Today, the only known remaining population of the dusky gopher frog lives on a single pond in Mississippi. Fri, 28 Sep 2018 13:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B5397846-A543-8BE9-3D997B1C60A28295 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B5397846-A543-8BE9-3D997B1C60A28295 On Wednesday, October 3, the U.S. Supreme Court will hear oral argument in Knick v. Township of Scott. The case poses the question of whether property owners suing state or local governments under the Takings Clause are required to pursue their claims in state court (or through other state compensation procedures) rather than in federal court, at least if the state has established a fair and adequate procedure for awarding compensation if a taking has in fact occurred. Fri, 28 Sep 2018 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=211E5DD2-9C6F-60C4-2A845FE1C1222616 http://www.progressivereform.org/CPRBlog.cfm?idBlog=211E5DD2-9C6F-60C4-2A845FE1C1222616 The Trump administration is moving toward the view, long popular in industry, that when it regulates a pollutant, EPA can consider only the health impacts of that particular pollutant - even when the regulation will also reduce other harmful pollutants. This idea is especially important in climate change regulation because cutting carbon emissions almost always results in reductions of other pollutants like particulates that are dangerous to health. This may seem like a minor technical issue. But by ignoring the "co-benefits" of cutting carbon, the administration wants to justify drastic weakening of existing regulations. The administration's laser-like focus on the regulated pollutant is not consistent with the Clean Air Act, the legal basis for regulating carbon, or with general principles of law. Thu, 27 Sep 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=827D6019-FC8D-233B-5EFCD29E1C41888D http://www.progressivereform.org/CPRBlog.cfm?idBlog=827D6019-FC8D-233B-5EFCD29E1C41888D A recent study tells us that Hurricane Maria, which struck Puerto Rico in September 2017, may have caused as many as 4,600 deaths, far exceeding the initial official death toll of 64. In contrast, contemporaneous hurricanes in Texas and Florida appear to have caused far fewer deaths: 88 in Texas and 75 in Florida. The differing outcomes bring home the importance of Sidney A. Shapiro and Robert R. M. Verchick's recent article, which explores the way that underlying social vulnerability determines the impacts of major environmental transitions. Just as a hurricane's consequences differ dramatically depending on many socioeconomic factors - including infrastructure, access to medical care, and financial resources - the consequences of a shift to a green economy will differ based on the impacted communities' underlying characteristics - both for ill and for good. Wed, 26 Sep 2018 16:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DF229F3A-A4A0-B1E0-75A7D8E6EE5830E6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DF229F3A-A4A0-B1E0-75A7D8E6EE5830E6 The confirmation hearing for Brett Kavanaugh offered Americans a contemporary reminder of what the Framers of the Constitution had in mind when it comes to protecting many of our fundamental rights and liberties. When it came to individual access to civil courts, a right guaranteed in the Seventh Amendment, they couldn't have been clearer. No less than James Madison put the value of that guarantee in stark terms: "Trial by jury [in civil cases]," he said, "is as essential to secure the liberty of the people as any one of the pre-existent rights of nature." A CPR report out today, Civil Justice in the United States: How Citizen Access to the Courts Is Essential to a Fair Economy, details just how vital civil courts remain to promoting individual freedom, especially in the context of our modern economy, while also laying bare the effects of a years-long campaign to deny Americans meaningful access to the courts. Wed, 26 Sep 2018 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E789C53B-EB94-129D-1548278A2CE85CE9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E789C53B-EB94-129D-1548278A2CE85CE9 September 26 is Mesothelioma Awareness Day. The day is intended to share information about mesothelioma, an incurable cancer that forms on the linings of vital organs, typically the lungs, following asbestos exposure. While the prognosis for individuals diagnosed with the illness is grim, preventing it is very much possible. Tue, 25 Sep 2018 16:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B06E0F5D-D661-36F2-8D7DA43B353A77FF http://www.progressivereform.org/CPRBlog.cfm?idBlog=B06E0F5D-D661-36F2-8D7DA43B353A77FF Despite noisy political claims to the contrary, the weight of the evidence suggests that regulation has a small impact on the total number of jobs. Still, regulation is bound to have some effect on who has jobs, what kinds of jobs they have, and where those jobs can be found. How much should we care about that? Tue, 25 Sep 2018 13:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AFDC15E8-CE76-4E15-15F3365EE77BD161 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AFDC15E8-CE76-4E15-15F3365EE77BD161 On October 29, 2012, Hurricane Sandy made landfall on the New Jersey shore, claiming dozens of lives and destroying or damaging more than 300,000 homes. Properties along the shore were especially hard hit, with many oceanfront homes lifted off their foundations and tossed inland. All told, business losses were estimated at more than $30 billion. One issue raised by Hurricane Sandy - and the prospect of other, potentially even more severe storms in the future - is how to keep residents and businesses (and their occupants) out of harm's way. This question in turn implicates the rights and privileges of private property owners. Tue, 25 Sep 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1050A17F-9097-190A-608DCA8298D6F997 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1050A17F-9097-190A-608DCA8298D6F997 A green economy will generate thousands of new jobs - many more than will be lost to regulations on carbon pollution. But a green economy may also increase wealth inequality in some parts of the United States because people who lose jobs to carbon controls are not the same as those who will get them when the green economy blooms. For example, the kiln operator laid off from a cement plant in Virginia will probably not end up installing rooftop solar panels New Mexico. And based on the demographics of today's fossil fuel industry, job losses due to environmental regulations will likely affect whites, Hispanics, and African-Americans in significant numbers. But we think it is possible to adopt protective regulations that help contain job loss. Mon, 24 Sep 2018 15:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7B19772B-E46D-C7C5-0A4761BD059FA98B http://www.progressivereform.org/CPRBlog.cfm?idBlog=7B19772B-E46D-C7C5-0A4761BD059FA98B The Emergency Planning and Community Right-to-Know Act (EPCRA) mandates the public availability of two major types of information: 1) emergency plans and 2) information about toxic releases. While that sweep might be broad, the law's focus is actually fairly narrow. EPCRA mandates access to information that is likely to help reduce acute health effects from short-term exposure to chemical releases. In other words, EPCRA covers precisely the type of information that is key to ensuring the safety of civilians and first responders facing hurricanes, wildfires, flooding, and other disasters. The problem has been the lack of enforcement, as well as the information-limiting policies that many states have imposed. Mon, 24 Sep 2018 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0FBE47AD-AACE-DF0C-A300CEAF0BA4BBEB http://www.progressivereform.org/CPRBlog.cfm?idBlog=0FBE47AD-AACE-DF0C-A300CEAF0BA4BBEB The National Environmental Policy Act (NEPA) has particularly important implications in our world of disasters and climate change. Climate change is widely recognized by the scientific community as a significant factor in the intensification of hurricane events, flooding rains, sea level rise, and other actual or potential disasters. Fri, 21 Sep 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0F5AD2DD-D6EA-0CB6-643F41A6F33D6E65 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0F5AD2DD-D6EA-0CB6-643F41A6F33D6E65 Donald Trump has, in a sense, made good on his promise to "drain" Washington, D.C. - but not in the way many people probably thought he would. The exodus from our nation's capital has been made up of the scientists, diplomats, and policy experts that a democracy needs to function, not the high-powered, special interest lobbyists voters likely had in mind. Meanwhile, a raft of grifters has gleefully taken a temporary perch in the executive branch. The ensuing debacles, scandals, and assaults on safeguards and agencies have made it stunningly clear how critical a competent, public interest-focused executive branch is to our country's well-being. Thu, 20 Sep 2018 14:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A968269B-C263-DFCC-2197908F3262CE67 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A968269B-C263-DFCC-2197908F3262CE67 According to the Houston Chronicle, there were more than 100 releases of hazardous substances into land, air, and water during and after Hurricane Harvey. At least one dozen of the Superfund sites listed in or near Houston were flooded during the storm. To better protect communities, hazardous waste cleanups should be refocused on permanent reduction of toxicity and exposure, not simply containment, and facilities should be required to plan for disasters. Thu, 20 Sep 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0A05E4BC-E4B0-A488-85B3BDC69F1BBADE http://www.progressivereform.org/CPRBlog.cfm?idBlog=0A05E4BC-E4B0-A488-85B3BDC69F1BBADE On August 23, 2017, Texas Governor Greg Abbott declared a state of emergency as Hurricane Harvey approached the Texas Coast. That state of emergency was ultimately expanded to 60 counties in Texas. Emergency declarations in Texas (as in many states and for the federal government) allow the governor to unilaterally suspend specific rules and regulations if they are expected to hinder disaster recovery. The Texas Commission on Environmental Quality (TCEQ) asked Governor Abbott to suspend dozens of environmental rules on August 28, 2017, as Harvey was continuing to pummel Houston and the Texas Gulf Coast area. When environmental, health, and safety rules are waived during disasters, we may not only harm public health, but we may also never know the extent of that harm. The failure to report may be more problematic than the emission waivers themselves. Wed, 19 Sep 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=094A5589-E103-A635-F3CA875658F0524F http://www.progressivereform.org/CPRBlog.cfm?idBlog=094A5589-E103-A635-F3CA875658F0524F Workers helping to pick up the pieces after major weather disasters encounter a multitude of safety and health hazards as they begin rebuilding damaged homes and structures, restoring electricity and clean water, clearing fallen debris, cleaning up hazardous waste, repairing infrastructure, and reopening schools and public services. This post examines the way that subpar efforts to protect workers from unsafe and unhealthy working conditions effectively support, even exacerbate, the exploitative practices of companies seeking to make a quick buck off the devastation. Recommendations for protecting the health and safety of recovery workers follow. Tue, 18 Sep 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=088175F8-E674-1077-0854A322F333EE82 http://www.progressivereform.org/CPRBlog.cfm?idBlog=088175F8-E674-1077-0854A322F333EE82 As millions of Americans in Houston and throughout Florida and Puerto Rico are acutely aware, the most dangerous aspect of a hurricane is the water. In Houston, the 50 inches of water that fell over the course of a few days broke records and overwhelmed the city's flood control system. In Florida, Hurricane Irma's storm surge ravaged coastal communities hundreds of miles up and down the Atlantic and Gulf coasts. And in Puerto Rico, Hurricane Maria dumped more than two feet of rain in some areas, generating floodwaters more than a dozen feet high in low-lying areas throughout the island. The pathway of waterborne devastation was different for each of these storms, but one thing each of these locations had in common was hazardous and even lethal contaminants left behind by floodwaters. This raises some important questions about the state of America's water infrastructure and our preparedness for a new and more extreme reality. Mon, 17 Sep 2018 09:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=079D3CAB-FF4A-402A-78DAD9E018979C75 http://www.progressivereform.org/CPRBlog.cfm?idBlog=079D3CAB-FF4A-402A-78DAD9E018979C75 In recent disasters, the electric grid has failed. The consequences - ranging from inconvenience to the loss of life - underscore the importance of electric power. Electricity is not a convenience; it is a necessity. Electricity is not simply an input to economic growth; it is essential to daily life. In the face of power outages, what do we do and what should we do? Fri, 14 Sep 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E31F262F-C71C-2499-3B07DA4E26E4CFAC http://www.progressivereform.org/CPRBlog.cfm?idBlog=E31F262F-C71C-2499-3B07DA4E26E4CFAC The 2017 hurricane season demonstrated the "second disaster" phenomenon. Climate-fueled storms are the first, named disaster. The second disaster is the tragedy that results from the lack of preparedness of decision-makers -- at all levels -- who have failed to plan in a manner consistent with the risks presented. Perhaps few phenomena underscore that more than the post-disaster displacement and long-term relocation that climate change is increasingly inducing. While there is an infrastructure to manage post-disaster displacement and support displaced persons, its ability to effectively and equitably support individuals and communities has been lacking. For planned, long-term relocation, the circumstances are more concerning. The United States has no coherent and coordinated regulatory approach to address the core questions facing communities that will need to relocate. Thu, 13 Sep 2018 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E28E31CB-0950-A50C-70629D91DD756DA6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E28E31CB-0950-A50C-70629D91DD756DA6 Three months before Hurricane Irma hit Florida, the state relaxed what many had considered to be one of the best building codes in the country. That wasn't an anomaly. A report by the Insurance Institute for Business & Home Safety found that many states along the Atlantic and Gulf coasts either lack building codes or have relaxed them in recent years. When jurisdictions fail to plan, or plan too little, they squander the opportunity to avoid or mitigate significant problems. Wed, 12 Sep 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DB81D9AE-D895-9DA0-95D67BA543F65EA6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DB81D9AE-D895-9DA0-95D67BA543F65EA6 In the wake of Hurricane Harvey, Eileen and Jeff Swanson faced the unthinkable. They had just paid off the last of the mortgage on their $225,000 home in the Canyon Gate neighborhood of Houston, where they lived with two sons, one of whom is severely developmentally disabled. During the storm, a foot of water inundated their home, and in its wake, they faced $60,000 in costs to repair the damage. Like many Houston residents, the Swansons had no flood insurance. Tue, 11 Sep 2018 08:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DB041147-F8B7-5BFC-A3D15CD6528C549E http://www.progressivereform.org/CPRBlog.cfm?idBlog=DB041147-F8B7-5BFC-A3D15CD6528C549E In this chapter of From Surviving to Thriving, I explain the many roles of the Federal Emergency Management Agency (FEMA), the lead agency in disaster response, in creating resilience - from its leadership during disasters to setting standards for rebuilding and issuing flood maps - and highlight the ways in which it has failed in those roles. I then make a series of recommendations to remedy these failures and ensure that the federal government does better next time a life-threatening hurricane or other disaster hits Puerto Rico or any other part of the United States. Mon, 10 Sep 2018 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A8AD4E0C-C989-C63C-A77E294FD491B9F9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A8AD4E0C-C989-C63C-A77E294FD491B9F9 On August 15, 2017, President Trump issued an executive order to expedite federal infrastructure-related decisions by allowing only 90 days for permit decisions and cutting back on flood safety requirements. Enthusiastic Republicans hailed the step. For instance, Rep. Ralph Abraham (R-LA) said he was "thrilled by Mr. Trump's decision." He dismissed catastrophic flooding in Louisiana the previous year as an "isolated event," saying that the "bigger threat . . . is from costly regulations." Ten days later, Hurricane Harvey hit Texas and western Louisiana. An ounce of prevention is worth a pound of cure, or so goes the maxim. It could hardly be more apt than in the case of flood mitigation projects, since investments in resilience pay for themselves many times over when natural disasters strike. Fri, 07 Sep 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A818B6AE-FC47-8698-05F6C247DA1DA69A http://www.progressivereform.org/CPRBlog.cfm?idBlog=A818B6AE-FC47-8698-05F6C247DA1DA69A On September 6, 18 CPR Member Scholars and staff sent a letter to Sen. Elizabeth Warren expressing their support for her recently introduced bill, the Anti-Corruption and Public Integrity Act, in particular its provisions to reform the regulatory system so that it works for all Americans. These provisions are just one component of the bill's comprehensive effort aimed at restoring the principles of government "of the people, by the people, and for the people" to our policymaking institutions by ridding them of excessive corporate influence and by eliminating unnecessary barriers that defeat meaningful public participation in our governing processes. Thu, 06 Sep 2018 15:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E2614355-EAA6-AD83-DC903F0709B1925E http://www.progressivereform.org/CPRBlog.cfm?idBlog=E2614355-EAA6-AD83-DC903F0709B1925E By the end of the 2017 hurricane season, the American people were reeling from the impacts of Hurricanes Harvey, Irma, and Maria. The press documented the familiar cycle of compassion, frustration, and anger. As people suffered for days, weeks, and months in communities that were flooded, without power, and in need of food and other basic supplies, the Federal Emergency Management Agency (FEMA), the White House, and other agencies once again emerged in the role of villain for their failure to respond with adequate speed or resources, a failure with particularly deadly consequences in decimated Puerto Rico. Assigning blame and holding the federal government to account for these victims' suffering is an important step in learning from past mistakes. But alone, it is not enough. We also need to look at the institutions, laws, and policies that could better prepare our communities to withstand the inevitable storms of the future. Thu, 06 Sep 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A73A8D9B-08E2-5661-15D08CABD3B575ED http://www.progressivereform.org/CPRBlog.cfm?idBlog=A73A8D9B-08E2-5661-15D08CABD3B575ED The story is now familiar. An area of the United States is battered by a superstorm, hurricane, or other climate disaster, resulting in a calamity for the people who live and work there. The Federal Emergency Management Agency (FEMA) offers emergency assistance, but since it is not enough to address the harms that occurred, Congress acts to provide hundreds of millions of dollars of additional assistance. But imagine a counter-narrative, with a significantly better outcome. In that story, we would have paid attention - before disaster ensued - to how environmental protection and planning can prevent and minimize the harm that disasters cause to people, their housing, and the infrastructure of our cities, states, and territories. Steps to inform the public about risks, to adopt protective measures, and to enforce health, safety, and environmental standards could have minimized the human suffering and loss and minimized the economic costs associated with recovery. In a new report, more than a dozen of the nation's leading scholars present policy recommendations and reforms that can help governments and people work together to move from merely surviving disasters to thriving. Wed, 05 Sep 2018 09:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=11DF60DC-94CD-E8EE-B69F98AE897585DA http://www.progressivereform.org/CPRBlog.cfm?idBlog=11DF60DC-94CD-E8EE-B69F98AE897585DA Today, D.C. Circuit Court Judge and Supreme Court nominee Brett Kavanaugh begins his confirmation hearing before the Senate Judiciary Committee. Despite the disturbing lack of transparency around his service to the country during the George W. Bush administration, the show will go on. We asked CPR's Member Scholars and staff what they would ask Judge Kavanaugh if they had the opportunity. We present the highlights here. Tue, 04 Sep 2018 08:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DF197B2B-EBB5-BAD7-75398833999A6647 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DF197B2B-EBB5-BAD7-75398833999A6647 Tens of thousands of thoughtful - and not so thoughtful - words have been written about Supreme Court nominee Brett Kavanaugh's substantive positions on issues the court will face. At least one question has not been addressed, however: Is Judge Brett Kavanaugh so ideological about certain topics that he veers toward sloppiness? Thu, 30 Aug 2018 14:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6E1F7859-D51C-1FAF-6518E8176A3513F3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6E1F7859-D51C-1FAF-6518E8176A3513F3 In his first 19 months in office, Donald Trump has repeatedly defied established presidential norms -- so flagrantly that it almost obscures the many ways he's changed national policies for the worse. But despite all the scandals and mean-spirited tweets, it's likely that his most enduring impact will be his administration's systematic, reckless dismantling of ongoing efforts to curtail human-caused climate change. Thu, 30 Aug 2018 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=45E03458-D892-2699-452277D2A68CDE11 http://www.progressivereform.org/CPRBlog.cfm?idBlog=45E03458-D892-2699-452277D2A68CDE11 For disadvantaged communities, the so-called Affordable Clean Energy Rule (ACE) falls far short of the protections and opportunities included in the Clean Power Plan, the Obama administration rule that the Trump EPA is now attempting to repeal and replace. Wed, 29 Aug 2018 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=14781598-011F-57F9-24E49D98CF58AB70 http://www.progressivereform.org/CPRBlog.cfm?idBlog=14781598-011F-57F9-24E49D98CF58AB70 You've already heard a lot about Trump's pro-coal ACE rule. You're likely to keep hearing about it, off and on, throughout the next couple of years, and maybe longer. I've set out a rough timetable of what comes next and when. Tue, 28 Aug 2018 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DE05FDE8-DC77-392C-B7D399361C12D5FB http://www.progressivereform.org/CPRBlog.cfm?idBlog=DE05FDE8-DC77-392C-B7D399361C12D5FB Understandably, most of the attention at the beginning of the week was devoted to the rollout of the Trump administration's token effort to regulate greenhouse gases, the ACE rule. But something else happened, too. On Tuesday, a D.C. Circuit ruling ignored objections from the Trump administration and invalidated key parts of a rule dealing with coal ash disposal. That rule had originally come from the Obama administration, and the court agreed with environmentalists that it was too weak. Trump's efforts to weaken it further may have hit a fatal roadblock. Thu, 23 Aug 2018 10:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0698B51E-0EF9-094D-C0A8367EC034E0ED http://www.progressivereform.org/CPRBlog.cfm?idBlog=0698B51E-0EF9-094D-C0A8367EC034E0ED Earlier this week, 19 Member Scholars with the Center for Progressive Reform (CPR) submitted comments to the Environmental Protection Agency (EPA) that provide a detailed legal and policy critique of the agency's "benefits-busting" rulemaking. Wed, 15 Aug 2018 12:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6E7D60CC-C95E-06E0-B510DCC03F924315 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6E7D60CC-C95E-06E0-B510DCC03F924315 The Trump administration has aggressively sought to undermine public safeguards since taking office, all under the guise of making America great (again?). Nowhere has this been more evident than the Environmental Protection Agency (EPA), where Trump appointees have sought to attack most every standard adopted during the Obama era, as well as long-standing analytical procedures designed to ensure any new standards are evidence-based and scientifically sound. These attacks do not stop at EPA, however. Trump has also undermined worker protections at every turn. Tue, 14 Aug 2018 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=15E9F06C-A478-123B-951BC676151B3C70 http://www.progressivereform.org/CPRBlog.cfm?idBlog=15E9F06C-A478-123B-951BC676151B3C70 Last Thursday, the Ninth Circuit ruled that Scott Pruitt had no justification for allowing even the tiniest traces of a pesticide called chlorpyrifos (also called Lorsban and Dursban) on food. This is yet another judicial slap against lawlessness by the current administration. Mon, 13 Aug 2018 11:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0496D77A-FF05-94CB-D6EAB807003A7ABB http://www.progressivereform.org/CPRBlog.cfm?idBlog=0496D77A-FF05-94CB-D6EAB807003A7ABB Secretary of Commerce Wilbur Ross recently released a statement directing NOAA to "facilitate" water use to respond to California's wildfires (the statement follows several tweets in which President Trump implied that the cause of California's wildfires was the state's ill-advised decision to let some of its rivers flow downhill to the ocean). Because I've already seen a few befuddled headlines about what this all means, I thought a short post explaining a few key points about what NOAA can and can't do here would be helpful. Fri, 10 Aug 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4344F918-0BD2-0E50-39AC84148A574757 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4344F918-0BD2-0E50-39AC84148A574757 Federal laws and regulations play a crucial role determining the quality of our air, water, and natural resources. Well-researched and scientifically supported rules can bring enormous benefits to the American people, but regulatory rollbacks for little more than deregulation's sake can cause great harm. One example of the potential damage that a poorly crafted regulation may cause is the new proposal by the Environmental Protection Agency (EPA) and National Highway Traffic Safety Administration (NHTSA) to roll back a requirement that automobile manufacturers improve vehicle fuel efficiency in the first half of the 2020s. Thu, 09 Aug 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0BE6709A-09CF-9C93-10D669871098FF74 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0BE6709A-09CF-9C93-10D669871098FF74 The forced resignation of Scott Pruitt as administrator of the U.S. Environmental Protection Agency (EPA) brought celebration and relief in many quarters. Pruitt was a walking scandal machine who generated an endless stream of headlines about spending abuses, cozy relationships with industry lobbyists, first-class travel at government expense, and aides asked to perform personal tasks, including buying lotions and mattresses and unsuccessfully helping his wife land a Chick-fil-A franchise. Of more lasting consequence, he loyally adhered to the extreme, anti-environmental policies of his boss, President Trump. So, while Pruitt's departure was good news for anyone who's serious about public corruption, it remains to be seen whether it will have any impact on environmental policy. Thu, 02 Aug 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6B077DA9-AF28-4AF6-4A4CC344CFDAC1D6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6B077DA9-AF28-4AF6-4A4CC344CFDAC1D6 In a previous essay, we critiqued the U.S. Environmental Protection Agency's (EPA) recently proposed transparency rule, arguing that the proposal conflicts with best scientific practices and would further erode the EPA's ability to do its job. According to supporters, the central goal of the proposed rule is to increase the transparency of regulatory science. Unfortunately, the proposal does not begin to deliver. No matter how many times the word "transparency" is repeated to characterize the proposal, its effects would reverse progress. It also gives appointees like former EPA Administrator Scott Pruitt and his successors unrestricted and unreviewable authority to reach politically motivated decisions that exclude high quality research. Wed, 01 Aug 2018 15:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=68AA0645-9FD2-0F41-E60CF8E0BC5F7372 http://www.progressivereform.org/CPRBlog.cfm?idBlog=68AA0645-9FD2-0F41-E60CF8E0BC5F7372 Andrew Wheeler will be on the hot seat today when he heads to Capitol Hill for his first appearance before the Senate Environment and Public Works Committee as Acting Administrator of the EPA. Senators initially scheduled the hearing when Scott Pruitt was Administrator and his ethical problems had reached such epic proportions that his party's support was starting to erode. With Pruitt out and Wheeler in, today's hearing has the potential to be more about environmental policy than conflicts of interest and failures of management - a welcome change. We will be following closely to see if Andrew Wheeler will be as committed to four retrograde policies as Scott Pruitt was. Wed, 01 Aug 2018 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6AAC8456-A82F-A12F-4A8BC64924F30477 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6AAC8456-A82F-A12F-4A8BC64924F30477 In the fitting last act of his corrupt reign as the Administrator of the U.S. Environmental Protection Agency (EPA), Scott Pruitt handed a gift to companies who profit from producing cheaper trucks by dispensing with modern pollution control equipment. He arranged for political appointees at EPA to issue memoranda that together promised that EPA would not enforce an existing legal limit on production numbers for the super-polluting trucks. Although Acting EPA Administrator Andrew Wheeler has since taken back Pruitt's parting gift to industry, the episode remains relevant to assessing EPA's modus operandi in the Trump era. The memos initially committing EPA to a policy of non-enforcement were executed by two powerful officials -- Susan Bodine and William Wehrum, both lawyers -- who still have positions at EPA. Moreover, Wheeler's memorandum withdrawing amnesty for the super-polluting trucks recommits the agency to "expeditiously" finalizing its troubled proposal to revoke a regulation that had at last required modern pollution controls for these dirty trucks. Tue, 31 Jul 2018 15:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=36E41112-978D-8AB4-BFDFC44BFB79F784 http://www.progressivereform.org/CPRBlog.cfm?idBlog=36E41112-978D-8AB4-BFDFC44BFB79F784 Lawsuits play a critical role in shaping the laws that guide government regulation of the environment; and the U.S. Supreme Court - which has lately been almost evenly divided in important environmental cases - often has the last word on the government's crucial ability to protect public health and the environment from the perils of pollution. President Trump's controversial nomination of Judge Brett Kavanaugh to replace centrist Justice Anthony Kennedy on the nation's highest court is thus a matter of crucial importance for the future of environmental pollution control. Unfortunately, a preliminary review of Kavanaugh's judicial writings and votes provides little basis for optimism regarding the positions he will take in environmental cases if his nomination to join the Court is confirmed. Tue, 31 Jul 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=74D9A5A4-A354-BDBA-4D6E9CBCE157AF36 http://www.progressivereform.org/CPRBlog.cfm?idBlog=74D9A5A4-A354-BDBA-4D6E9CBCE157AF36 Most of us take for granted the federal regulations that make our air cleaner, our drinking water purer, our food, highways, and workplaces safer, and our economic transactions less vulnerable to fraud and abuse. And few of us realize the extent to which those protections are subject to reversal by federal courts applying legal principles prescribed by the Supreme Court. If confirmed to the Court, Judge Brett Kavanaugh would be a fervent vote against even well-established forms of regulation. Mon, 30 Jul 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3FE04480-C70A-67E7-B5CD9A8B7ED744DD http://www.progressivereform.org/CPRBlog.cfm?idBlog=3FE04480-C70A-67E7-B5CD9A8B7ED744DD Today, the Mid-Atlantic Regional Office of the Environmental Protection Agency officially released its assessment of Chesapeake Bay restoration progress. This marked the formal conclusion of the multi-year process known as the "midpoint assessment" for the Chesapeake's cleanup plan. Fri, 27 Jul 2018 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=73D15F0B-0B60-CF84-EA80F8896A63010D http://www.progressivereform.org/CPRBlog.cfm?idBlog=73D15F0B-0B60-CF84-EA80F8896A63010D When Judge Brett Kavanaugh was nominated for the open U.S. Supreme Court seat, I was interested in his energy law opinions and began reading them together with some of his environmental law decisions. They seem to be written by two different judges. Thu, 26 Jul 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0CDFD8F5-009A-F45F-D0A706F8C673707A http://www.progressivereform.org/CPRBlog.cfm?idBlog=0CDFD8F5-009A-F45F-D0A706F8C673707A President Trump's nomination of Judge Brett Kavanaugh to a lifetime seat on the Supreme Court has enormous environmental and public health implications - true of any high court nomination, but particularly true in this case because he would replace Justice Anthony Kennedy, the high court's long-time swing vote. There is no shortage of opinions as to what Kavanaugh's appointment would mean for the future of environmental protection and our essential (and rightly popular) environmental laws, such as the Clean Water Act, Clean Air Act, and Endangered Species Act. After reading through some of these articles and opinion pieces, I can't help but wonder what his appointment might mean for the future of the landmark effort to restore the Chesapeake Bay. Wed, 25 Jul 2018 14:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DB9E0E72-C5AD-8B0E-6B6FE469BF77DE39 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DB9E0E72-C5AD-8B0E-6B6FE469BF77DE39 If Judge Brett Kavanaugh's Supreme Court confirmation process goes as quickly and affirmingly as his supporters hope, one of the cases he'll hear on his first day on the bench will invite him to consider an imponderable question: Whether it's possible to put a dollar value on an endangered species. Wed, 25 Jul 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DA51DA1F-A8F2-2E27-4D0E2F6745EB1AC9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DA51DA1F-A8F2-2E27-4D0E2F6745EB1AC9 "This is a case about executive power and individual liberty." That is how Judge Brett Kavanaugh started the opinion he wrote for a three-judge panel of the D.C. Circuit Court of Appeals holding that the structure of the Consumer Financial Protection Bureau (CFPB) was unconstitutional. That opinion is one among many that reflects Supreme Court nominee Kavanaugh's belief that administrative agencies are in a constitutionally precarious position that demands strong judicial supervision. Many believe that, as a result, a Justice Kavanaugh would be a reliable vote in favor of industry and against administrative agencies and the environmental, health, safety, and consumer protections they enforce. Tue, 24 Jul 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D40C0B71-E5DC-2016-EEE56BB9F71773E2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D40C0B71-E5DC-2016-EEE56BB9F71773E2 Scott Pruitt's narcissistic reign as EPA Administrator consumed advocates' collective energies, and rightfully so. Then came the orchestrated events surrounding Justice Kennedy's retirement and President Trump's pick to fill the vacancy, thrusting Brett Kavanaugh to center stage. Environmental protection seems imperiled as the Court is poised to take a hard "right" turn if Kavanaugh is confirmed. But as we continue to keep a vigilant eye on EPA and the future trajectory of the Supreme Court, let's not forget weighty environmental legislation currently making its way through Congress: the 2018 Farm Bill. Mon, 23 Jul 2018 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=078B6A66-942B-9F8F-4AF3A0A36BD768B7 http://www.progressivereform.org/CPRBlog.cfm?idBlog=078B6A66-942B-9F8F-4AF3A0A36BD768B7 Presidents control crucial government agencies with authority over the environment, food and drug safety, and workplace conditions. Through various environmental, health, safety, and other laws, Congress has given these agencies broad authority to issue rules and regulations that affect the lives of every American. But current law provides safeguards against arbitrary decisions - safeguards that Judge Brett Kavanaugh would weaken or eliminate if confirmed to the U.S. Supreme Court. Thu, 19 Jul 2018 15:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=00A51DF0-D300-CAC0-0144F641CD1B18F8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=00A51DF0-D300-CAC0-0144F641CD1B18F8 Last month, two Inspectors General issued scathing reports about their departments' behavior. The Justice Department's IG got all the attention, while largely overlooked was a disturbing report from the Interior Department IG, who concluded that the agency had no reasonable rationale for halting a major study of the health risks of mountaintop removal mining. The study was already under way, and nearly half of its $1 million price tag had already been spent, but Secretary Ryan Zinke and his lieutenants pulled the plug, presumably because they didn't want to have to face its likely findings. They told investigators it was "because they did not believe it would produce any new information and felt costs would exceed the benefits." Thu, 19 Jul 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A20CF0A3-C288-F8E3-F25FB110F818C599 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A20CF0A3-C288-F8E3-F25FB110F818C599 Any Minnesotan who has ever dipped a canoe paddle, pitched a tent, or laced up a hiking boot while visiting the Boundary Waters Canoe Area Wilderness can tell you why it is the nation's most-visited wilderness area and considered a crown jewel of Minnesota. Unfortunately, Twin Metals, a subsidiary of the Chilean mining giant Antofagasta PLC, has its eye on the area in hopes of operating a sulfide-ore copper-nickel mine, bringing one of the world's most toxic industries to the edge of the Boundary Waters. Despite the devastating impact expected on the local economy and environment, President Donald Trump's Interior Department is bending over backwards to support the push to pollute. Tue, 17 Jul 2018 15:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9F4A97D4-C239-BFEF-9CBF31B93F6682A2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9F4A97D4-C239-BFEF-9CBF31B93F6682A2 At the end of June, in a vote divided along partisan lines, the Federal Energy Regulatory Commission (FERC) handed down a sweeping order that will impact electricity markets in a wide swath of the country - likely at the expense of renewable energy and nuclear power. Unfortunately, like Trump's power plant bailout, the result may be to delay the closing of coal-fired power plants. That's a serious problem. A new study by researchers at Resources for the Future shows that a two-year delay in plant closings would cause 353-815 deaths and release 22 million extra tons of carbon. A two-year delay would cause one death for every four or five coal mining jobs it saved for those two years. Thu, 12 Jul 2018 14:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9B182C9F-0B05-FB8F-D8B4405D08F57944 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9B182C9F-0B05-FB8F-D8B4405D08F57944 Last night, President Donald Trump set the stage for a contentious debate about American social and economic welfare in the decades to come, nominating a Washington insider with a narrow worldview to the Supreme Court. Brett Kavanaugh's opinions on issues related to reproductive and civil rights are at the forefront of many voters' minds, but there's another danger that deserves just as much attention: What Kavanaugh would do on issues involving protections for consumers, workers, and the environment if confirmed by the Senate. Tue, 10 Jul 2018 10:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=091CB643-0CFA-B356-0B8D5B91DC26C30C http://www.progressivereform.org/CPRBlog.cfm?idBlog=091CB643-0CFA-B356-0B8D5B91DC26C30C In addition to deciding the fate of a Supreme Court nominee, the Senate must soon consider whether to approve Brian Benczkowski as head of criminal enforcement for the Department of Justice and a nominee to replace Scott Pruitt as EPA administrator. In early 2017, I urged senators to fulfill their constitutional responsibilities by only approving nominees who would faithfully execute the laws of the United States. But the Senate approved Pruitt anyway, with disastrous results. The chamber now needs to play its constitutional role of protecting the rule of law from Trump's relentless assault on our safeguards and our democracy. Mon, 09 Jul 2018 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6A346A98-DF17-773F-BFEA535E2285FB33 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6A346A98-DF17-773F-BFEA535E2285FB33 When it comes to regulatory protections for health, safety, and the environment, the Small Business Administration (SBA) and its Office of Advocacy don't always put the public interest first. Falling in line with industry and small-government conservatives, it often opposes public protections, particularly where small businesses are concerned. So I was delighted to see a faint ray of sensibility peek through the SBA's usual anti-safeguard cloud last week when it issued a press release announcing its collaboration with a professional organization of accountants to help promote regulatory compliance assistance for small businesses. Thu, 05 Jul 2018 12:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2F8028EC-F58C-128D-7085B7D70942122A http://www.progressivereform.org/CPRBlog.cfm?idBlog=2F8028EC-F58C-128D-7085B7D70942122A In June, the Supreme Court decided two cases that could have significant implications for environmental law. The two cases may shed some light on the Court's current thinking about the Chevron doctrine. The opinions suggest that the Court may be heading in the direction of more rigorous review of interpretations of statutes by agencies like EPA and the SEC. Mon, 02 Jul 2018 13:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=967CFBFF-F901-4017-8876DE9743F31103 http://www.progressivereform.org/CPRBlog.cfm?idBlog=967CFBFF-F901-4017-8876DE9743F31103 Soon after his confirmation, EPA Administrator Scott Pruitt quickly set out to take a "whack-a-mole" approach to advancing his anti-safeguard agenda, attacking particular rules designed to protect Americans and the environment from specific hazards - climate change, various air and water pollutants, and so on - one by one. But with his latest set of proposals, he's looking to recreate EPA in his own pro-polluter image by instituting extreme and systematic changes in how the agency does its work. The result would be a radically different EPA - one that puts corporate profits ahead of the public's well-being. Thu, 28 Jun 2018 10:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9223F488-D405-795B-845443E5E91AED30 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9223F488-D405-795B-845443E5E91AED30 June 22 marks the two-year anniversary of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (colloquially referred to as TSCA reform or new TSCA). The 2016 law provided some hope that the U.S. Environmental Protection Agency (EPA) would finally address the potential risks from tens of thousands of untested and unregulated chemicals common in our households and hygiene products, our food and drinking water, our air, and our workplaces. Unfortunately, under President Trump and Scott Pruitt's leadership, EPA has undermined the law. Fri, 22 Jun 2018 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6AF5F0D8-D5D0-2078-79BB9BDAA3C0AA32 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6AF5F0D8-D5D0-2078-79BB9BDAA3C0AA32 On June 20 in this space, I took a look at the progress that three Chesapeake Bay watershed states - New York, Pennsylvania, and West Virginia - have made in implementing their Watershed Implementation Plans (WIPs), on their way - perhaps - to meeting the Total Maximum Daily Load (TMDL) pollution reduction targets for 2025. In this post, I'll take a look at Delaware, Maryland, Virginia, and Washington, DC. Thu, 21 Jun 2018 14:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FC6822CD-EF5F-D7C9-48E94A7F03F91111 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FC6822CD-EF5F-D7C9-48E94A7F03F91111 On June 21, CPR Member Scholar and Vermont Law School Professor Laurie Ristino will testify at a hearing before the Subcommittee on Agriculture, Energy, and Trade of the House Small Business Committee. The majority's not-so-subtle objective for the hearing is to apply familiar conservative talking points against federal regulations to the specific context of small farms. Thu, 21 Jun 2018 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=26B06D6E-B1F4-E6B1-DE99FDCC414F94A2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=26B06D6E-B1F4-E6B1-DE99FDCC414F94A2 The Chesapeake Bay restoration effort is arguably one of the largest conservation endeavors ever undertaken. The Bay watershed is made up of 150 major rivers and streams and contains 100,000 smaller tributaries spread across Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia and the District of Columbia. It supplies drinking water for more than 17 million residents and is one of the most important economic drivers on the East Coast of the United States. Wed, 20 Jun 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FC48BE60-BFD2-4743-CA0A14C366F0D1F1 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FC48BE60-BFD2-4743-CA0A14C366F0D1F1 The U.S. Environmental Protection Agency (EPA) Administrator Scott Pruitt recently opened another front in his battle to redirect the agency away from its mission to protect human health and the environment. This time, he cobbled together a proposed rule that would drastically change how science is considered during the regulatory process. Tue, 19 Jun 2018 10:58:05 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F2CE8B0E-A1A1-68E7-D85991EF2A1531C9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F2CE8B0E-A1A1-68E7-D85991EF2A1531C9 The Trump administration is doing its best to wipe out Obama's regulatory legacy. How will the courts respond to such a radical policy change? Mon, 18 Jun 2018 12:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C19372FD-EECD-39D4-27D172374F4EF500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C19372FD-EECD-39D4-27D172374F4EF500 Before the Trump administration, there was surprisingly little law on agencies' power to delay the effectiveness of final rules from previous administrations. A small cohort of judicial decisions came out of the Reagan years, and a handful of cases emerged from subsequent administrations. These decisions, together, made clear that agencies' decisions to delay final rules were reviewable by the courts and that a delay of a rule's effective date was itself an act of substantive rulemaking subject to the notice-and-comment requirements of the Administrative Procedure Act (APA). Thu, 14 Jun 2018 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CC1031B7-94BA-DA05-75D040B70E143804 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CC1031B7-94BA-DA05-75D040B70E143804 It is widely recognized that President Trump has pushed an aggressive anti-regulatory agenda on the environmental front, but this agenda often hides a second, anti-free-market battle waged in the energy context. Wed, 13 Jun 2018 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6552C8CF-B232-3CB0-1336BEBB8D18A7B7 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6552C8CF-B232-3CB0-1336BEBB8D18A7B7 On June 5, a 19-year-old construction worker named Kyle Hancock was smothered to death when a deep trench where he was working collapsed. R.F. Warder Inc., the construction company that hired Hancock to help fix a leaking sewage pipe, and the bosses it employed are responsible for his death, plain and simple. Their failure to shore the trench to prevent a collapse was grossly negligent, readily foreseeable, eminently preventable and, therefore, criminal. Tue, 12 Jun 2018 16:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C81CBD7A-054E-9E85-D4214FB14D66D0EC http://www.progressivereform.org/CPRBlog.cfm?idBlog=C81CBD7A-054E-9E85-D4214FB14D66D0EC Science is hard, environmental policy is complicated and regulatory science can seem endlessly confounding. It does not have to be. Earlier this year, the Chesapeake Bay partners stepped into a time-worn trap, heeding calls from overly cautious states to wait for more refined scientific modeling of climate change impacts before taking action to eliminate pollution in the Chesapeake Bay and its tributaries. Having punted action until 2021 at the earliest, the Bay Partnership needs policies to prevent further delay. An innovative policy tool called "stopping rules" could be the answer. Mon, 11 Jun 2018 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C79A4316-ABB4-9F9A-F0E548FF53C07127 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C79A4316-ABB4-9F9A-F0E548FF53C07127 Tuesday afternoon, three CPR Member Scholars - William Buzbee, Lisa Heinzerling, and Rena Steinzor - will be among the experts featured at a major symposium on the threats facing our system of regulatory safeguards. Mon, 04 Jun 2018 11:53:58 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F0E5E41C-01C2-9426-61EC253B4E6E38A0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F0E5E41C-01C2-9426-61EC253B4E6E38A0 As one of America's first colonies, Virginia has a long history of industrialization and its consequent pollution along its waterways. It also has a long history of floods. This combination provides a potential for toxic flooding, putting Virginia's population and livelihoods at risk. Thu, 31 May 2018 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EF73FEBC-0C19-49D9-07193389AE99CCF5 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EF73FEBC-0C19-49D9-07193389AE99CCF5 The federal government is responsible for responding to major floods and runs the federal flood insurance program. It also has millions of dollars of its own infrastructure at risk from floods. Yet the government is failing to deal effectively with flood risks before the fact. Wed, 30 May 2018 08:39:31 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B81BD50A-B674-69A4-0C91C120BF6E5531 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B81BD50A-B674-69A4-0C91C120BF6E5531 Under the guise of greater transparency, EPA's Scott Pruitt is proposing to restrict the use of studies for which the underlying data is not completely available to the public. CPR's Sid Shapiro explains why that's a miserable idea. Tue, 29 May 2018 09:50:29 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B77A52F3-DAC9-701C-94815B38290FD0B8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B77A52F3-DAC9-701C-94815B38290FD0B8 Back in 2007, the Intergovernmental Panel on Climate Change (IPCC) noted the likelihood of an increase in what is now often referred to as "climate change" or "climate justice" litigation. The reason for the increase, according to the IPCC, is that "countries and citizens [will] become dissatisfied with the pace of international and national decision-making on climate change." Just over a decade later, that observation now looks quite prescient, with several cities and counties taking the oil industry to court over climate-related damages. Mon, 21 May 2018 12:50:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=21F2FEAD-CB8A-E6AC-769F43D28CA7C36B http://www.progressivereform.org/CPRBlog.cfm?idBlog=21F2FEAD-CB8A-E6AC-769F43D28CA7C36B In the era of Trump, one bright spot remains what's happening in cities across the nation. Here are some numbers: 402 U.S. mayors have endorsed the Paris Agreement and announced their intention of meeting its goals, while 118 have endorsed the goal of making their cities 100 percent renewable. A bit of quick research provides a sample of what some major cities are already up to. Thu, 17 May 2018 11:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5077BD4C-E0E9-5083-280DFD428CE08F81 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5077BD4C-E0E9-5083-280DFD428CE08F81 CPR President Rob Verchick recently sat down to talk with one of our newest Member Scholars, Professor Laurie Ristino of Vermont Law School, about the connections between climate change, food security, and policymaking tools like the Farm Bill that could be better used to promote sustainable agricultural practices. We're excited to share an audio recording of that conversation here as a "soft launch" of a new product at CPR - our "Connect the Dots" podcast. It's a work in progress. Our first mini-series will focus on climate change adaptation, with episodes coming soon that explore issues related to climate-driven displacement, migration, and relocation; occupational health and safety protections; and water quality restoration in the United States. Tue, 15 May 2018 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4BEBAB97-AC91-BFEF-7F7E9BC791D1FA0D http://www.progressivereform.org/CPRBlog.cfm?idBlog=4BEBAB97-AC91-BFEF-7F7E9BC791D1FA0D The White House released its Spring 2018 Unified Agenda of Regulatory and Deregulatory Actions on May 9 with little fanfare. A close examination of the agenda for the Occupational Safety and Health Administration (OSHA) shows that protecting worker health and safety is anything but a priority for the Trump administration. Rather, the agency will continue to focus on weakening worker protections. Mon, 14 May 2018 14:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2AA65C59-D026-3D02-6624CFFB84827C9E http://www.progressivereform.org/CPRBlog.cfm?idBlog=2AA65C59-D026-3D02-6624CFFB84827C9E On May 9, six senators, led by Sen. Maggie Hassan of New Hampshire, criticized Trump administration "regulatory czar" Neomi Rao and her office for what appears to have been a slapdash review of a highly controversial Environmental Protection Agency (EPA) draft policy designed to stifle the agency's progress on advancing environmental and public health protections. Rao is the administrator of the White House Office of Information and Regulatory Affairs (OIRA), a small but powerful bureau located within the Executive Office of the President. For nearly four decades, OIRA has enjoyed broad and largely unchecked authority to interfere in pending rulemakings and to secretly quash or water down those measures that might be politically inconvenient for the president. Thu, 10 May 2018 15:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F17B6775-D359-D00F-BCF3C1F09D7AF5DA http://www.progressivereform.org/CPRBlog.cfm?idBlog=F17B6775-D359-D00F-BCF3C1F09D7AF5DA Texas and Puerto Rico both got hit very hard last year by major hurricanes. But the federal government moved a lot more quickly to get help to Texas. In a new paper, I document the difference and explore the reasons. Although I won't go into all the details here, this is a situation people need to know about. Thu, 10 May 2018 12:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E803B795-BA89-988F-C6E96A4A65C540FA http://www.progressivereform.org/CPRBlog.cfm?idBlog=E803B795-BA89-988F-C6E96A4A65C540FA Over the last couple of weeks, conservatives in Congress have continued their assault on public safeguards using the once-obscure and once-dormant Congressional Review Act (CRA). If their latest adventure succeeds, it will be the 16th public protection that these members, working with in concert with President Donald Trump, have obliterated over the last year, laying waste to a broad and diverse range of measures related to public health, safety, the environment, and consumer financial protection. The latest attack underscores the important themes outlined in a new report out today, The Congressional Review Act: The Case for Repeal. Wed, 02 May 2018 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1DBA8FE9-B109-E5C5-D4D9F870826A5050 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1DBA8FE9-B109-E5C5-D4D9F870826A5050 The U.S. Department of Agriculture's Food Safety and Inspection Service (USDA/FSIS) proposed a rule on Feb. 1 to alter inspection procedures for hog slaughter plants by revoking the existing cap on maximum line speeds and transferring key inspection tasks from USDA inspectors to private plant workers. These changes to current practices raise numerous concerns for worker health and safety, all of which the agency fails to address in the proposal. Because of these concerns, Center for Progressive Reform (CPR) Member Scholars Martha McCluskey, Tom McGarity, Sid Shapiro, Rena Steinzor, and I sent comments to the agency on April 30, urging it to go back to the drawing board and account for the considerable worker health and safety risks its proposal creates before moving forward. Tue, 01 May 2018 10:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=ED3AC22D-FD49-F8FE-B51DB0CE6C477EC0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=ED3AC22D-FD49-F8FE-B51DB0CE6C477EC0 "They sat at the Agency and said, 'What can we do to reimagine authority under the statutes to regulate an area that we are unsure that we can but we're going to do so anyway?'" When he said those words, Scott Pruitt was talking about the Obama administration. But it seems to be a pretty accurate description of the "transparency" proposal he issued last week. Mon, 30 Apr 2018 10:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E35FF5B2-E1B0-3532-98BEC1FB9B2513C3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E35FF5B2-E1B0-3532-98BEC1FB9B2513C3 On Saturday, April 28, CPR will observe Workers' Memorial Day by remembering fallen workers whose lives were taken from this world too soon and by renewing our pledge to fight for all working people. Wed, 25 Apr 2018 14:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E7899091-0C7A-DCB7-F17EEC9997825948 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E7899091-0C7A-DCB7-F17EEC9997825948 Last week, the House Agriculture Committee passed a pock-marked, micro-legislated Farm Bill along strict party lines. It's a shameful goody bag of legislative delights for a few that comes at the expense of the majority of the American people. Wed, 25 Apr 2018 10:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E197F963-D7DC-7ED5-03A42D72D4F8BB3C http://www.progressivereform.org/CPRBlog.cfm?idBlog=E197F963-D7DC-7ED5-03A42D72D4F8BB3C On April 25, anti-environmental members of the House Natural Resources Committee will hold a hearing provocatively titled, "The Weaponization of the National Environmental Policy Act and the Implications of Environmental Lawfare" - yet another in a long line of conservatives' attempts to justify myriad legislative attacks against this bedrock environmental law. As more than 100 CPR Member Scholars and other academic leaders explain in a letter to committee members, though, the hearing would be more aptly titled "The Mythification of NEPA." Tue, 24 Apr 2018 16:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=ADB481D9-B0AA-3738-0D3D483433DE9181 http://www.progressivereform.org/CPRBlog.cfm?idBlog=ADB481D9-B0AA-3738-0D3D483433DE9181 As Hurricane Harvey lingered over Texas in 2017, it created a wall of water that swallowed much of Houston. Catastrophic flooding over a wide swath of southern Texas left towns, cities, and the countryside under feet of water. The floodwaters sloshed toxic chemicals from the area's 10 oil and gas refineries, 500 chemical plants, and 12 Superfund sites around "like a wet mop," according to one resident who lives near the ExxonMobil refinery and chemical plant. With climate change and increasingly frequent extreme weather events, we are at risk for more Houston-like "toxic soup" flooding events. We have tried to tame our rivers to keep ourselves dry while allowing industry to build in floodplains and closing our eyes to the risks of toxic releases during floods. Wed, 18 Apr 2018 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5385FE20-EAFB-1713-D82276594EAA8E02 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5385FE20-EAFB-1713-D82276594EAA8E02 An MIT professor has a great idea for a molten metal battery that could outperform lithium batteries. Of course, like many great ideas, this one might not pan out. But even if it does pan out technically, it might never get to the commercial stage. Fri, 13 Apr 2018 09:55:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=46FDA537-FB97-EF24-300C0C1D79C1D9D9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=46FDA537-FB97-EF24-300C0C1D79C1D9D9 This morning, CPR Member Scholar and George Washington University Law Professor Emily Hammond is set to testify before the House Judiciary Committee's Subcommittee on Regulatory Reform, Commercial, and Antitrust Law at a hearing that will look at two highly flawed bills. While their particulars differ, each is conspicuously (if a bit clumsily) designed to rig the environmental permitting process to allow industry groups to ram through big infrastructure and construction projects while shutting out the public from its traditional and vital role of meaningful participation and engagement. Thu, 12 Apr 2018 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1281E087-A805-46E5-659986653B1914FB http://www.progressivereform.org/CPRBlog.cfm?idBlog=1281E087-A805-46E5-659986653B1914FB Check out some recent op-eds by CPR's Member Scholars and staff. Wed, 11 Apr 2018 12:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1520695F-B9A5-EC74-4E56C251749507EB http://www.progressivereform.org/CPRBlog.cfm?idBlog=1520695F-B9A5-EC74-4E56C251749507EB The Center for Progressive Reform has been closely watching the development and implementation of the Chesapeake Bay restoration plan since its inception. As part of our ongoing commitment to ensure the success of the plan, known as the Bay TMDL, we have developed a new web-based resource focused on the issues and decisions related to the TMDL's midpoint assessment process. The page is a one-stop shop for advocates, members of the media, and residents concerned about restoring the health of the Chesapeake Bay, as well as the streams and landscapes throughout its watershed. Mon, 09 Apr 2018 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EAE51381-D8E0-D38A-AC29EDA8AED3EE77 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EAE51381-D8E0-D38A-AC29EDA8AED3EE77 A new report in the Philosophical Transactions of the Royal Society A published earlier this week presents a suite of new scientific and policy research meant to improve and drive forward progress under the Paris Climate Agreement. The report -- from the oldest science journal in the western world -- is the culmination of presentations first delivered by attendees at the 25th anniversary conference of the University of Oxford's Environmental Change Institute. CPR Board President and Member Scholar Rob Verchick is among the contributing authors. Thu, 05 Apr 2018 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B65D9D79-FC2D-782B-C9C073F3F84E389F http://www.progressivereform.org/CPRBlog.cfm?idBlog=B65D9D79-FC2D-782B-C9C073F3F84E389F There are three important climate lawsuits pending in federal court. Here's the state of play and what to expect next. Mon, 02 Apr 2018 10:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=41C308A4-EA97-D167-04AE35B342FA51E4 http://www.progressivereform.org/CPRBlog.cfm?idBlog=41C308A4-EA97-D167-04AE35B342FA51E4 It's no secret that the Trump administration and coal companies have drawn a bullseye on reversing coal's declining fortunes in wholesale electricity markets, where competition and inexpensive natural gas have driven coal's market share down from 50 percent in 1990 to about 30 percent today. Feeling bullish about their prospects in a sympathetic administration, owners of coal and nuclear plants have tried to extract subsidies to prevent what they view as premature retirements of large power plants. Fri, 30 Mar 2018 12:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AAF42F17-EFA1-1BD0-A568CC8FDCC4FCD9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AAF42F17-EFA1-1BD0-A568CC8FDCC4FCD9 In my last post, I described how a database housed by the Maryland Department of the Environment allows tracking of land development activities in real time. This database not only gives us the ability to track the recent scale and pattern of habitat destruction in Maryland, but it also can be used by regulators to build a tool that will allow the state to meet its commitment under the Chesapeake Bay restoration framework to account for and offset the growth in Bay pollution from new sources. Thu, 29 Mar 2018 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1AAAC3CF-CBB4-C1F1-5953F119A116A7D4 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1AAAC3CF-CBB4-C1F1-5953F119A116A7D4 In a recent post, I described the broad failure of Chesapeake Bay states to follow EPA's basic expectations to account for pollution growth under the restoration framework known as the Bay TMDL. This failure is one important contributor to the current state of the Bay restoration, which is years behind schedule. If states don't hold the line on new pollution by offsetting or otherwise accounting for growth, their jobs only become that much more difficult, and the final restoration of the Bay gets that much further out of reach. In this post and the next, I focus more closely on one state - Maryland - to examine how it responded to EPA's expectation to account for growth and demonstrate what a year of unchecked growth means for water quality in the state. Wed, 28 Mar 2018 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1A7C3B6A-FDC7-E0EB-E7F617F9480FCBE8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1A7C3B6A-FDC7-E0EB-E7F617F9480FCBE8 The spirited conservative attack on regulatory guidance is both puzzling and hypocritical. Admittedly, agencies sometimes issue guidance to avoid the quicksand of informal rulemaking. But the law makes clear that without full-dress procedure, guidance can never replace rules and statutes in enforcement actions. Remedying agency overreach in the rare circumstances when enforcement cases are based primarily on guidance is a straightforward legal matter -- defendants have only to tell their problems to a judge. Given the acute problems of hollow government and browbeaten civil servants these days, an irate defendant likely need only threaten to sue to compel an agency's general counsel to back down. Tue, 27 Mar 2018 11:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DF6BBC34-B69D-11BA-CA23DEC701477727 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DF6BBC34-B69D-11BA-CA23DEC701477727 Maryland's Occupational Safety and Health division (MOSH) is struggling to carry out its mission of ensuring the health and safety of Maryland workers, according to CPR's analysis of a mandatory performance report the agency provided to the state legislature late last year. Mon, 26 Mar 2018 13:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DEC2EB11-DB2D-EC4F-5FB410B1474FC617 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DEC2EB11-DB2D-EC4F-5FB410B1474FC617 A few weeks ago, I discussed why the periodic written "expectations" from the Environmental Protection Agency (EPA) are critically important to the Chesapeake Bay's restoration. These expectations communicate to the state and federal partners in the Chesapeake cleanup effort what they need to do and when in order to implement the coordinated plan of action necessary to reach the cleanup plan's interim and final reduction targets. This includes the fundamental expectation that states account for future pollution growth as they work to reduce existing pollution under the Chesapeake Bay Total Maximum Daily Load (Bay TMDL) cleanup plan. Wed, 21 Mar 2018 11:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D9A52858-A3F2-19C0-3DD6D81C72C69710 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D9A52858-A3F2-19C0-3DD6D81C72C69710 At the tail end of winter, a succession of "bomb cyclones" and nor'easters has brought fierce winds and surging coastal flooding to the mid-Atlantic and Northeast. These storms remind us of the deepening vulnerability of our coastal and riverfront communities and infrastructure to intensifying extreme weather and flooding. This "freakish" winter weather comes just six months after a previously unimaginable trio of hurricanes laid waste to parts of Texas, Florida, and Puerto Rico. The flooding that followed the hurricanes also unleashed significant amounts of toxic chemicals into the environment, signaling that any state with industrial facilities near coasts and in floodplains - including Virginia and other mid-Atlantic states - could be vulnerable to toxic floodwaters in the aftermath of powerful storms. Mon, 19 Mar 2018 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D8AFC6D9-EA65-8A2C-1FE5692D3D338552 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D8AFC6D9-EA65-8A2C-1FE5692D3D338552 Workers have the right to speak up about health and safety hazards they encounter on the job. And they should be able to feel comfortable coming forward with their concerns without having to worry that they will be fired, demoted, or in some other way retaliated against for doing so. That is exactly what the drafters of the Occupational Safety and Health Act (OSH Act) had in mind when they included a provision in the 1970 law prohibiting employers from retaliating against workers who report concerns to the Occupational Safety and Health Administration (OSHA) or to its state counterparts (in states that choose to operate their own OSH programs with approval from federal OSHA). Wed, 14 Mar 2018 14:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=77169FDF-CDB8-9401-D358DBC2D17BADBA http://www.progressivereform.org/CPRBlog.cfm?idBlog=77169FDF-CDB8-9401-D358DBC2D17BADBA Who doesn't want to breathe clean air? Unfortunately, a "bipartisan" bill now working its way through the Senate would undermine our ability to address a growing source of air pollution - livestock operations. The so-called Fair Agriculture Reporting Method Act (S. 2421), or the "FARM Act," would amend the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), better known as the Superfund law, to exempt agricultural producers from reporting toxic air emissions. The bill's clever name is a misnomer: it lets livestock producers stop reporting emissions altogether. Its passage would seriously undermine our ability to address a growing pollution problem that disproportionately impacts rural communities and socially disadvantaged Americans. Tue, 13 Mar 2018 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=12D56A0B-935E-9407-184D2C95643E5CD0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=12D56A0B-935E-9407-184D2C95643E5CD0 Later this morning, CPR Member Scholar and Georgetown Law Professor Lisa Heinzerling will testify before the House Small Business Committee at a hearing that appears to be aimed at reveling in the Trump administration's assault on regulatory safeguards. In her testimony, Professor Heinzerling will explain why the celebratory mirth and merriment from the committee's majority members and their invited witnesses is misplaced and most likely premature. Wed, 07 Mar 2018 08:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E0C45922-F914-0261-C333B72E2E13C2F9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E0C45922-F914-0261-C333B72E2E13C2F9 Recently, the Environmental Integrity Project released a report highlighting the freeze that Administrator Scott Pruitt has placed on the enforcement of the nation's environmental laws. The headline figures are stunning: "Civil Cases for Pollution Violations Decline by 44 Percent and Penalties Down by 49 Percent." And these numbers may understate the situation, as former EPA officials have noted that some of the cases and penalties that the agency has been touting were brought by the previous administration, not Pruitt's EPA. Thu, 01 Mar 2018 14:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DE85E89F-ECCE-2669-A3BF3BAF8AFD4070 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DE85E89F-ECCE-2669-A3BF3BAF8AFD4070 At a workshop on Friday, March 2, representatives of the Chesapeake Bay jurisdictions will meet in Baltimore to make important final decisions about how to address pollution - previously accounted for - from the Conowingo Dam and climate change. Decisions these representatives make about how to address pollution loads through the Chesapeake Bay Total Maximum Daily Load (TMDL) agreement will shape how and whether Bay jurisdictions are able to meet their Bay restoration goals during the crucial third and final phase of the restoration compact before its 2025 deadline. Wed, 28 Feb 2018 14:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A497E70A-04DC-19B9-17E0F1BB32189F2B http://www.progressivereform.org/CPRBlog.cfm?idBlog=A497E70A-04DC-19B9-17E0F1BB32189F2B Last week, the Trump administration released the annual Draft Report to Congress on the Benefits and Costs of Federal Regulations. As befitting this auspicious occasion, the administration pulled out all the stops: targeted op-eds from high-ranking administration officials; relevant operatives dispatched to the leading Sunday morning talk shows; and even a televised press conference with the president himself. Just kidding. They buried it. Quietly. Late on a Friday afternoon. When Congress was away on recess. Wed, 28 Feb 2018 08:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7BC1BC0F-B237-C8D4-BF13F87503CF9AB2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7BC1BC0F-B237-C8D4-BF13F87503CF9AB2 Attorney General Jeff Sessions has wasted little time portraying himself as the prosecutor-in-chief of street - as opposed to white collar - crime, rejecting this month even a broadly bipartisan effort to reduce sentences for nonviolent crime supported by a coalition that spans the Koch brothers and the NAACP. Civil enforcement has also fallen off, as documented in investigative reporting by The New York Times and others. Both trends will almost certainly continue given the more subtle sabotage of corporate enforcement implemented in a series of largely overlooked policy changes announced by memoranda and speech. Thu, 22 Feb 2018 08:15:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=492E3C2E-FAAE-C04A-1FA99376513D2372 http://www.progressivereform.org/CPRBlog.cfm?idBlog=492E3C2E-FAAE-C04A-1FA99376513D2372 Anyone who's ever been to an organizational retreat can tell you that the worst fate any plan can suffer is to sit on a shelf, unused and collecting dust. The Chesapeake Bay restoration effort is one of the most complex and sophisticated environmental restoration plans ever created. But despite all the resources and energy that have been brought to bear under the Chesapeake Bay Total Maximum Daily Load (TMDL) initiative, the tie that binds it all together is simply the "expectations" of the Environmental Protection Agency (EPA). In a few weeks, EPA will release its expectations for the final phase of the Bay TMDL (Phase III), which ends in 2025. This document is an important piece in the current plan to restore the Bay's health. Mon, 19 Feb 2018 10:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D17F26C5-E2EE-CE0A-14A684E4D4E91666 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D17F26C5-E2EE-CE0A-14A684E4D4E91666 Last week, the Ninth Circuit decided Hawai'i Wildlife Fund v. County of Maui, a case involving Maui County's practice of pumping wastewater into wells, from which the wastewater flowed through a subsurface aquifer and into the Pacific Ocean. The county, according to the court, needed a National Pollutant Discharge Elimination System (NPDES) permit for this practice. It did not matter that the county's wastewater traveled through groundwater on its way to the ocean; according to the Ninth Circuit, releasing pollutants from a point source to navigable waters still requires permitting even if those pollutants' pathway is indirect. Thu, 15 Feb 2018 13:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D2C42808-0BB7-2BFB-95C58097F24F58BE http://www.progressivereform.org/CPRBlog.cfm?idBlog=D2C42808-0BB7-2BFB-95C58097F24F58BE This year more than most, it bears repeating that a budget is a moral document, or at least that it has moral implications. It's particularly important to remember not just because President Trump's budget is so appallingly skewed in favor of military spending - this looks to be one pricey parade - but also because of the administration's puzzling infrastructure proposal. Thu, 15 Feb 2018 08:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E053E473-B98D-EBA2-4EFBA832BAA7281C http://www.progressivereform.org/CPRBlog.cfm?idBlog=E053E473-B98D-EBA2-4EFBA832BAA7281C It was an early holiday present to the nation's biggest polluters. EPA Administrator Scott Pruitt announced in early December that he was drastically changing the way EPA reviews polluters' compliance - or lack thereof - with the Clean Air Act. Today on Capitol Hill, CPR Member Scholar Emily Hammond will explain that this dramatic shift in policy is a complete abnegation of EPA's statutory responsibilities and, beyond that, puts lives and economic opportunity at risk. Wed, 14 Feb 2018 08:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9EDD1E0E-F828-BE44-44E504A41D537DF7 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9EDD1E0E-F828-BE44-44E504A41D537DF7 Since the 1930s, Congress has tried to formulate an effective farm "safety net," oscillating among different schemes in order to protect farmers from the severe economic impacts of the Depression and the Dust Bowl. What started as a New Deal emergency intervention has become an entrenched legislative ritual. Indeed, this perennial Farm Bill debate remains a relic of 20th century policy. It's designed to perpetuate, not to innovate. Thu, 08 Feb 2018 11:15:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9DF2420A-9FA9-EB04-61145CBC5F44B63E http://www.progressivereform.org/CPRBlog.cfm?idBlog=9DF2420A-9FA9-EB04-61145CBC5F44B63E On January 4, the Department of the Interior (DOI) released its draft proposed program for oil and gas leasing on the Outer Continental Shelf (OCS). The proposed plan would end a broad ban on drilling imposed by President Obama and allow leasing and drilling on over 98 percent of the OCS, including the waters off Florida's Atlantic and Gulf coasts. On January 9, after a brief meeting with Florida Governor Rick Scott, Interior Secretary Ryan Zinke announced that, contrary to the proposal, he was removing Florida's coast from any consideration for new "oil and gas platforms." One might assume that this announcement meant that Florida was no longer at risk from offshore drilling. But from a legal perspective, Zinke's announcement lacked any legal force or effect. Indeed, in an ironic twist, this announcement made any eventual effort to provide protection for Florida's waters legally vulnerable. Tue, 06 Feb 2018 13:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3B970636-B82C-AC59-1FB32E7D612D939B http://www.progressivereform.org/CPRBlog.cfm?idBlog=3B970636-B82C-AC59-1FB32E7D612D939B On February 5, six CPR Member Scholars and staff members sent a letter to the Department of Labor's (DOL) Wage and Hour Division, calling on the agency to withdraw its proposal to repeal an Obama-era rule aimed at preventing employers from taking workers' hard-earned tips. Last week, Bloomberg Law uncovered a deliberate effort by the DOL to conceal an analysis showing that the proposal would allow business owners and managers to steal and misappropriate billions of dollars - that's "billions" with a "b" - of tips from workers. This theft would be especially devastating for the thousands of restaurant workers and bartenders whose tips represent the vast majority of their take-home pay. Mon, 05 Feb 2018 09:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=75370CB1-968C-1506-C902B8BF0C57D549 http://www.progressivereform.org/CPRBlog.cfm?idBlog=75370CB1-968C-1506-C902B8BF0C57D549 On the morning of January 26, 2016, Seattle police were called to a construction site where a worker, Harold Felton, was trapped in a collapsed trench. By the time officers arrived, the rescue operation had turned into a recovery; Felton, 36, had died at the scene. After a thorough investigation into the incident, prosecutors charged the construction company's owner with manslaughter in the second degree, a felony offense, and a violation of labor safety regulations resulting in a worker's death, a gross misdemeanor. Thu, 01 Feb 2018 09:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DA50A8C8-D30E-AA00-096133FCDB3D1A11 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DA50A8C8-D30E-AA00-096133FCDB3D1A11 President Trump's first State of the Union address contained numerous outrageous claims and statements, rendering a full dissection and critique practically impossible. Many have already singled out one line of the speech as worthy of particular condemnation, so I'll add mine. Early on, Trump made this statement to the rapturous applause of his conservative allies in Congress: "In America, we know that faith and family, not government and bureaucracy, are the center of American life." This claim is not only patently false, but it is dangerous and fundamentally counterproductive. Wed, 31 Jan 2018 14:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=03371B1F-D150-F9A3-B4D438B2B91B6375 http://www.progressivereform.org/CPRBlog.cfm?idBlog=03371B1F-D150-F9A3-B4D438B2B91B6375 President Trump would have us believe that safeguards for health, safety, the environment, and financial security generate untold "costs" for industry. But as with so many things that are clear to Donald Trump but that simply are not true, the source of the costs involved in regulation isn't the rule, it's the harm the rule seeks to prevent - the polluted air or water, the on-the-job safety hazards, the foodborne pathogens, the SUVs that roll over too easily, the wallboard that emits toxic chemicals, and so on. Wed, 31 Jan 2018 08:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F6999002-BB2B-7FA1-BA129F16D1D48C59 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F6999002-BB2B-7FA1-BA129F16D1D48C59 Progressives have rightfully taken issue with the Trump administration's policy goals, from immigration to the environment, from health care to worker safety. Given the president's decidedly unprogressive stances, one should not be surprised at the policy reversals from the prior administration. One might be surprised, however, and dismayed as well, at the cavalier disregard that the administration has shown for the law, both substantive and procedural. Tue, 30 Jan 2018 09:10:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A7CF1677-A352-5BB7-E0B44D50EF790B2B http://www.progressivereform.org/CPRBlog.cfm?idBlog=A7CF1677-A352-5BB7-E0B44D50EF790B2B Perhaps because he has so few real accomplishments to his name, President Donald Trump has developed a nasty habit of embellishing his record. From the size of the crowd at his inauguration to the number of floors in Trump Tower, he simply won't let a little thing like "reality" or "facts" or even "cardinal numbers" get in the way of his estimation of his own self-worth. Expect this behavior to be on full display at tomorrow night's State of the Union Address, where Trump will no doubt make several baseless claims about his achievements during his first year as Commander-in-Chief. One success he may tout - use of the Congressional Review Act (CRA) to repeal 15 regulatory safeguards - is a good example of such a claim that withers under scrutiny. Mon, 29 Jan 2018 08:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FEEAD2A4-D6EE-F51B-258EAFA999B5E604 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FEEAD2A4-D6EE-F51B-258EAFA999B5E604 Next Tuesday, President Trump will share his view of the state of our union. In anticipation of his likely self-congratulations on his regulatory record, I surveyed CPR's Member Scholars and staff for their thoughts on the state of the administrative state, posing the question: What does the Trump administration's regulatory record say about the state of social inequality in America? Some common themes emerged. Fri, 26 Jan 2018 08:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A60739E6-B7D8-44C7-8265CF679E4E959B http://www.progressivereform.org/CPRBlog.cfm?idBlog=A60739E6-B7D8-44C7-8265CF679E4E959B The U.S. Environmental Protection Agency (EPA) is a central instrument of the modern regulatory state. Whether from the perspective of environmental protection or regulatory economics, 2017 has not been a good year. Thu, 25 Jan 2018 09:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CA171CE8-016C-00CB-47C58C87E3F147A4 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CA171CE8-016C-00CB-47C58C87E3F147A4 On January 22, the United States Supreme Court decided National Association of Manufacturers v. Department of Defense, a case determining whether challenges to the "Clean Water Rule" or "Waters of the United States Rule" should be heard in federal district court or in the United States Court of Appeals for the Sixth Circuit. The answer, the Supreme Court unanimously held, is federal district court, and the Court remanded the case to the Sixth Circuit to dismiss the appellate court petitions. Mon, 22 Jan 2018 14:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=38D2CF13-F523-5F1E-C18026F3901184DD http://www.progressivereform.org/CPRBlog.cfm?idBlog=38D2CF13-F523-5F1E-C18026F3901184DD As Congress begins the complex task of crafting the next Farm Bill, much is at stake - from conservation to "food stamps" to rural economies. This blog post is the first in a series addressing important policy considerations with an eye toward making the Farm Bill more effective, rather than backsliding on these and other important issues. Wed, 17 Jan 2018 09:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2CF83DAA-0ABA-E168-A062AA46B0C4D91D http://www.progressivereform.org/CPRBlog.cfm?idBlog=2CF83DAA-0ABA-E168-A062AA46B0C4D91D Since the Endangered Species Act became law in 1973, the U.S. government has played a critical role in protecting endangered and threatened species. But while the law is overwhelmingly popular with the American public, critics in Congress are proposing to significantly reduce federal authority to manage endangered species and delegate much of this role to state governments. States have substantial authority to manage flora and fauna in their boundaries. But species often cross state borders, or exist on federal lands. And many states either are uninterested in species protection or prefer to rely on the federal government to serve that role. We recently analyzed state endangered species laws and state funding to implement the Endangered Species Act. We concluded that relevant laws in most states are much weaker and less comprehensive than the federal Endangered Species Act. We also found that, in general, states contribute only a small fraction of total resources currently spent to implement the law. Thu, 11 Jan 2018 13:15:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FDE9C68D-F115-74B0-6E07A2B2A6E3AD61 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FDE9C68D-F115-74B0-6E07A2B2A6E3AD61 On January 8, the Federal Energy Regulatory Commission (FERC) struck a resounding blow against the Trump administration's ill-advised agenda to put its thumb on the scale of the energy market by propping up the coal industry, unanimously rejecting a controversial proposal by Department of Energy (DOE) Secretary Rick Perry. Perry's plan would have resulted in working families and small businesses subsidizing the coal industry to the tune of hundreds of millions or even billions of dollars. Dozens of energy policy experts have explained the substantive issues of this action, but I want to focus on an important procedural matter - namely, how this episode demonstrates the importance of guarding the actual independence of independent regulatory agencies like FERC. Tue, 09 Jan 2018 12:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=96C57BAD-F071-BCF0-B2EB218C91A2D63C http://www.progressivereform.org/CPRBlog.cfm?idBlog=96C57BAD-F071-BCF0-B2EB218C91A2D63C CPR's Member Scholars and staff rounded out a prolific year of op-ed writing with pieces covering several topics, touching on the Endangered Species Act, the scuttling of criminal justice reform, saving the Chesapeake Bay, the Administration's efforts to unravel the Clean Power Plan, and the tax bill President Trump signed into law last week. Thu, 28 Dec 2017 10:52:40 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2A3D9B0F-FAD0-711E-AAE39CFB8777A850 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2A3D9B0F-FAD0-711E-AAE39CFB8777A850 The Obama Administration's Clean Power Plan would require utilities to improve efficiency at coal-fired power plants and reduce the use of those plants in favor of generators using natural gas or renewables. Head of EPA Scott Pruitt claims EPA can only require CO2 cuts that can be accomplished by utilities "inside the fenceline" of a power plant. Wed, 27 Dec 2017 11:49:18 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F8C3F255-AADA-4361-64B25E76B031FC6E http://www.progressivereform.org/CPRBlog.cfm?idBlog=F8C3F255-AADA-4361-64B25E76B031FC6E Despite the most extensive bipartisan support in many years for the reform of mass incarceration in the United States, the Trump administration has ignored this enormous problem and focuses solely on greater leniency for white collar criminals. Thu, 21 Dec 2017 07:05:39 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9973E3AE-0470-FDB5-E23AE0DFDBB9962A http://www.progressivereform.org/CPRBlog.cfm?idBlog=9973E3AE-0470-FDB5-E23AE0DFDBB9962A As with the spring 2017 iteration of the regulatory agenda, Trump makes clear he has no concern for working families. OSHA's fall agenda includes 16 planned activities, up from 14 in the spring. Of the 16, seven are listed as in the final stages. Not one of these rules would expand worker protections. Wed, 20 Dec 2017 10:18:15 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8CF94B27-F0FA-4B9E-AD7AB5857826553F http://www.progressivereform.org/CPRBlog.cfm?idBlog=8CF94B27-F0FA-4B9E-AD7AB5857826553F It's one thing to have a house writing style and to impose a certain amount of consistency across an entire department. We use serial commas on CPRBlog, for example, and we're holding out against using "the U.S." instead of "the United States," except as a modifier! But as usual, the Trump administration is going to extremes, with the plain goal of denying or obscuring reality. Tue, 19 Dec 2017 14:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6298F0B7-E801-1096-429088B2282EC468 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6298F0B7-E801-1096-429088B2282EC468 A widely endorsed theory of justice captures how thoroughly unjust the current congressional tax plan is. Understanding this and how it weaponizes wealth against most ordinary citizens may explain why so many people oppose it. Mon, 18 Dec 2017 13:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=25804622-BD57-5ACE-26234E3BC3097D46 http://www.progressivereform.org/CPRBlog.cfm?idBlog=25804622-BD57-5ACE-26234E3BC3097D46 On December 8, the Maryland Department of the Environment published its long-awaited nutrient trading regulations, capping more than two years of effort to develop a comprehensive environmental market intended to reduce the amount of nutrient and sediment pollution in the Chesapeake Bay. Today, the Center for Progressive Reform and the Environmental Integrity Project are releasing an analysis of Maryland's proposed nutrient trading program that highlights the three fundamental flaws that will prevent the new trading program from being a viable solution for Bay restoration. In fact, as we show, the trading program may ultimately create worsening water quality conditions if the flaws are not addressed. Mon, 18 Dec 2017 08:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=02397934-9B34-C0EB-2E1235AB28EC6A09 http://www.progressivereform.org/CPRBlog.cfm?idBlog=02397934-9B34-C0EB-2E1235AB28EC6A09 Starting on Day One, the Trump administration has perpetrated an all-out assault on essential public safeguards for health, safety, the environment, and American families' financial security, and on December 14, the president took the time to revel in all the damage he has overseen. The administration's anti-safeguard agenda for the coming year promises more of the same. Fri, 15 Dec 2017 03:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=96CA2CE1-9EC1-7252-7088B6BB320DFE58 http://www.progressivereform.org/CPRBlog.cfm?idBlog=96CA2CE1-9EC1-7252-7088B6BB320DFE58 Despite research demonstrating that climate change is adding millions of pounds of nutrient pollution to the Chesapeake Bay, Maryland Gov. Larry Hogan and his Bay states colleagues appear to be taking a page from the Trump playbook: Ignore this inconvenient truth. Thu, 14 Dec 2017 11:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=592E0A0A-C046-4573-C2EDE3028F705708 http://www.progressivereform.org/CPRBlog.cfm?idBlog=592E0A0A-C046-4573-C2EDE3028F705708 During the holiday season, many people put significant effort into plans for getting along with one another at family gatherings. Seating plans are carefully strategized and touchy subjects avoided. We've learned that enjoying our shared holiday demands that we all compromise a little. Plans for cooperation in managing the vast shrub-steppe plains of the American West - including thousands of acres in Nevada - are no different. Tue, 12 Dec 2017 10:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F100DC36-93AD-7648-B856BDA19DFB818E http://www.progressivereform.org/CPRBlog.cfm?idBlog=F100DC36-93AD-7648-B856BDA19DFB818E Lucas v. South Carolina Coastal Commission was the high-water mark of the Supreme Court's expansion of the takings clause, which makes it unconstitutional for the government to take private property without compensation. Lucas epitomized the late Justice Scalia's crusade to limit government regulation of property. The decision left environmentalists and regulators quaking in their boots, especially because of its possible impact on protection for wetlands and habitat for endangered species. Ultimately, however, Scalia failed to make a compelling case for ignoring other language in earlier cases dating back decades that spoke broadly of the government's power to limit harmful uses of property, rather than imposing the limits of common law doctrines on the government. Twenty-five years later, it is striking how little impact the case has had. Mon, 11 Dec 2017 09:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=314D0DB6-BC4B-3CE2-4977B4F3F79B71B4 http://www.progressivereform.org/CPRBlog.cfm?idBlog=314D0DB6-BC4B-3CE2-4977B4F3F79B71B4 The field of environmental law often involves tangential explorations of scientific concepts. Lately, one scientific term - hydrologic connectivity - seems to keep finding its way into much of my work. As for many others, this principle of hydrology became familiar to me thanks to its place at the center of one of the biggest fights in the history of environmental law, spilling onto the front pages and into the public consciousness. Wed, 29 Nov 2017 08:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8A669096-E7F0-E5F2-514EA67F158B0DA4 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8A669096-E7F0-E5F2-514EA67F158B0DA4 On Friday, November 24, Consumer Financial Protection Bureau Director Richard Cordray named Leandra English, the longtime CFPB Chief of Staff, to the post of Deputy Director. Based on legislation specific to the CFPB, that put her in a position to serve as Acting Director upon his departure. Cordray then resigned. A few hours after Cordray resigned, the White House announced that President Trump had selected OMB Director Mick Mulvaney to serve as CFPB Acting Director, invoking the President's powers under the more general Federal Vacancies Reform Act. Unfortunately, President Trump's actions may result in needless - and illegal - chaos at the CFPB. The President surely retains the power to choose the next CFPB Director, but only by nominating a candidate that the Senate confirms. Tue, 28 Nov 2017 13:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F57F905D-059A-A4A8-A2CE2485E402F400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F57F905D-059A-A4A8-A2CE2485E402F400 If there's a defining value to the tax bill now working its way through Congress, it's greed. How else to account for a bill that wipes out tax deductions for health care expenses, double-taxes the money you pay in state and local income taxes, eliminates the deduction for interest on student loans, and at the same time eliminates the tax that's now paid on estates in excess of $5.5 million, eliminates the alternative minimum tax, and slashes corporate taxes, all while adding $1.5 trillion to the federal debt? Had enough? If yes, here's a way to stand up for a different value: generosity. Today marks the sixth annual Giving Tuesday, the Internet and the nonprofit community's effort to add a grace note of social responsibility to the extended post-Thanksgiving kickoff to the holiday shopping season. Across the Internet and in your inbox and Twitter feed today, you'll find CPR and other nonprofits appealing for your support. Tue, 28 Nov 2017 08:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F48DC0AA-0AB2-6FBA-D1D16549F495A70D http://www.progressivereform.org/CPRBlog.cfm?idBlog=F48DC0AA-0AB2-6FBA-D1D16549F495A70D The Trump EPA's shrinking commitment to enforcement of the nation's environmental laws has focused new attention on state-level enforcement and the extent to which it does or does not address problems of environmental pollution and threats to public health. One recent - and ongoing - controversy, involving toxic chemical contamination of a river in North Carolina by a large and profitable corporation, provides some insights into both the promise and the shortcomings of state environmental law enforcement. It also sheds light on some aspects of contemporary corporate culture and the salutary role that careful investigative journalism and public opinion can sometimes play in prodding state regulators to respond effectively to corporate pollution. Mon, 27 Nov 2017 09:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EDA0D6C3-D93D-352D-2680F55E381F5A29 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EDA0D6C3-D93D-352D-2680F55E381F5A29 On Thanksgiving Day, families across the country will sit down for huge feasts, filling their bellies with turkey, stuffing, mashed potatoes, and lots of gravy. My mouth is watering just writing about it. In many households, it's tradition for each person at the table to say what they're thankful for and express their appreciation for the meal in front of them. But when it comes to that delicious meal, we often overlook the workers inside the poultry slaughter facilities and processing plants who do the incredibly labor-intensive and dangerous work required to bring our turkeys from farm to table. This year's the perfect time to get woke. Mon, 20 Nov 2017 14:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8D72A9E6-D44A-5BAD-1B1504A11920C6CD http://www.progressivereform.org/CPRBlog.cfm?idBlog=8D72A9E6-D44A-5BAD-1B1504A11920C6CD Everyone should be paying attention to the tax "reform" bills making their way through Congress. Whether you are a concerned citizen, a volunteer activist, or a career advocate, chances are the tax legislation will do much more than increase or lower your tax bill. While most of the attention is on the revenue side - who pays how much to keep the government running - the spending side is where people will get hurt. The Trump administration and Congress will undoubtedly use the resulting budget squeeze to further ratchet back crucial public investments in programs and protections like the Chesapeake Bay restoration effort. Fri, 17 Nov 2017 10:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E9539E6D-E67F-CEDB-1CB04B29ADE5BBD5 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E9539E6D-E67F-CEDB-1CB04B29ADE5BBD5 Those who take public safeguards seriously are well aware of the potential consequences that arise from the dangerous combination of poorly written pollution permits and lax - even absent - enforcement. From construction sites with failing erosion and sediment controls to ammonia and bacteria-spewing concentrated animal feeding operations, our waterways, their users, and vulnerable populations in the pathway of pollution suffer the consequences. Starting today, we add industrial stormwater to the ignoble list of poorly regulated sources of environmental pollution in Maryland. Thu, 16 Nov 2017 08:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=575387A9-A796-12D1-551FC69750CBA9FF http://www.progressivereform.org/CPRBlog.cfm?idBlog=575387A9-A796-12D1-551FC69750CBA9FF Today, CPR Member Scholar Emily Hammond is testifying at a Senate subcommittee hearing that will examine four bills that amount to "rifle shot" attacks on the Clean Air Act's public health and environmental protections. Hammond's testimony before the Subcommittee on Clean Air and Nuclear Safety of the Senate Environment and Public Works Committee casts in powerful terms what is at stake with these bills, highlighting how they contribute to the Trump administration's own assault on public safeguards. She also explains how these bills and the administration's actions are grossly out of step with the policy goals of the Clean Air Act and its more than 40 years of success in saving lives and protecting the environment. Tue, 14 Nov 2017 08:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=262EA98B-9DB2-70C3-790E185997C08B77 http://www.progressivereform.org/CPRBlog.cfm?idBlog=262EA98B-9DB2-70C3-790E185997C08B77 In an article just published in the Environmental Law Institute's Environmental Law Reporter, former Environmental Protection Agency (EPA) official Bob Sussman examines the tenure of Administrator Scott Pruitt thus far. I recently talked with Mr. Sussman about Pruitt's so-called "back to basics" approach at EPA, the rollbacks of environmental protections he has overseen so far, and Pruitt's numerous favors for special interests. Mon, 06 Nov 2017 08:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F01D06C0-BC2C-8447-F849B373AC6A187D http://www.progressivereform.org/CPRBlog.cfm?idBlog=F01D06C0-BC2C-8447-F849B373AC6A187D Scott Mugno, Vice President for Safety, Sustainability, and Vehicle Maintenance at Fed Ex Ground in Pittsburgh, Pennsylvania, is President Trump's pick to head the Occupational Safety and Health Administration (OSHA). One major concern is Mugno's connection to the notoriously anti-regulatory U.S. Chamber of Commerce, for which he is currently the chairman of the OSHA subcommittee of the group's Labor Relations Committee. This post highlights just a few of the many questions we would like answered before the Senate decides whether to confirm Mugno for the position. Thu, 02 Nov 2017 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BB87FB72-C687-9CC3-348B6D166619548C http://www.progressivereform.org/CPRBlog.cfm?idBlog=BB87FB72-C687-9CC3-348B6D166619548C The Trump administration's efforts to sidestep finalized regulations through stays or delays have so far met with judicial rejection in three straight decisions. As these courts have concluded, such a deregulatory strategy violates settled law that administrative agencies are bound by their own finalized regulations until they undo them through a new full rulemaking process. Environmental Protection Agency Administrator Scott Pruitt last week published a proposal to repeal the Obama administration's Clean Power Plan that similarly is headed for rocky shoals. Mon, 30 Oct 2017 14:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4B2AEF0B-9F91-6C83-F259F789B9676A96 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4B2AEF0B-9F91-6C83-F259F789B9676A96 Too often, workplace injuries and deaths result from company policies and practices that encourage and reward unacceptably risky behavior under the false pretense that cutting corners is standard practice and no one will get hurt. As a result, an average of 13 Americans are killed on the job every day, and many more are seriously injured. Over the past several decades, some state and local prosecutors have broken the mold and stepped forward to pursue charges against companies and executives who have committed crimes against workers. They have charged the wrongdoers for offenses under their states' criminal codes, with charges including manslaughter, aggravated assault, and reckless endangerment. The Center for Progressive Reform (CPR) has been cataloging these cases for over a year, and today, we launched the first-ever database of state prosecutions of "Crimes Against Workers." Mon, 30 Oct 2017 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E9E0F9B3-FF44-A03C-DB95248DA3BB9405 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E9E0F9B3-FF44-A03C-DB95248DA3BB9405 Today, I will testify before two subcommittees of the House Oversight Committee at a hearing that I hope will provide a critical examination of the Trump administration's so-called "Regulatory Reform Task Forces." Created by Trump's Executive Order 13777, these task forces are essentially designed to be "hit squads" embedded at each agency with the goal of carrying out the Trump administration's assault on public safeguards from within. In my testimony, I provide a comprehensive critique of the task forces, as well as Executive Orders 13771 and 13777, which they are charged with implementing. Ultimately, I conclude that the orders should be repealed and the task forces be disbanded. Tue, 24 Oct 2017 09:40:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=ED049A97-FF56-0294-DC70CC7CEB1BE1C0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=ED049A97-FF56-0294-DC70CC7CEB1BE1C0 On August 27, as Hurricane Harvey blew through the Houston area, the U.S. Army Corps of Engineers found itself between the proverbial rock and hard place. Since the 1940s, it had operated a flood control project to control the risk of flood damage to downtown Houston and the Houston Ship Channel. It had accomplished this by carefully controlling the release of flood waters from the project's dams. Now, however, the Corps confronted Hurricane Harvey, a megastorm generating massive, unprecedented volumes of flood water. The Corps faced the choice of either limiting water releases from the project to protect downstream properties at the cost of flooding upstream properties, or increasing project releases to protect upstream properties at the cost of flooding downstream properties. Not surprisingly, the Corps' decision to release up to 13,000 cubic feet per second from the project dams left everyone unhappy. Owners upstream and downstream from the project have now filed as least 61 separate lawsuits in the U.S. Court of Federal Claims (CFC) asserting a "taking" of their private property under the Takings Clause of the Fifth Amendment of the U.S. Constitution. Mon, 23 Oct 2017 16:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EB2ADCA9-ABA1-0FA1-0A3416BC585A41F8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EB2ADCA9-ABA1-0FA1-0A3416BC585A41F8 Individuals across the United States encounter hundreds of chemical substances every day and often simultaneously - in common household and hygiene products, in our food and drinking water, and in our air. Some of these chemicals present serious risks to our health and the environment and a heightened risk of harm for children, pregnant women, the elderly, and individuals with compromised immune systems. To this day, we are largely unprotected from all manner of chemical exposures, including chemicals widely known to be lethal and for which there is no safe level. I recently joined nine CPR Member Scholars in a letter to key members of Congress, calling on them to exercise their oversight authority over EPA and its implementation of the Toxic Substances Control Act (TSCA). Thu, 19 Oct 2017 14:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=13AD3D64-BBB9-8BFA-941C52F748788361 http://www.progressivereform.org/CPRBlog.cfm?idBlog=13AD3D64-BBB9-8BFA-941C52F748788361 On Oct. 10, EPA Administrator Scott Pruitt formally announced a repeal of the Clean Power Plan, regulation intended to curb greenhouse gas emissions from existing coal- and natural gas-fired power plants. This follows a directive only a week earlier by Energy Secretary Rick Perry for the the Federal Energy Regulatory Commission to start a process to essentially subsidize coal and nuclear power plants. At first blush, these developments give the impression that the U.S. power sector is about to take a dramatic turn, and these decisions do indeed represent a significant shift in U.S. policy. But major changes on the ground are unlikely to happen overnight, or perhaps even in the next several years, for many reasons. Topping the list are legal challenges and simply the way competitive energy markets work. Tue, 17 Oct 2017 11:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EA9BF618-0794-4F0C-393D501BD45740F1 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EA9BF618-0794-4F0C-393D501BD45740F1 CPR's Member Scholars and staff have continued to appear in the nation's op-ed pages to expose the ongoing assault on our safeguards by President Trump and Congress. Recent examples include pieces in the Houston Chronicle, The Hill, The Baltimore Sun, and more. Mon, 16 Oct 2017 10:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F3036E52-D072-7F36-5D1DF5BDB2147072 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F3036E52-D072-7F36-5D1DF5BDB2147072 Few things were more foreseeable than the Trump administration's repeal of the Clean Power Plan (CPP). The administration was never going to leave in place a regulation that disfavored coal and promoted the use of renewable energy in electricity generation. The only real questions were when and how. Tue, 10 Oct 2017 14:10:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=46E79F56-CF02-7F23-FB63095516859454 http://www.progressivereform.org/CPRBlog.cfm?idBlog=46E79F56-CF02-7F23-FB63095516859454 What happens in Washington gets a lot of attention. You probably also follow what's going on in your own state. But it's very hard to know what's happening in states across the country. In an effort to get a better sense of that, I've explored state activity on climate change and energy in a series of posts. This wasn't a fifty-state survey, or even a statistically valid random sample. But it does indicate what's happening in a range of states, some Republican and some Democratic, some on the coasts and others in the heartland. Wed, 04 Oct 2017 10:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B2336C06-F6C5-004C-5224D781505D71A2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B2336C06-F6C5-004C-5224D781505D71A2 On September 28, I joined senators and Senate staff for a Capitol Hill briefing hosted by Sen. Tammy Duckworth. Our discussion focused on the report I co-authored with my colleagues at the Center for Land, Environment, and Natural Resources, entitled Conservation Limited: Assessing State Laws and Resources for Endangered Species Protection, which investigates states' capacity to protect and recover endangered species by looking at how these laws compare to the federal Endangered Species Act (ESA). It also looks at state and federal funding for implementing the ESA. Tue, 03 Oct 2017 11:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D9069489-FDCD-B9C6-3B05157712841CEC http://www.progressivereform.org/CPRBlog.cfm?idBlog=D9069489-FDCD-B9C6-3B05157712841CEC While storms like Hurricanes Harvey, Irma, and Maria are unprecedented in many ways, they are not beyond imagination and not immune to safer and smarter policies. Fri, 29 Sep 2017 10:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0A9DE18F-05E1-552C-D3AE44AAA9DDA6A7 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0A9DE18F-05E1-552C-D3AE44AAA9DDA6A7 Government-sanctioned cruelty makes for shocking images, as the events of the past few weeks demonstrate. People in wheelchairs forcibly dragged from congressional hearing rooms for protesting legislative attempts to strip them of access to affordable health care. The uncertainty on the faces of Puerto Rican parents as they survey the damage to their homes in the wake of Hurricane Maria and wonder when - or if - officials in Washington will come to the aid of their families and those of their fellow citizens. In a White House speech scheduled for Monday, October 2, President Trump will affirm in no uncertain terms that his administration does not merely tolerate such brazen indifference to our country's most vulnerable members but intends to make cruelty its official policy going forward. Thu, 28 Sep 2017 14:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D82BDA7F-CCD3-4E46-CE013C55E2A48AA3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D82BDA7F-CCD3-4E46-CE013C55E2A48AA3 On September 28, CPR Member Scholar Rena Steinzor is scheduled to appear before the Subcommittee on Regulatory Reform, Commercial and Antitrust Law of the House Judiciary Committee to testify at a hearing focused on the Congressional Review Act (CRA). The CRA is a controversial law that has been aggressively used this past year by the majority in Congress and the Trump administration to repeal 14 regulatory safeguards that would have protected consumers, workers, and our environment. In her testimony, Steinzor makes the case for repealing the CRA, arguing that it is an ineffective tool for overseeing the executive branch and its recent abuses have served only to further erode public esteem for Congress as a democratic institution. Wed, 27 Sep 2017 02:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AB60F8A3-9A24-144B-2BB75BD3850058C6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AB60F8A3-9A24-144B-2BB75BD3850058C6 On September 25, a group of Member Scholars from the Center for Progressive Reform (CPR) submitted comments on the Trump administration's proposed rollback of the "waters of the United States" rule (technically, the rollback rule has been issued by EPA and the U.S. Army Corps of Engineers, but its support within those agencies comes only from the Trump administration's political appointees). The proposed rule addresses the scope of federal jurisdiction under the Clean Water Act - which means, in non-legal terms, that it decides which waters get protected by federal law. Tue, 26 Sep 2017 11:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=70E56602-A917-A2A2-AB95ED33949C36A8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=70E56602-A917-A2A2-AB95ED33949C36A8 The full scope of the heartbreaking devastation wrought by hurricanes Harvey and Irma - the human, economic and environmental toll - may not be completely understood for years. As we do what we can to help the victims, it is also time to think about how we can prepare for the inevitable here in Baltimore. After all, Baltimore floods more than most other cities in the United States and gets little help from our inadequate water infrastructure. Wed, 20 Sep 2017 13:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4086A200-A1C7-B737-7F615945D7E275E8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4086A200-A1C7-B737-7F615945D7E275E8 Three influential EPA offices - the Offices of Air, Water, and Chemical Safety and Pollution Prevention - share a common attribute. Each is at the center of a defining battle over its future. What is the future of climate regulation at EPA? How will the agency define "waters of the United States" given that the Trump administration is intent on dismantling the Clean Water Rule? And what will public safety officials do with last year's modifications to the outdated Toxic Substances Control Act? EPA has made bold moves under President Trump and Administrator Scott Pruitt on each of these fronts, so you'd be forgiven if you thought that a Senate-approved nominee were at the helm, guiding each office through rough waters. Not so. Tue, 19 Sep 2017 10:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E1412462-0316-09AD-66DDEFB9B546F144 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E1412462-0316-09AD-66DDEFB9B546F144 In the wake of Hurricanes Harvey and Irma, thousands of Texans and Floridians are out of work, some indefinitely. Without knowing when their employers might reopen for business (if at all) , many are uncertain how they're going to afford their next meal or purchase basic necessities, much less repair their damaged homes and property. At the same time, monthly bills are coming due. Fri, 15 Sep 2017 13:39:25 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3FD5ED0F-B6FC-B7A5-555118E891710CBF http://www.progressivereform.org/CPRBlog.cfm?idBlog=3FD5ED0F-B6FC-B7A5-555118E891710CBF As Hurricane Irma takes aim at the Florida coast, questions about property and community vulnerabilities abound, including for some of President Donald Trump's properties. A brief analysis by the Center for Progressive Reform (CPR) has found that while Trump's properties, including Mar-a-Lago, face significant risk of damage from the hurricane and from the ongoing impacts of climate change, surrounding neighborhoods and communities will have a much more difficult time rebuilding and recovering from the storm. Sat, 09 Sep 2017 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E3C1798C-B1A7-78C5-61F97E93D38020BE http://www.progressivereform.org/CPRBlog.cfm?idBlog=E3C1798C-B1A7-78C5-61F97E93D38020BE Last month, Secretary of the Interior Ryan Zinke submitted his long-anticipated report to President Trump that recommends dismantling and looting some of America's treasured monuments and antiquities. Tue, 05 Sep 2017 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6D080B2C-9189-383E-9E441CB26640F472 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6D080B2C-9189-383E-9E441CB26640F472 As the country bears witness to the impacts of Hurricane Harvey, a storm unlike any other, the Trump administration's policy of rolling back worker, emergency response, and environmental safeguards will all but ensure that victims of future flooding events will be exposed to toxic contamination. Wed, 30 Aug 2017 10:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D6C2342E-9ECF-1DAF-58B986C5743A99B3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D6C2342E-9ECF-1DAF-58B986C5743A99B3 Ten years from now, when a newly built wastewater treatment facility along the coast floods from a hurricane's storm surge, spreading sewage into the neighboring (most likely poor) community, where will the blame lie? And ten years from now, when a newly built highway in a floodplain is engulfed by flood waters, blocking residents, first responders, goods, and food, where will we point fingers? Thu, 24 Aug 2017 11:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A6D08BE6-EE8E-5F19-3F0B4F2326B110D2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A6D08BE6-EE8E-5F19-3F0B4F2326B110D2 Last week, more than two dozen law professors from around the country - many of them CPR Member Scholars - filed a friend-of-the-court brief with the U.S. Supreme Court, urging a fresh look at a lower court decision with sweeping implications for the balance of power between states and the federal government. The issue is vital to Louisiana because it affects whether oil and gas companies can be held liable for decades of damage they have done to the state's coastal wetlands. Wed, 23 Aug 2017 10:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=67FFAC47-FCC5-0B07-65DB7E8DCF509FCC http://www.progressivereform.org/CPRBlog.cfm?idBlog=67FFAC47-FCC5-0B07-65DB7E8DCF509FCC It's that time of year again. No, I don't mean time for back-to-school sales, last-ditch beach getaways, or Shark Week re-runs. Instead, I'm referring to the time of year when we're once again reminded just how sick our waterways are. Every year around this time, we read about massive dead zones and toxic algal blooms infecting large swaths of our nation's inland and coastal waters. The combination of warming water temperatures and fertilizer runoff during the growing season leads to vast areas of lifelessness for many waterways and aquatic ecosystems. Wed, 16 Aug 2017 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=070B9B70-D10C-5C5B-586B2B8900392F28 http://www.progressivereform.org/CPRBlog.cfm?idBlog=070B9B70-D10C-5C5B-586B2B8900392F28 Rolling back EPA regulations is one of the Trump administration's priorities. The most notable example is Obama's Clean Power Plan, which aimed to cut CO2 emissions from power plants. The other rule that has gotten considerable attention is the so-called WOTUS rule, which defines federal jurisdiction to regulate wetlands and watersheds. But these are not the only rules in the crosshairs. Fri, 11 Aug 2017 11:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2FC448B9-9E80-FA9A-C1F46144ACC82097 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2FC448B9-9E80-FA9A-C1F46144ACC82097 Did you read the fine print when you signed up for your credit card, a loan on your car, or a new checking account? Chances are, you missed an important provision called a "forced arbitration clause." This provision says that if the bank or credit card company has made a mistake it refuses to correct, or even cheated you out of money, you cannot sue to attempt to get your money back. Instead, you must pursue your claim in a secretive, privately run forum called "arbitration." In contrast to the courts, the arbitration process is full of pitfalls that discourage people from bringing claims, has rules that disadvantage consumers, and, for the few consumers who prevail, provides inadequate compensation. And that's exactly why banks and lenders force you to use it. It's also why last month, the Consumer Financial Protection Bureau (CFPB) took an important step to crack down on the abusive use of forced arbitration, issuing a rule banning some of these clauses - those blocking consumers from joining class action lawsuits with thousands of other victims of the same illegal banking practices. This victory for consumers might be short-lived, however, because the House of Representatives has already begun the process of repealing the rule by passing a resolution using a controversial law known as the Congressional Review Act (CRA). Mon, 07 Aug 2017 11:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=622E32B0-E23F-0D91-A5CAE0DA486FF25F http://www.progressivereform.org/CPRBlog.cfm?idBlog=622E32B0-E23F-0D91-A5CAE0DA486FF25F In spite of its documented success in conserving vulnerable species and ecosystems, as well as robust and enduring support among American voters, the federal Endangered Species Act has not been spared from calls to devolve funding and authority from the federal government. As this trend has gained increasing support within the 115th Congress and the Trump administration, Sen. John Barrasso (R-WY), Chairman of the Senate Environment and Public Works Committee, is widely expected to introduce legislation that seeks to erode federal support for species conservation. Under the banner of "modernization" and through the mechanisms of devolution, the bill is anticipated to transfer responsibility for the protection and recovery of imperiled species to the states. But as a new report shows, states are not ready to take on this crucial responsibility. Fri, 04 Aug 2017 13:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CDB938DC-D03C-23BD-869F084F248E9B68 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CDB938DC-D03C-23BD-869F084F248E9B68 On July 20, 2017, the Trump administration announced that it was going to kill hundreds of rules considered by previous administrations to protect public health, worker and consumer safety, the environment, and working people navigating the financial services marketplace. The Trump Spring 2017 "regulatory agenda" was lengthy and complicated. To understand its full implications, you needed to compare it to the last regulatory agenda issued by the Obama administration in the fall of 2016. No one could achieve that detailed analysis within the news cycle spanning the president's announcement, although Matthew Shudtz, CPR's executive director, said accurately that "we are watching the American safety net unravel before our eyes." We have now completed a comparison of the Obama and Trump agendas, as reflected in two new charts. Wed, 02 Aug 2017 10:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=34BA5BEF-08A3-49CC-B330927AE78B7A1A http://www.progressivereform.org/CPRBlog.cfm?idBlog=34BA5BEF-08A3-49CC-B330927AE78B7A1A August is the time for back-to-school shopping, leading parents everywhere on the search for the best deals to fill our kids' backpacks. When that search ends at bargain outlets and dollar stores, though, there is a hidden cost many may not be aware of: the health burden from toxic chemicals in cheap consumer goods. Our chemical safety laws do not do enough to protect our children and families, so public health advocates like the Campaign for Healthier Solutions are putting pressure directly on the retailers to ensure the products on their shelves are safe for their customers. Looking at the recently released regulatory agenda for EPA's Office of Chemical Safety and Pollution Prevention (OCSPP), it is clear that any progress toward protecting people from the hazards of toxic chemicals that surround us will have to come from similar grassroots campaigns as long as President Trump keeps stacking EPA with appointees with deep ties to the chemical industry. Tue, 01 Aug 2017 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3B0EAF13-A126-1146-6D292A5F97A8F288 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3B0EAF13-A126-1146-6D292A5F97A8F288 In drafting the 1973 Endangered Species Act (ESA), Congress gave explicit attention and priority, and therefore funding, to individual species. Rather than approaching species conservation through a more holistic consideration of a species' importance within its ecological community, giving broader attention to biodiversity, or looking to the ability of a species to provide ecosystem services, this decision has had the effect of a creating a gap between politics and ecology. Critics of the ESA who argue the law does not go far enough have long advocated for these more comprehensive approaches. Mon, 31 Jul 2017 15:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6350007D-C3A0-7AA2-33216330EC91DE36 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6350007D-C3A0-7AA2-33216330EC91DE36 Imagine yourself in a sinking ship. The water is rising quickly. Around you are 20 unique, precious artifacts, among the last of their kind to exist on Earth. You only have the capacity to rescue 10 pounds of these objects - if you try to take on more weight, you'll all go down. The problem is, one object alone weighs 10 pounds, while the other 19 amount to a total of 10 pounds. Do you save the big, beautiful, and majestic 10-pounder? Or do you scoop up the other 19, leaving the single large item to fall into the abyss, never to be seen again? Mon, 31 Jul 2017 10:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=61CF36EA-9863-9866-D5FE630FBD98687D http://www.progressivereform.org/CPRBlog.cfm?idBlog=61CF36EA-9863-9866-D5FE630FBD98687D Late last week, we shared our first take on how the Trump administration's 2017 deregulatory agenda threatens to knock the wheels off of agency efforts to protect workers, consumers, and vulnerable populations - like children and homeless families - from air pollution, flooding, and explosions in the workplace, among other hazards. After some additional research, we have also found that the administration's agenda takes aim at safeguards for victims of disasters, such as communities that face the threat of displacement or relocation caused by climate change, and at programs that enhance community resilience in the rural areas that President Trump counts among his base of support. Thu, 27 Jul 2017 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=068F63C5-A40B-EA24-407B0681D6CE0570 http://www.progressivereform.org/CPRBlog.cfm?idBlog=068F63C5-A40B-EA24-407B0681D6CE0570 President Trump's first Unified Agenda of Regulatory and Deregulatory Actions, released last week, aims to cut regulations across the board, but the broad swath of energy programs and regulations under the ax is particularly notable. The U.S. energy sector, finally catching up with the rest of the world, has modernized by leaps and bounds in recent years with the help of limited but targeted governmental support. But Trump's agenda would bring this all to an abrupt halt and send us skidding back into the dark ages of energy. Wed, 26 Jul 2017 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D127EA21-DD5B-87DA-7B5979B8C777F7AB http://www.progressivereform.org/CPRBlog.cfm?idBlog=D127EA21-DD5B-87DA-7B5979B8C777F7AB The newest dangerous proposal filtering through Congress is H.R. 2887, the "No Regulation Without Representation Act of 2017." Packaged as a prohibition on states regulating outside of their borders, the bill is a Trojan horse that usurps the states' role in the federal system and threatens their ability to protect their own citizens from harm. The House Committee on the Judiciary's Subcommittee on Regulatory Reform, Commercial and Antitrust Law is taking up the bill in a hearing today, July 25, and Center for Progressive Reform Member Scholars have submitted a letter opposing the bill. Tue, 25 Jul 2017 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A01195C5-E948-6B6A-6BFF47B22997C712 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A01195C5-E948-6B6A-6BFF47B22997C712 When President Trump released his spring Unified Agenda last week, he made it abundantly clear that he has no interest in protecting workers from occupational injuries and diseases. Mon, 24 Jul 2017 14:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8E682D57-0121-E36B-8AA26B715CE2AB23 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8E682D57-0121-E36B-8AA26B715CE2AB23 On Monday, July 17, the Occupational Safety and Health Administration (OSHA) convened a public meeting to hear input from stakeholders about how the agency might grow and strengthen its Voluntary Protection Programs (VPP). Given the change in administration, the announcement was no surprise. Growing the VPP had also been a priority of the George W. Bush administration, during which time OSHA made plans to add thousands of new participants despite having no evidence the program improved worker health and safety. Resource constraints ultimately tempered OSHA's expansion plans, but not before the agency had damaged the VPP and eroded its integrity. With this history in mind, I attended a recent stakeholder meeting to urge the agency to learn from the past and reevaluate the VPP's performance and cost-effectiveness before it moves to expand it. Fri, 21 Jul 2017 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CDA0E23E-EB5C-0DAB-F9F9A8EF9B4865A6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CDA0E23E-EB5C-0DAB-F9F9A8EF9B4865A6 Early Thursday morning, the Trump administration released its Spring 2017 Regulatory Agenda, which outlines the regulatory and deregulatory actions the administration expects to take over the next 12 months. Because it is the first of the Trump administration, this document is particularly significant. By comparing it with the last Regulatory Agenda of the Obama administration, which was released in fall of 2016, we are able to see what pending regulatory actions the Trump administration has abandoned or delayed. Only a preliminary review is necessary to confirm the harm the outlined policies would do to the nation's hard-working families and communities and how they would exacerbate social inequality throughout our country. Thu, 20 Jul 2017 17:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CB430BFB-F0BA-9DFF-A2FD989CDE12BD01 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CB430BFB-F0BA-9DFF-A2FD989CDE12BD01 Early in the Trump administration, news about delayed and "disappeared" rules emerged in several media outlets. Many of these delays were driven by a memo issued by Trump White House Chief of Staff Reince Priebus on January 20, 2017, which "froze" the implementation of rules until March 21, 2017, so that a representative of the administration could review them. Freezing rules for a limited amount of time is standard practice for newly inaugurated presidents. But the White House and agency administrators like the Environmental Protection Agency's (EPA) Scott Pruitt soon decided to move beyond the Priebus memo to impose further delays, some as long as a year or two, so that industry-friendly changes could be crafted without having to undergo the full rigor of a rulemaking process. Many of the targeted Obama-era rules were designed to protect public health, worker and consumer safety, and the environment. Wed, 19 Jul 2017 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5E9BD29E-BB56-0EE5-E28F45390F3A063B http://www.progressivereform.org/CPRBlog.cfm?idBlog=5E9BD29E-BB56-0EE5-E28F45390F3A063B June 22 marked the one-year anniversary of the Frank R. Lautenberg Chemical Safety for the 21st Century Act, the first major update to the Toxic Substances Control Act (TSCA) since its original enactment in 1976. The measure set a one-year deadline for EPA to complete several actions to implement the law, including finalizing its procedural rules on chemical prioritization and risk evaluation and releasing key documents related to the initial ten chemicals the agency has chosen to evaluate. One of those initial ten chemicals is asbestos, as it should be, since EPA determined some 28 years ago that there's no safe level of exposure. In fact, based on this evidence, EPA attempted to phase out nearly all uses of asbestos in the United States, but the Fifth Circuit Court of Appeals overturned the ban in 1991. Mon, 17 Jul 2017 10:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=36D376C6-0F84-6D8D-A163BDEFE40995E7 http://www.progressivereform.org/CPRBlog.cfm?idBlog=36D376C6-0F84-6D8D-A163BDEFE40995E7 Earlier this week, the Consumer Financial Protection Bureau (CFPB) took decisive action to protect hardworking people who are cheated by banks or other financial institutions. Specifically, the federal agency issued a rule limiting what are known as "forced arbitration" agreements in the contracts we must all sign when we open a bank account or purchase certain kinds of financial products and services. Last year, scholars and staff at the Center for Progressive Reform authored a report that supported CFPB's efforts and asked the agency to adopt an even stronger set of protections for consumers. Although the agency did not adopt the stronger provisions, the final rule nevertheless offers crucial protections for American consumers. We are therefore concerned about the rule's ultimate fate in the courts and in Congress. Thu, 13 Jul 2017 15:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=64919787-E053-F953-57E9D5CEB550BD0B http://www.progressivereform.org/CPRBlog.cfm?idBlog=64919787-E053-F953-57E9D5CEB550BD0B One question I've been asked a number of times over the last several years is, "What does the Clean Water Rule mean for the Chesapeake Bay?" With EPA's recent proposal to repeal the rule, I'm once again hearing questions and speculation about what this repeal will mean for the Bay watershed. Thu, 13 Jul 2017 10:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=58D4BC99-0CED-2C12-0FC8038D84FA0310 http://www.progressivereform.org/CPRBlog.cfm?idBlog=58D4BC99-0CED-2C12-0FC8038D84FA0310 Imagine that a hostile foreign power covertly manipulated our democracy and government to impose on Florida and other coastal states heightened risks of catastrophic sea level rise and an intensification of hurricanes, floods, droughts, and diseases carried by insects and parasites. Suppose, too, that the same foreign government then set about to demolish the work of American institutions that prevent serious diseases and avoidable deaths to our people. Without doubt, we would regard those acts as threats to our national security. That's just how we should regard Donald Trump's proposal for a 31-percent cut to the Environmental Protection Agency (EPA) budget. Tue, 11 Jul 2017 11:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F3EC7B50-04D9-FA12-ED353DFF4EC178A3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F3EC7B50-04D9-FA12-ED353DFF4EC178A3 Late last Thursday, the Small Business Administration's (SBA) Office of Advocacy announced that it was soliciting proposals for "small business research" projects. The solicitation - and particularly the category of topics that the SBA Office of Advocacy has selected for potential research projects - offers one of the first clues on how this obscure but powerful office is likely to operate under the Trump administration. Thu, 06 Jul 2017 14:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F52E213D-D2F4-90F8-BEEEF04B6067BA2D http://www.progressivereform.org/CPRBlog.cfm?idBlog=F52E213D-D2F4-90F8-BEEEF04B6067BA2D No one is safe from the effects of climate change. That's the key takeaway from a March report by nearly a dozen highly respected medical organizations that studied the link between climate change and risks to our health. And these aren't far-off impacts or theoretical dangers: human-driven climate change is already making people sick. One way to drive change in the private market and to mitigate such detrimental effects of climate change would be to implement a revenue-neutral carbon fee. Thu, 06 Jul 2017 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=95265CA4-BF17-6D55-255ACF9226FC8C9F http://www.progressivereform.org/CPRBlog.cfm?idBlog=95265CA4-BF17-6D55-255ACF9226FC8C9F How should a court assessing a regulatory takings claim define the "property" allegedly taken to assess the degree of the economic impact the regulation has on it? That question has plagued the Supreme Court for nearly a century, with different and conflicting answers emerging, sometimes in relatively rapid succession. In Murr v. Wisconsin, the Court has provided its most comprehensive answer to the so-called "denominator" question so far, although even the analytical framework the Court provides leaves ample room for refinement in future cases. Wed, 05 Jul 2017 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=963E3F9D-C62C-577D-D3D74D46F0EA34B9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=963E3F9D-C62C-577D-D3D74D46F0EA34B9 Conservatives spent the last eight years reducing their knee-jerk opposition to anything that bore Obama's name to a bumper-sticker rallying cry, and now they feel the need to pass something they can label "repeal and replace." So we get this truly atrocious Obamacare "repeal" bill. It's about politics, not policy, pure and simple. Thu, 29 Jun 2017 14:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6F4F56C1-CBE9-DB6D-D1567D2DC034D6ED http://www.progressivereform.org/CPRBlog.cfm?idBlog=6F4F56C1-CBE9-DB6D-D1567D2DC034D6ED Earlier this week, Axios and Greenwire reported that international oil behemoth BP is bringing on a new lobbyist to work on "[r]egulatory reform advocacy related to Federal energy and environmental rules," as described in the required lobbying disclosure statement. That in itself is hardly news. What makes this story remarkable is who the lobbyist is, or in this case, was. Nathan Frey, who appears to be the only partner with the lobbying firm Regulatory Strategies and Solutions Group, used to be on the staff at the White House Office of Information and Regulatory Affairs (OIRA). Thu, 29 Jun 2017 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=65580A2B-CA98-8DB9-D3B786B5B1282C02 http://www.progressivereform.org/CPRBlog.cfm?idBlog=65580A2B-CA98-8DB9-D3B786B5B1282C02 EPA and the Army Corps of Engineers just released a proposal to repeal the Clean Water Rule and to return to previous regulations. The Clean Water Rule (also known as the WOTUS Rule) would have clarified the scope of federal regulatory jurisdiction under the Clean Water Act. It was one of the Obama administration's signature environmental initiatives, and it was one of candidate and then President Trump's signature targets. So the emergence of this proposal is no surprise. Nevertheless, the contents of the new document are surprising in several ways. Wed, 28 Jun 2017 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=332210B2-BE9E-ECDD-75F52FC3B90AA521 http://www.progressivereform.org/CPRBlog.cfm?idBlog=332210B2-BE9E-ECDD-75F52FC3B90AA521 All month long, the Maryland Clean Agriculture Coalition (MCAC) has been highlighting the Chesapeake Bay cleanup plan, also known as the Bay TMDL (Total Maximum Daily Load) in order to keep track of the progress that is, or isn't, happening within the Bay watershed to reduce pollution. The organization recently chatted with Evan Isaacson, policy analyst at the Center for Progressive Reform, about tracking the progress of the Bay TMDL, what more states should be doing, and how citizens can get involved in the fight for clean water. Tue, 27 Jun 2017 14:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2A8CCA0B-AD30-DD26-8870FB898BDD7DAA http://www.progressivereform.org/CPRBlog.cfm?idBlog=2A8CCA0B-AD30-DD26-8870FB898BDD7DAA Last fall, the Senate directed the Environmental Protection Agency (EPA) to contract with the National Academy of Public Administration (NAPA) to conduct an independent study on affordability of municipal investments in water infrastructure. As someone who spent several years within the halls of the Maxwell School of Citizenship and Public Affairs at Syracuse University, I was honored to contribute to NAPA's research efforts by responding to a survey with suggestions for public administrators and communities struggling to meet the challenges caused by massive underinvestment in water infrastructure and the growing threats that poses to public health and water quality. Thu, 22 Jun 2017 13:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=26659659-B0E6-E753-A49060E471CED5AF http://www.progressivereform.org/CPRBlog.cfm?idBlog=26659659-B0E6-E753-A49060E471CED5AF Today, Neomi Rao is likely to take one step closer to becoming the Administrator of the Office of Information and Regulatory Affairs (OIRA) - that is, the Trump administration's "regulatory czar" - with the Senate Homeland Security and Governmental Affairs Committee expected to favorably report her nomination to the Senate floor for a final confirmation vote. In a new report, CPR Member Scholar Joseph Tomain examines the fundamental legal weaknesses of two anti-regulatory executive orders that President Trump has issued. Rao, as OIRA Administrator, would have the primary responsibility for implementing these orders. Wed, 21 Jun 2017 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C42D55F1-E316-9425-91103DE74B554CF1 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C42D55F1-E316-9425-91103DE74B554CF1 Four recent op-eds by CPR Member Scholars underscore the scope and danger of the current assault on our safeguards now being mounted by the president and the congressional leadership. Highlights of the most recent pieces follow. Mon, 19 Jun 2017 09:00:32 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=ED7355AC-01E6-3A82-0E2AB43B63306394 http://www.progressivereform.org/CPRBlog.cfm?idBlog=ED7355AC-01E6-3A82-0E2AB43B63306394 After decades of failed efforts to enact "regulatory reform" bills, Congress appears to be within a few votes of approving legislation that would strip Americans of important legal protections, induce regulatory sclerosis and subject agencies that enforce the nation's laws and regulations to potentially endless litigation. Thu, 15 Jun 2017 14:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B7977B23-A173-EE62-A5FDD985F39D0086 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B7977B23-A173-EE62-A5FDD985F39D0086 I don't know what executive order the Chamber of Commerce is defending in the amicus brief it filed Monday in Public Citizen v. Trump. But it doesn't appear to be the one at issue in that lawsuit. The lawsuit charges that Trump's "one-in, two-out" executive order is unconstitutional. That's the order he issued in January requiring agencies to repeal two regulations for every one they issue. It requires agencies to make sure that the costs imposed by any new regulation are entirely offset by the costs of the two repealed regulations. And, yes, it's just as absurd as it appears at first glance - akin to a business deciding to close two old stores for every new one it opens in order to offset the costs of the new store, entirely ignoring the revenue side of the ledger. Thu, 15 Jun 2017 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=994ADCA7-0980-22F9-0FC3AAB1FC0D6230 http://www.progressivereform.org/CPRBlog.cfm?idBlog=994ADCA7-0980-22F9-0FC3AAB1FC0D6230 On Thursday, Environmental Protection Agency (EPA) Administrator Scott Pruitt will appear before a House Appropriations subcommittee to explain how he plans to square the Trump administration's proposed 31-percent cut to EPA's budget with its statutory obligations to protect the environment. Spoiler alert: There's no plan. The proposition - implementing and enforcing safeguards related to water, air, and hazardous materials while cutting a quarter of the agency's workforce - is preposterous. Wed, 14 Jun 2017 14:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8B791F46-FC47-37F1-88E881FC244D102E http://www.progressivereform.org/CPRBlog.cfm?idBlog=8B791F46-FC47-37F1-88E881FC244D102E With a massive, proposed 31 percent cut to his agency looming in the background, EPA Administrator Scott Pruitt is preparing to visit Capitol Hill for an appearance before a House Appropriations subcommittee on Thursday. Lawmakers, their staff, and others are likely and understandably focused on the Paris climate agreement withdrawal, the Trump administration's proposal to end federal financial support for programs that help protect and restore a variety of Great Waters like the Chesapeake Bay and the Great Lakes, and damaging staff cuts that would cripple the agency's ability to protect our health and our environment. But we should be looking beyond the big-ticket items to fully assess the damage that Pruitt and President Trump are proposing to do. Wed, 14 Jun 2017 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6153C7EC-C63A-1C12-0E85C52FB3E7B36F http://www.progressivereform.org/CPRBlog.cfm?idBlog=6153C7EC-C63A-1C12-0E85C52FB3E7B36F To call the timing coincidental doesn't give House Republicans enough credit. On Wednesday, while the fallout from Attorney General Jeff Sessions' testimony about his connections to Russia dominates most Capitol Hill news coverage, the House will vote on H.R. 1215, a bill designed to strip injured patients of their day in court. Last week, the same legislators voted to undermine the Consumer Financial Protection Bureau under the cover of James Comey's testimony about President Trump's ham-fisted attempts to interfere in the FBI's Russia investigations. Tue, 13 Jun 2017 14:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5847F4AE-CC85-8735-8F4CB512E47319E0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5847F4AE-CC85-8735-8F4CB512E47319E0 Susan Bodine, an attorney with significant experience on Capitol Hill and at the U.S. Environmental Protection Agency (EPA), is President Trump's nominee to lead the Office of Enforcement and Compliance Assurance (OECA) at the agency. She is likely to get a friendly audience on Tuesday when she appears before the Senate Environment and Public Works Committee to answer questions about the future of OECA. After all, she's worked closely with everyone on the panel, and there remain some aspects of federal policymaking that still proceed in a ceremonious fashion, even in Trump's America. Mon, 12 Jun 2017 03:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=278683E1-FDFF-B2AE-455578FA044B4C02 http://www.progressivereform.org/CPRBlog.cfm?idBlog=278683E1-FDFF-B2AE-455578FA044B4C02 Miners carried canaries into coal mines; if the canary died, it was an early warning of the presence of toxic gases that could also asphyxiate humans or explode. The Trump administration has decided to use children and farmworkers as 21st century canaries, continuing their exposure to a pesticide named chlorpyrifos that has been linked to serious health concerns. Thu, 08 Jun 2017 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=29A79D75-F897-7B8E-DB1F8EC18C014757 http://www.progressivereform.org/CPRBlog.cfm?idBlog=29A79D75-F897-7B8E-DB1F8EC18C014757 President Trump's historic retreat from the Paris climate accord last week is just the latest installment in the story of how his administration's anti-science and anti-protections policies with respect to climate change could do grave harm to many aspects of American life. His proposed budget is likely to be the next chapter. Wed, 07 Jun 2017 09:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C43A201E-CED0-7BB6-E20AD4A8406AE754 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C43A201E-CED0-7BB6-E20AD4A8406AE754 On Wednesday, the Senate Committee on Homeland Security and Governmental Affairs will examine and likely vote on President's Trump's selection for Administrator of the Office of Information and Regulatory Affairs (OIRA). OIRA is the most important government office most Americans have never heard of. It is the depot through which all regulatory freight must pass, the place where ideas go to be sorted, weighed, green-lighted, or buried. It's the ganglia of the president's bureaucratic brain. At the center of those fluttering gray cells, if Trump gets his way, will be Neomi Rao. Tue, 06 Jun 2017 14:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F0FA7ABA-F8A9-F886-3A80D44E3B8AE8AC http://www.progressivereform.org/CPRBlog.cfm?idBlog=F0FA7ABA-F8A9-F886-3A80D44E3B8AE8AC Over the last several years, conservative opponents of regulatory safeguards for health, safety, the environment, consumers, and the economy have gradually coalesced around a grand theory for why the supposed balance of policymaking powers between the executive and legislative branches has become so, well, unbalanced. Thu, 01 Jun 2017 09:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B3F49AEC-DB4B-CB58-4F942A934188C5B6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B3F49AEC-DB4B-CB58-4F942A934188C5B6 When George W. Bush announced in 2001 that the United States would not ratify the Kyoto Protocol, it led to a lost decade of U.S. action on climate change. Now, President Trump's decision will lead to a lost century on climate change, where the U.S. will give away the store to the Europeans and the Chinese, who are eager to lead the clean energy revolution. Thu, 01 Jun 2017 04:09:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B5A925BA-A265-7F95-81547F334D67F760 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B5A925BA-A265-7F95-81547F334D67F760 A sign of the times: Fox News has reported, without comment, that the Kentucky Coal Museum is installing solar panels to save money. This is part of a larger trend. Tue, 30 May 2017 12:37:33 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8407C0CC-0EF9-B68D-F247304A73D30358 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8407C0CC-0EF9-B68D-F247304A73D30358 While OSHA would suffer less drastic cuts than some other agencies, the targeted precision of these cuts - focused squarely on programs with such direct positive effects for workers - disproves Trump's claim to be a president for the working class. Fri, 26 May 2017 10:40:52 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B1DB68F0-C494-498D-D5D8D157E2AFDAF6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B1DB68F0-C494-498D-D5D8D157E2AFDAF6 Yesterday, ten distinguished law professors filed an amicus brief in support of a lawsuit challenging as illegal and unconstitutional the Trump administration's "two-for-one" executive order. Thu, 25 May 2017 10:33:27 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7E10A2A3-B960-3572-B1CDB175DFCE216C http://www.progressivereform.org/CPRBlog.cfm?idBlog=7E10A2A3-B960-3572-B1CDB175DFCE216C President Trump ordered EPA and the Army Corps to review the Obama Administration's Waters of the United States (WOTUS) rule, which sets expansive bounds on federal jurisdiction over water bodies and wetlands. In my view, either the agencies will have to dive deep into the scientific thicket in the hope of justifying a new rule, or they will have to gamble that Trump will get another Supreme Court appointment before their action gets to the Court. Wed, 24 May 2017 14:54:57 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=53F80604-AD45-D54C-7C2465E2465636F5 http://www.progressivereform.org/CPRBlog.cfm?idBlog=53F80604-AD45-D54C-7C2465E2465636F5 From the safety of Air Force One en route from Tel Aviv to Rome, President Trump dropped his FY 2018 budget on Washington, DC and sent OMB Director Mick Mulvaney to run point on the ground. They like to talk about it as a "hard power" budget. What they don't like to talk about are the consequences of unleashing such firepower on the American public. Tue, 23 May 2017 14:30:10 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2033ED2D-0A07-EA10-F603FC64A0652CD7 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2033ED2D-0A07-EA10-F603FC64A0652CD7 Professor Kent Barnett recently opined in The Regulatory Review that formal rulemaking really is not that bad and may actually be a good thing in certain circumstances. His argument deserves closer review because the proposed Regulatory Accountability Act (RAA) would require the equivalent of formal rulemaking - or what the bill calls a "public hearing." Barnett may well be right to suggest that in some situations the costs of formal rulemaking could be justified, but he could not be more wrong to argue that the circumstances that would trigger formal rulemaking under the RAA are among those situations. Mon, 22 May 2017 10:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4E47797F-F214-46FF-48E02C49DB0589CF http://www.progressivereform.org/CPRBlog.cfm?idBlog=4E47797F-F214-46FF-48E02C49DB0589CF The New York Times reports Jared Kushner "has pushed to overhaul the criminal justice system, ... [b]ut Mr. Kushner is running into opposition from Attorney General Jeff Sessions, who favors toughening, not relaxing, mandatory minimum sentences." Like so many other issues undermining the Trump presidency, different factions are at war within the White House, making any predictions about the future of white-collar enforcement seem premature. Thu, 27 Apr 2017 12:43:46 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E0D04868-E0AA-9350-4856898FF7F69EC5 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E0D04868-E0AA-9350-4856898FF7F69EC5 Every worker has a right to a safe job. Yet on an average day of the week, 13 U.S. workers die on the job due to unsafe working conditions. An additional 137 lives are lost daily due to occupational diseases - mesothelioma, lung cancer, asbestosis, among others. On Friday - Workers' Memorial Day - we will stand with the families, friends, and colleagues of fallen workers to remember each of them as individuals whose lives represent much more than a statistic. We will also renew our vow to fight for workers' rights so that every single person who leaves home for a job in the morning returns at the end of the day with all their limbs accounted for and with their health intact. Wed, 26 Apr 2017 09:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B27DD561-937D-23B1-369EB743786C817C http://www.progressivereform.org/CPRBlog.cfm?idBlog=B27DD561-937D-23B1-369EB743786C817C If Donald Trump has learned anything over the last 100 days, it's that unlike in golf, you can't call a Mulligan on the beginning of your presidency, no matter how much it might improve your score. These last few months have been long on scandals and failure (Russian probes, the spectacular implosion of Trumpcare, etc.) and short on policy accomplishments, particularly in the legislative realm. This sad state of affairs has left Trump's PR team looking to inject some positive spin into the 100-days news narrative any way it can, and the Congressional Review Act (CRA) seems to be their go-to vehicle for doing just that. CPR has launched a new project - CRA by the Numbers: The Congressional Review Act Assault on Our Safeguards - that pulls together key statistics and quantitative analysis that help to reveal what is really at stake - namely, the reckless destruction of critical protective regulations that individually and collectively would have made us healthier, safer, and more financially secure had they remained in place. Tue, 25 Apr 2017 03:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7E04E7BB-DCD2-2A2F-8819F0102C12D872 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7E04E7BB-DCD2-2A2F-8819F0102C12D872 As the clock ticked closer to the end of the work day a few Fridays back, the Trump administration quietly made an announcement certain to put smiles on the faces of many corporate interest lobbyists in and around the DC Beltway: Neomi Rao, a little known but very conservative law professor at George Mason University's Scalia Law School, would be the nominee for Administrator of the White House Office of Information and Regulatory Affairs (OIRA). The announcement probably went unnoticed by most of the working class families and low-income communities that Trump calls his base, but it may just have a huge impact on their health and well-being. Thu, 20 Apr 2017 09:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4AE4680E-ED4D-AB43-970EAADB83ADA2BC http://www.progressivereform.org/CPRBlog.cfm?idBlog=4AE4680E-ED4D-AB43-970EAADB83ADA2BC The City of Baltimore is wrapping up an $800 million upgrade of its largest sewage treatment plant. At the same time, the city is starting a $160 million project to retrofit a drinking water reservoir; is in the midst of a $400 million project to realign a major section of its sewer system; and is spending several million on projects throughout the city to manage polluted runoff from its streets and other paved surfaces. Managing our need for water is both expensive and complicated, and the challenges of worsening drought and flooding that climate change is forecasted to create for American cities in coming decades have propelled the emergence of "integrated water management" - the coordinated management of societal water needs in an equitable and sustainable way. These issues are the focus of a bipartisan bill introduced in the U.S. Senate last month that would directly address some of the challenges faced by cities like Baltimore. Thu, 13 Apr 2017 12:33:59 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0F32351A-CBF5-CE80-1F81BBB61A307B50 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0F32351A-CBF5-CE80-1F81BBB61A307B50 Steve Bannon's crusade to deconstruct the administrative state took two big steps forward last week, concluding with Donald Trump nominating George Mason University Law School professor Neomi Rao as his "regulatory czar." CPR will publish a new report on the role of the Office of Information and Regulatory Affairs (OIRA) Administrator during the Trump administration in the days to come, but for now, I want to focus on the first big development: Acting Administrator Dominic Mancini's new memo providing agencies with guidance on how to comply with Trump's Executive Order 13771. Wed, 12 Apr 2017 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B4331117-AF2B-F035-61F65A9C6558025C http://www.progressivereform.org/CPRBlog.cfm?idBlog=B4331117-AF2B-F035-61F65A9C6558025C Last month, President Trump released his proposed budget for fiscal year 2018, which calls for sharp cuts to many agencies in order to fund increases in defense and military spending. Hardest hit is the Environmental Protection Agency. Already underfunded, EPA will simply not be able to carry out its statutory mandates to keep our environment clean and healthy if subjected to Trump's proposed cut of 31 percent. Rather, the Trump administration asserts that the agency would "primarily support States and Tribes in their important role protecting air, land, and water in the 21st Century." It's hard to imagine how EPA could do that, however, as the budget also slashes federal funding of state environmental programs by almost half. Tue, 11 Apr 2017 11:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7E9CB197-F41E-F077-0B3A6C156232265C http://www.progressivereform.org/CPRBlog.cfm?idBlog=7E9CB197-F41E-F077-0B3A6C156232265C Thank goodness for state-level policymakers who are resisting the Trump administration's extreme policies. Leaders in the Maryland General Assembly, for example, looked at President Trump's budget proposals and knew they had to act. Despite structural impediments that come from a state budget process where the legislature cannot appropriate more overall funds than the governor proposes in his budget, the General Assembly responded to Trump's proposal to drastically reduce federal funding to enforce the Clean Water Act. And that's not all. Maryland legislators took proactive steps to get out ahead of Trump's proposed cuts to the Occupational Safety and Health Administration (OSHA), which could restrict money that passes through to state agencies like Maryland's Department of Labor, Licensing and Regulation for enforcement. Mon, 10 Apr 2017 12:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=73356C10-960B-3BF8-74F9596E96989FD8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=73356C10-960B-3BF8-74F9596E96989FD8 It was Ronald Reagan who popularized attacks on regulations when he was on the campaign trail in 1980, and since then, the tactic has been an inescapable feature of our political landscape. The false claims about environmental regulations, job creation, and the economy have been repeated so frequently and for so long that many Americans don't even question them. Yet no matter how many times a fallacy like this is repeated, it remains untrue. Fri, 07 Apr 2017 12:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DA478CB0-D81C-40A5-C0AC021E8BB0A6FC http://www.progressivereform.org/CPRBlog.cfm?idBlog=DA478CB0-D81C-40A5-C0AC021E8BB0A6FC The civil justice system in North Carolina exists to protect people and their property from unreasonable actions by others. One of the longest standing causes of action in civil courts is for nuisance claims, which allow you to bring suit when your neighbor creates a condition on their property that interferes with your ability to use and enjoy your property, such as excessive noise, poorly stored garbage that might attract vermin or foul odors. Yet, House Bill 467, which is being fast-tracked through the legislature, would prevent hundreds of rural landowners from recovering more than token damages even if a court were to decide that the corporations responsible for factory farming have committed just such a nuisance. Wed, 05 Apr 2017 12:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=724D4871-E65B-126C-3A3C6F0C603E1700 http://www.progressivereform.org/CPRBlog.cfm?idBlog=724D4871-E65B-126C-3A3C6F0C603E1700 The media coverage of the GOP's race to repeal important safeguards has been fairly slight, with the press distracted on the substantive side by the president's executive order signing ceremonies and by the train wreck of an effort to repeal the Affordable Care Act, and on the flashy news side by the various scandals and Keystone Cops displays emanating from the White House. But the rules being targeted under the Congressional Review Act are consequential, and they tell us whose interests the congressional majority and the president are working to protect. Tue, 04 Apr 2017 14:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1398AB32-F7B8-F456-5E65BE830FC16F04 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1398AB32-F7B8-F456-5E65BE830FC16F04 CPR Member Scholars published another bumper crop of op-eds this past month. We maintain a running list on our op-eds page, but to save CPRBlog readers a click or two, we've compiled a quick rundown. Mon, 03 Apr 2017 15:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=11D291D5-978D-7ADA-704DE911ECCF5B6E http://www.progressivereform.org/CPRBlog.cfm?idBlog=11D291D5-978D-7ADA-704DE911ECCF5B6E President Trump's new "energy" executive order is an attempt to roll back Obama regulations on climate change, and even make considerations of climate change disappear from much of the policymaking process altogether. That's quite a lot to accomplish by executive order, and despite all the media attention he got for it, the president is eventually going to discover that he can't eradicate climate realities from federal consideration with the stroke of a pen. Mon, 03 Apr 2017 11:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0AB4A5C5-C9BB-5202-650488F7F45696DD http://www.progressivereform.org/CPRBlog.cfm?idBlog=0AB4A5C5-C9BB-5202-650488F7F45696DD Donald Trump's anti-climate action executive order is, as CPR President Rob Verchick puts it, a classic act of bullying. As I describe in an annotated version of the order, it is also irrational, failing to achieve the very aims it purports to support while inflicting damage to our climate, environment, natural resources, wildlife, and yes - even our coal miners. Wed, 29 Mar 2017 16:10:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=12D5E3D7-94A8-12A7-896CF5B4C2D39F3F http://www.progressivereform.org/CPRBlog.cfm?idBlog=12D5E3D7-94A8-12A7-896CF5B4C2D39F3F Donald Trump has been in office only 68 days, and already I've passed the threshold from shock to boredom. His order to erase climate change from federal policy, preceded by a speech before captive members of the Environmental Protection Agency (EPA), only seals the deal. I served at the EPA during President Obama's first term, helping that agency and others prepare for the hazards of climate change. That work is serious and complicated and subtle. Trump, of course, is anything but. The man is as formulaic as a Hanna-Barbera cartoon. Tue, 28 Mar 2017 16:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DE4CA36F-F643-87B7-994815E59D57EF04 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DE4CA36F-F643-87B7-994815E59D57EF04 The most drastic cut in President Donald Trump's recently released budget outline is to the Environmental Protection Agency (EPA), the agency tasked by law with setting and enforcing national standards to limit water, air, and land pollution; conducting scientific research to protect our health and the environment; and assisting state and local governments in reducing pollution. A look at the details of the president's budget blueprint reveals the truly radical nature of the proposal. Mon, 27 Mar 2017 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0FF924C0-C8AC-4AC6-871909587F6FF947 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0FF924C0-C8AC-4AC6-871909587F6FF947 Yale economist William Baumol has written extensively on the connection between innovation and economic productivity. He has demonstrated that the United States has long been committed to promoting innovation, and through innovation, virtuous circles of economic growth are created. Unfortunately, the current administration appears committed to curtailing, even stopping, that growth. Tue, 21 Mar 2017 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4A1B1BAB-E58A-E8A9-3D60CDA5A9BFE7B3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4A1B1BAB-E58A-E8A9-3D60CDA5A9BFE7B3 In the early 1970s, Congress passed the Clean Air Act and Clean Water Act on nearly unanimous votes. The overwhelming support for these new laws reflected not only the horrific condition of America's air, water, and landscape at the time, but also an appreciation of the collective action problem states faced, necessitating federal action. The major environmental laws that passed in the following years were predicated on the need to set a federal floor for environmental standards in order to provide all Americans with a basic right to clean air, safe water, and a healthy environment, no matter the state they lived in. Fast forward 40-plus years, and we must now contemplate what happens when the federal government takes a sledgehammer to the regulatory floor. Mon, 20 Mar 2017 09:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A6B0238A-9571-2018-5080E6B5C69A0911 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A6B0238A-9571-2018-5080E6B5C69A0911 Last year around this time, I happily deleted the headline, "A Dark Day for the Bay," which I was preparing to use for a blog post in the event that the U.S. Supreme Court decided to hear the appeal of the American Farm Bureau Federation and other plaintiffs in their challenge to the Chesapeake Bay cleanup effort known as the Bay TMDL. Ultimately, the Court denied that appeal. I once again considered dusting off this ominous headline last fall when Rep. Bob Goodlatte (R-VA) successfully added a provision known as a "rider" to a budget bill, which would have blocked the U.S. Environmental Protection Agency (EPA) from taking any "backstop actions" to ensure the TMDL remained on track. Ultimately, that effort also failed. The Trump White House is now hoping the third time is a charm with the budget proposal released on March 16, which zeroes out funding for the Chesapeake Bay Program. Fri, 17 Mar 2017 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=780E5593-AA4F-7FF0-E806086C21BEDEEA http://www.progressivereform.org/CPRBlog.cfm?idBlog=780E5593-AA4F-7FF0-E806086C21BEDEEA The president's "skinny budget" is a particularly apt description for a proposal that would leave crucial protector agencies too emaciated to safeguard our health, safety, and environment. Whether it's pipeline inspectors to protect our land and water from oil spills, or workplace safety inspectors to ensure our family members return home safely from their jobs, or environmental inspectors to prevent air pollution and toxic chemical disasters, many agencies simply don't have sufficient resources to conduct the level of enforcement needed to safeguard all Americans. Slashing their budgets even further would be the height of irresponsibility, and Congress should reject Trump's proposal and give agencies the resources they need to police corporate special interests that cannot be trusted to police themselves. Thu, 16 Mar 2017 15:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7329FC8C-FFD7-D583-781D014F1C631EBA http://www.progressivereform.org/CPRBlog.cfm?idBlog=7329FC8C-FFD7-D583-781D014F1C631EBA On Monday, the Supreme Court will hear oral argument in Murr v. State of Wisconsin, a case involving a fundamental challenge to public authority to protect our communities and private property. If the Court were to rule in favor of petitioners, it would make it vastly more difficult for communities to compel large-scale developers to comply with zoning and other land use laws. Wed, 15 Mar 2017 12:00:48 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=389F76F6-9909-51B8-320F8DDE0D60A0B0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=389F76F6-9909-51B8-320F8DDE0D60A0B0 Throughout U.S. history, government regulation has generated a wide variety of public benefits including safer workplaces and food, cleaner air and water, traffic safety, and greater protection for civil and political rights. These regulations have saved lives and have protected individual liberty and dignity. Mon, 13 Mar 2017 11:22:16 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D07A5116-9BAD-94CF-3366405B5BD03EFD http://www.progressivereform.org/CPRBlog.cfm?idBlog=D07A5116-9BAD-94CF-3366405B5BD03EFD The Feb. 28 executive order overturning a Clean Water Act rule clarifying EPA's jurisdiction over wetlands furnishes but the latest example of President Trump's propensity to rule by almost daily fiat. Liberals and conservatives usually react to Trump's decrees in predictable ways, decrying the orders they do not agree with and supporting the ones they like. Trump's supporters seem delighted because some of the orders implement campaign promises. But in reacting this way, we may be missing the point. Tue, 07 Mar 2017 08:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7688C611-0928-CB10-5B4157681775EB40 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7688C611-0928-CB10-5B4157681775EB40 Last Tuesday, President Trump signed an executive order directing EPA and the Army Corps of Engineers to begin work on a new rule defining the scope of federal jurisdiction under the Clean Water Act. The rule, if and when it is finalized, would replace the "Clean Water Rule" released by EPA and the Corps during the summer of 2015. Much of the political rhetoric surrounding the Clean Water Rule has suggested that the 2015 rule was responsible for massive economic impacts and that removing it will be a source of economic relief. President Trump's own remarks, for example, were riddled with such complaints. The truth, I've learned, bears little resemblance to President Trump's claims. Mon, 06 Mar 2017 13:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DD010B48-A4C0-DC67-13FC0F22E6E0C020 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DD010B48-A4C0-DC67-13FC0F22E6E0C020 Unless you regularly read newspapers from markets ranging from Baltimore to Houston to the San Francisco Bay area, chances are that you missed some of the op-eds that CPR's scholars and staff published in the nation's newspapers in February. We post links on our website, of course; you can find them on the various issue pages, as well as on our op-eds page. But we thought CPRBlog readers might appreciate a quick rundown from last month. Mon, 06 Mar 2017 07:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CB9AEC9E-C80D-C661-29F810085121E6D6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CB9AEC9E-C80D-C661-29F810085121E6D6 The first rule of reading anti-regulatory bills, executive orders, and other policy prescriptions is: Sweat the hyper-technical, anodyne-sounding stuff. And President Donald Trump's February 24 executive order on "Enforcing the Regulatory Reform Agenda" demonstrates why this rule exists. Fri, 03 Mar 2017 08:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AC067A29-E1DD-D77B-75B27F73C77491E9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AC067A29-E1DD-D77B-75B27F73C77491E9 Did you know that as of July 2016, we have a new federal law mandating that genetically engineered food be labeled? It is true - see 7 U.S.C. s. 1639(b)(2)(D) (Jul. 29, 2016). So when, you might ask, will you be able to know which of all those foods we buy at the grocery store are produced with GMOs? Thu, 02 Mar 2017 13:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9D5D3839-F352-8D4E-078D8852B1B0E406 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9D5D3839-F352-8D4E-078D8852B1B0E406 In his first speech upon assuming his duties as EPA Administrator, Scott Pruitt informed the agency's employees that "regulators exist to give certainty to those that they regulate." No, Mr. Pruitt, they do not. Regulators and the regulations they are responsible for adopting and enforcing exist to protect the public interest. In particular, they exist to correct market failures, such as the refusal of polluting industries to internalize the costs of the harm they do to public health and the environment. Thu, 02 Mar 2017 08:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=79445B2B-93A4-889D-DE085A9A39710C88 http://www.progressivereform.org/CPRBlog.cfm?idBlog=79445B2B-93A4-889D-DE085A9A39710C88 Last summer, when floodwaters nearly wiped out Old Ellicott City, many people looked at the damage as bad luck caused by a 500-year storm. The truth is that such storms are no longer rare events. The Northeast United States has experienced a staggering 70 percent increase in intense rainstorms thanks to climate change. Unfortunately, efforts in the Chesapeake Bay region to adapt policies to address these threats are lagging far behind, and without broad and meaningful action, more property damage, injuries and loss of life are likely. Heavier and more frequent rains, among other impacts of climate change, also pose a threat to the massive effort to clean up the bay. Tue, 28 Feb 2017 12:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0FD358EF-C5BE-8471-75ED926EECF6C17A http://www.progressivereform.org/CPRBlog.cfm?idBlog=0FD358EF-C5BE-8471-75ED926EECF6C17A Imagine you come across a colleague sitting at his desk amid piles of yellowed papers. When you ask what he is working on, he says it's his annual family budget. "What's with all the old papers?" you might ask. "Oh," he replies, "I always work my new budget off my receipts and bills from 1983, the year we married. Some of them are getting pretty hard to read." "Don't you keep updated records?" you might ask. "And haven't your family finances changed significantly over the last 34 years? I know one of your kids is going to college this fall. You've bought a new house, and you and your wife have switched jobs since then." "Well, yes," your colleague says, "but 1983 is the baseline for us." No reasonable person would plan a budget this way. Yet it is exactly the approach some in Congress are trying to foist on the Interior Department's Bureau of Land Management in their latest effort to wipe away as many Obama-era regulations as possible. Tue, 28 Feb 2017 08:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0ACD6185-0636-2092-811079BE2309B574 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0ACD6185-0636-2092-811079BE2309B574 The ascension of Scott Pruitt as Administrator of the Environmental Protection Agency (EPA) ushers in a new chapter in the long story of cooperative federalism in the administration of U.S. environmental laws. Pruitt's words and actions as the Attorney General of Oklahoma suggest that, as much as any other issue, idea, or policy, federalism will be a recurring theme. But are the cries about federalism really about finding the proper balance of state and federal roles in implementation of our environmental laws? Or is federalism merely a tool in the conservative toolbox used to achieve their real aim: dismantling environmental regulation? Mon, 27 Feb 2017 14:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0216CC4F-DF1C-585A-30A67316557ED2F4 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0216CC4F-DF1C-585A-30A67316557ED2F4 At a national meeting of state utility regulators, the head of the group recently said that the Clean Power Plan was basically dead, but this might not matter because "arguably, you're seeing market-based decarbonization" due to technological changes. Case in point: Texas. Tue, 21 Feb 2017 10:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A280E0AF-B97A-1ABF-CB98DAFD437E2CA9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A280E0AF-B97A-1ABF-CB98DAFD437E2CA9 The so-called Regulations from the Executive In Need of Scrutiny Act (REINS Act) has already passed the House this year, as it did in previous sessions. The current version, which amends the Congressional Review Act (CRA), differs somewhat from previous versions but still suffers from a fatal flaw - it is unconstitutional. Tue, 14 Feb 2017 09:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3C5ACFC6-C222-F08F-A106B521ABA655E3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3C5ACFC6-C222-F08F-A106B521ABA655E3 To carry out their duty under the Constitution, senators must ask themselves the following question when considering a president's cabinet nominee: Will this person faithfully execute the laws, even if the president wishes to ignore them and carry out a contrary policy? Unless the answer to that question is a clear "Yes," they must reject the nominee. Mon, 06 Feb 2017 12:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CBDACD9F-A0D6-132D-AB6E14F990629B9D http://www.progressivereform.org/CPRBlog.cfm?idBlog=CBDACD9F-A0D6-132D-AB6E14F990629B9D This week, the Chesapeake Bay Program released its annual Bay Barometer report. Along with the Chesapeake Bay Foundation's annual State of the Bay and the University of Maryland Center for Environmental Science's Chesapeake Bay Report Card, the Bay Program's report closes out the assessments of the Bay for 2016 (for what it's worth, CPR Member Scholar Rena Steinzor and I released our own assessment last year). Thu, 02 Feb 2017 15:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=03D15F7D-F65C-7B05-77D7BA20FE951E61 http://www.progressivereform.org/CPRBlog.cfm?idBlog=03D15F7D-F65C-7B05-77D7BA20FE951E61 Remember how President Donald Trump bragged he was going to run the country like a business? Imagine if before Trump could open a new casino, he was bound by a rule to close two existing casinos, and the costs of the new casino couldn't exceed the cost savings from no longer operating the old ones. Would this make sense as a business strategy? Of course not. Unless you were trying to run the business into the ground. Tue, 31 Jan 2017 12:37:22 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9804F576-C104-FB5F-BB9BA2F7BCB20C50 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9804F576-C104-FB5F-BB9BA2F7BCB20C50 As long as Donald Trump is in the White House, progressives should harbor no delusions that the Administrator of the Environmental Protection Agency (EPA) is going to be a wool-socks-in-Birkenstocks tree hugger. Scott Pruitt is certainly no such individual. But nor is he a person with the experience, depth of understanding of the agency's programs, or temperament to run the agency. Tue, 31 Jan 2017 09:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9161DA26-EC77-A90A-0D2B9A84A0627A35 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9161DA26-EC77-A90A-0D2B9A84A0627A35 Donald Trump based his candidacy on the claim that he would serve working-class people who established politicians have neglected. He promised $1 trillion of infrastructure investment over 10 years, which could generate a lot of blue-collar employment while potentially repairing crumbling bridges and roads, replacing antiquated wastewater treatment systems (in Flint and elsewhere), and creating a mass transit system that could move us into the 21st century in that realm. A sound infrastructure program, unlike anything else that Trump has proposed, really would grow the economy and help hard-hit workers across the country. Unfortunately, he did not propose that government raise and spend $1 trillion on infrastructure. Instead of funding his program with a modest tax increase and bond revenue, he promised a $9 trillion tax cut primarily benefitting wealthy people like himself. Mon, 30 Jan 2017 13:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D2591233-912A-DAE0-9CFD92CDF9A0EC05 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D2591233-912A-DAE0-9CFD92CDF9A0EC05 The Senate Labor Committee will hold a confirmation hearing Feb. 7 on President Donald Trump's nomination of Andrew Puzder as Secretary of Labor. If confirmed by a vote of the full Senate, Puzder will oversee all of the agencies and departments within the Department of Labor, including the Occupational Safety and Health Administration (OSHA), the Wage and Hour Division (WHD), and the Office of Federal Contract Compliance Programs (OFCCP). This is troubling, to say the least, because a look at Puzder's record and public statements on labor issues suggests he is not the right person for the job: he believes in cutting worker protections, not strengthening them. Mon, 30 Jan 2017 08:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CE4E729B-98EC-E3E4-B8477439C5D12BC7 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CE4E729B-98EC-E3E4-B8477439C5D12BC7 We're only a few days into the Trump administration, and a "gang that doesn't shoot straight" narrative is taking root in the media. From outright lies about crowd numbers at the inauguration, to fictionalized accounts of millions of illegally cast votes, to hashtag-ready assertions about "alternative facts," it's been a rough start, and the media is covering it all, exposing the dishonesty. Wed, 25 Jan 2017 07:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=420026E9-A65A-8CA1-8079096A0431218B http://www.progressivereform.org/CPRBlog.cfm?idBlog=420026E9-A65A-8CA1-8079096A0431218B On January 24, the Senate Committees on Budget and Homeland Security and Governmental Affairs held confirmation hearings for Rep. Mick Mulvaney (R-SC), President Donald Trump's selection for Director of the Office of Management and Budget (OMB). Mulvaney tried to assuage some of the concerns about his nomination, but his answers attempting to mask his disdain for public protections - combined with his past rhetoric and actions - show that he should not be confirmed. Tue, 24 Jan 2017 17:45:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3AAD3400-D2DD-9CBC-2A17BBFF0A9BEFAC http://www.progressivereform.org/CPRBlog.cfm?idBlog=3AAD3400-D2DD-9CBC-2A17BBFF0A9BEFAC The Food and Drug Administration (FDA) and Environmental Protection Agency (EPA) recently updated their nationwide consumption advisory on mercury contamination in fish. The advisory, which focuses on women of childbearing age and children, aims to "make[] it easier than ever" to determine which fish species to eat and which to avoid. It seeks to ensure that women and children don't have to forgo the health benefits of eating fish in order to avoid consuming the potent neurodevelopmental toxin. Despite its stated goals, the advisory has already generated criticism because it continues to require families to navigate a complex public health message. But this criticism just scratches the surface of the problem, a problem that the new Trump administration appears poised to make worse. Tue, 24 Jan 2017 09:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0791AA1A-947C-0888-21860256B0101C57 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0791AA1A-947C-0888-21860256B0101C57 There are few reasons for the Senate to confirm former Texas Governor Rick Perry as Secretary of the U.S. Department of Energy (DOE) and many reasons to oppose his confirmation. He famously vowed to abolish the DOE when he ran for president in 2012 (along with several other federal agencies) but then could not even remember the name of the agency when asked about it during the Republican primary debates. One might have guessed at that time that he knew very little about what the agency actually did. This lack of knowledge has been borne out during the confirmation process. Mon, 23 Jan 2017 11:15:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F90D1923-F102-A3E9-0755C426BD4089E0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F90D1923-F102-A3E9-0755C426BD4089E0 Rep. Ryan Zinke, a congressman from Montana and Donald Trump's pick for the next Secretary of the Interior, said some encouraging things in his Senate hearing on January 18. First, he acknowledged that the climate is changing and that "man has had an influence," disavowing Trump's notorious statement that climate change is a hoax. Second, he stated in strong terms his opposition to divestiture of the lands and resources owned by the federal government, declaring that "I am absolutely against transfer and sale of public lands. I can't be more clear." Third, he reiterated his support for continuing congressional financing of the Land and Water Conservation Fund, which has enabled federal, state, and local governments to acquire millions of acres of land for recreational purposes since its creation in 1965. Each of these positive sentiments comes with significant caveats attached to them, however. Thu, 19 Jan 2017 18:15:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3813EFCC-DC8E-AD9F-C04381C6DCCAD2B0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3813EFCC-DC8E-AD9F-C04381C6DCCAD2B0 At night, you can hear the hooting of owls in the vineyard. The owners have deployed owls and falcons to control the pests that threaten the Kendall Jackson vineyards due to milder winters. But birds of prey aren't the only things flying above the vineyard. There are also drones, which are used to observe small differences in the color of the vines that are clues to water needs and other issues. The goal is to help the vineyard flourish despite a drier, warmer climate. Thu, 19 Jan 2017 08:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=03FBD8EC-FE91-7C18-09E4D6C8F0D8160B http://www.progressivereform.org/CPRBlog.cfm?idBlog=03FBD8EC-FE91-7C18-09E4D6C8F0D8160B It went pretty much unheralded by the national media, but in December, Illinois adopted a major new energy law - and with strong bipartisan support. Each side had some things to celebrate. Wed, 11 Jan 2017 14:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=95707F82-9A3D-86FC-448013B81E1BB90A http://www.progressivereform.org/CPRBlog.cfm?idBlog=95707F82-9A3D-86FC-448013B81E1BB90A My, but the year 2016 has been a humdinger, a whopper, a real sockdolager. Donald Trump is measuring drapes for the White House. His allies in the Republican Party hold both chambers of Congress. At the state and local levels, Democratic influence is at historic lows. Did I mention there are more than a hundred vacancies on the federal court to be filled by a soon-to-be President Trump, including an open seat on the Supreme Court? We at CPR have been thinking about how to leverage our organization's capabilities during the Trump administration. We've started planning a strategy to make our case throughout the country, at the national, state, and municipal levels. As we greet the new year, I offer these resolutions - based on some studied reflection and many conversations I've had with others - for those dedicated to defending and promoting progressive ideas in the next four years. Sat, 31 Dec 2016 08:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=38DF0721-F2D7-215F-EFD636A79F75EA00 http://www.progressivereform.org/CPRBlog.cfm?idBlog=38DF0721-F2D7-215F-EFD636A79F75EA00 Not content to misappropriate the word "freedom," the House Freedom Caucus is heavy into borrowing other folks' work and claiming it as their own. USA Today found that last week's regulatory hit list from the Caucus included lots of material "lifted from other places without attribution." Wed, 21 Dec 2016 11:56:51 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=57209840-FC13-3BC0-AB25681B0DA36EF8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=57209840-FC13-3BC0-AB25681B0DA36EF8 Jim Cason, the GOP mayor of Coral Gables, Florida, wants us to talk about climate change: "'We're looking to a future where we're going to be underwater, a great portion of South Florida,' Cason said. 'For all of us down here, this is really not a partisan issue. We see it. We see the octopus in the room, not the elephant.'" (E&E News) Mon, 19 Dec 2016 12:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F07A0640-A2BF-D556-DCBFB2BEF04430F0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F07A0640-A2BF-D556-DCBFB2BEF04430F0 As President-elect Donald Trump continues to shape his cabinet, we are seeing plenty of indications of how agencies like the Department of Energy, the Environmental Protection Agency (EPA), and even the State Department will approach energy and environmental policy. Trump's stated policy preferences and those of his nominees threaten to upend decades of progress toward a clean energy future as they exacerbate the politicization of and polarization around energy development and our environment. Thu, 15 Dec 2016 14:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=269958CD-AABB-B47A-4565F8AD34BAFA20 http://www.progressivereform.org/CPRBlog.cfm?idBlog=269958CD-AABB-B47A-4565F8AD34BAFA20 A burgeoning and little-regulated private industry that specially mixes drugs at so-called compounding pharmacies poses a public health hazard that the Trump administration is about to make a whole lot worse. Wed, 14 Dec 2016 11:15:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=ECE7BC16-F7A0-2BD5-321876076844AF1C http://www.progressivereform.org/CPRBlog.cfm?idBlog=ECE7BC16-F7A0-2BD5-321876076844AF1C President-Elect Donald Trump has selected Oklahoma Attorney General Scott Pruitt as his Administrator of the U.S. Environmental Protection Agency (EPA), Rep. Ryan Zinke (R-MT) as his Interior Secretary, and former Texas governor Rick Perry as his Energy Secretary. The Center for Progressive Reform (CPR) has released statements on the picks. Tue, 13 Dec 2016 10:40:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8DF2A01D-EA80-EFC2-8A6A41995623F4DA http://www.progressivereform.org/CPRBlog.cfm?idBlog=8DF2A01D-EA80-EFC2-8A6A41995623F4DA Efficient, professional law enforcement is a cornerstone of effective and responsible environmental protection. It is the cop on the environmental beat. While some regulated firms will likely continue to comply with environmental requirements in the absence of vigorous, evenhanded enforcement, other companies will certainly proceed to pollute America's air, water, and land with reckless arrogance. With these realities in mind, it is imperative to recognize the serious, potential threat posed to environmental enforcement by the forthcoming Donald Trump administration and the next Congress. Tue, 13 Dec 2016 09:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=894636A0-C90A-FD90-6E43268A777D38AA http://www.progressivereform.org/CPRBlog.cfm?idBlog=894636A0-C90A-FD90-6E43268A777D38AA One year ago, 195 nations met in Paris and signed what has been hailed as an historic climate agreement. To date, 116 parties have ratified the convention, and it went into force on November 4 of this year. President Obama acknowledged the talks as a "turning point, that this is the moment we finally determined we would save our planet." The signatories pledged to reduce carbon emissions with the intent of keeping global warming below 2 degrees Celsius while pursuing the more ambitious target of limiting temperature increases to 1.5 degrees Celsius from pre-industrial levels. Although the 11-page agreement does not set legally binding emissions limits, the parties committed themselves to a regime that requires them to report on the progress of their commitments every five years beginning in 2020. The technical, economic, and political complexities of climate change mean that the agreement will not, by itself, solve the climate change problem, and not everyone cheered the agreement. Further, the election of Donald Trump raises serious questions about the continued viability of our participation in the Paris convention. Equally troubling is that his election also threatens the continued viability of President Obama's Clean Power Plan (CPP) as evidenced by a transition team memorandum that eviscerates both climate change and clean energy efforts in favor of increased fossil fuel development. Mon, 12 Dec 2016 11:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=852988EE-F00A-88F5-6F0FC8FA5522B085 http://www.progressivereform.org/CPRBlog.cfm?idBlog=852988EE-F00A-88F5-6F0FC8FA5522B085 In an op-ed in The New York Times this morning, CPR Member Scholar William Buzbee describes some of the challenges Pruitt and Trump will face as they undertake that regressive effort to unravel the fabric of rules and regulations protecting the environment. Trump has threatened a wholesale rollback of environmental protections, but Buzbee warns that, "Regulatory reversals lacking a legal or factual basis would result in lawsuits by citizens, states and industries supporting the regulations." Fri, 09 Dec 2016 09:20:18 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E78603BB-9083-F3E4-9BA8AA5DC07E45DC http://www.progressivereform.org/CPRBlog.cfm?idBlog=E78603BB-9083-F3E4-9BA8AA5DC07E45DC Over the last couple of months, a pair of actions taken by the U.S. Environmental Protection Agency (EPA) demonstrate the glacial pace of federal stormwater management policy under the Clean Water Act. In October, EPA rejected a series of petitions by a group of environmental organizations to expand regulatory protections for certain urban waterways. Then last month, EPA issued a new national rule clarifying existing urban water quality regulations, but only because it was forced to respond to a federal court decision now more than a dozen years old. Thu, 08 Dec 2016 15:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C0618B9E-05E9-D060-49DA64C37B350E1E http://www.progressivereform.org/CPRBlog.cfm?idBlog=C0618B9E-05E9-D060-49DA64C37B350E1E Environmentalists are understandably wringing their hands over the likely post-election demise of the Clean Power Plan, the Obama administration's rule to reduce greenhouse gas emissions from power plants, which are the nation's single biggest source of carbon emissions. But, with or without the Clean Power Plan, the states hold the cards to a clean energy transition. Mon, 05 Dec 2016 11:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8AD95767-9064-F855-2A78E59FD872CC5F http://www.progressivereform.org/CPRBlog.cfm?idBlog=8AD95767-9064-F855-2A78E59FD872CC5F Many Americans would likely be shocked to learn how lax government oversight of the manufacture and design of aircraft, such as airplanes and helicopters, has become. After all, any list of those areas of the economy that would seem to cry out for strict regulation would have to include aircraft production and maintenance, considering that when aircraft are defective or contain defective parts, the consequences are almost inevitably catastrophic and tragic. Yet, in a 2004 audit, Congress' nonpartisan Government Accountability Office (GAO) found that severe budget constraints had compelled the Federal Aviation Administration (FAA) - the agency charged with overseeing aircraft safety - to outsource to private parties nearly 90 percent of the work it is supposed to do to ensure that aircraft meet applicable safety requirements. In some cases, the private parties taking on these tasks are the manufacturers themselves, raising at least the appearance, if not the reality, of a conflict of interest. Wed, 30 Nov 2016 08:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E87DFC2B-D60D-F8D9-E5FC162C6A586BB8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E87DFC2B-D60D-F8D9-E5FC162C6A586BB8 What does Steve Bannon - who, despite his well-documented racism, anti-Semitism, and misogyny, was appointed as president-elect Trump's senior counselor and White House strategist - have to do with a rarified and wonky policy exercise such as regulatory cost-benefit analysis? Unfortunately, a lot, as it turns out. Tue, 29 Nov 2016 08:15:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BD292079-CA1F-3304-A41D96F4C6D2A68F http://www.progressivereform.org/CPRBlog.cfm?idBlog=BD292079-CA1F-3304-A41D96F4C6D2A68F Ever since Richard Nixon's vice president, Maryland's own Spiro Agnew, described the nation's ink-stained journalists as "nattering nabobs of negativism," attacks on the media have been reliably base-pleasing material for conservative politicians. But Donald Trump is in a category all his own. For most pols, attacking the press is a way to deflect criticism. For Trump, it was a defining element of his candidacy. At his rallies, he kept the press corps literally penned up so that he could more easily invite his audiences to scorn them. He's continued the same media-hostile approach during the transition, despite an apparent expectation that he would somehow become normalized by virtue of his election. There's no reason to think he will change after he's inaugurated. Tue, 29 Nov 2016 08:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B31A054D-E571-E0FF-CDE69C73FB3D3AB4 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B31A054D-E571-E0FF-CDE69C73FB3D3AB4 We are about to experience a fifth major assault on the health, safety, environmental, and consumer protections that Congress put in place during the 1960s and 1970s, protections that most of us take for granted. And all indications are that this assault will be more intense and more comprehensive than any of the prior assaults on the governmental protections that shield our families and communities from the ravages of an unfettered free market. Tue, 22 Nov 2016 08:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5AAF9A45-A7E0-01E3-B31288FA3ECC3E06 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5AAF9A45-A7E0-01E3-B31288FA3ECC3E06 Hazy as they may be, we are all looking into our crystal balls, trying to envision what a Donald Trump presidency will mean for the world around us. The first glimpses we have of the future - Steve Bannon at Trump's right hand, Jeff Sessions as Attorney General, Michael Flynn as National Security Advisor - project something much darker and more insular than befits a nation whose arc of history is as progressive as ours. Of course, that arc is long and there have been many setbacks and struggles along the way. A Trump presidency will test us. Since November 8, I've witnessed family and friends, allies and colleagues vacillate between moments of despair and moments of inspired energy. At CPR, we have set out to channel that tension and turn it into something useful. Mon, 21 Nov 2016 16:55:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=58B35955-FF5E-D91D-D8C607E86374857B http://www.progressivereform.org/CPRBlog.cfm?idBlog=58B35955-FF5E-D91D-D8C607E86374857B I am writing this for the benefit of readers who, like me, think environmental protection is important and that climate change and other environmental problems are all too real. Mon, 21 Nov 2016 11:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4D360F14-A7E7-05C1-D6C37DB1682BE963 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4D360F14-A7E7-05C1-D6C37DB1682BE963 In early November, the Center for Progressive Reform co-hosted a symposium with the University of Maryland School of Law entitled "Halftime for the Bay TMDL." The symposium was supposed to be about what states, cities, counties, the U.S. Environmental Protection Agency (EPA), industry, and citizens can do to accelerate progress in the second half of the 15-year Chesapeake Bay clean-up effort. However, participants decided that it was equally important to discuss the potentially alarming prospects facing future Bay progress when a new administration and Congress take control next year. Fri, 18 Nov 2016 08:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=57FD0C9A-D668-A9B6-1CEA8090A4D39DF2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=57FD0C9A-D668-A9B6-1CEA8090A4D39DF2 Where do we stand now that the election is over and the presidential transition is beginning? That's a common question these days. Those of us striving in the public interest had come to expect progress, and now that expectation has been dashed. For eight years, President Obama and his team of dedicated public servants did something remarkable. With their deep appreciation and respect for our system of government, they created conditions ripe for a vigorous and uplifting debate about the public policies that shape our lives. Now we are left to wonder if those conditions will endure. Thu, 10 Nov 2016 16:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=20E9ECA2-E1AD-56BB-82DFD52D6DF93EC6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=20E9ECA2-E1AD-56BB-82DFD52D6DF93EC6 On November 8, Florida residents voted on a number of items including Constitutional Amendment 1, misleadingly titled "Rights of Electricity Consumers Regarding Solar Energy Choice." Although it gave the appearance of promoting solar energy, Amendment 1 was actually a deceptively worded attempt by big, investor-owned utility companies (including FPL and Duke Energy), masquerading under the banner of "Consumers for Smart Solar," to suppress the growth of solar energy in the Sunshine State and maintain the utilities' current monopoly in the state's energy markets. Tue, 08 Nov 2016 11:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AEFC5084-CB94-D6A6-F787433245487865 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AEFC5084-CB94-D6A6-F787433245487865 During the U.S. presidential race, much ink has been spilled on how important the election is. But one of the most important issues of all - climate change - has made little appearance in the election discourse, even though it is one of many issues on which the candidates have sharp divisions. And those divisions are not just important at the federal level. Climate change and environmental risk have also been politically divisive at the state level. Mon, 07 Nov 2016 16:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=87A0CC9F-F30D-F6B3-2ABF454B5B718D02 http://www.progressivereform.org/CPRBlog.cfm?idBlog=87A0CC9F-F30D-F6B3-2ABF454B5B718D02 Last year, consumers linked Wen hair products to sudden and dramatic hair loss. The story generated a flurry of national coverage and spurred increased interest in just how closely the Food and Drug Administration (FDA) regulates our cosmetic products. Indeed, Wen hair products are not alone in causing dangerous side effects and containing disconcerting ingredients: Consumers have raised alarms over formaldehyde in hair straightening products, mercury in skin creams, and an array of toxic chemicals in children's face paint, including lead, cadmium, toluene, formaldehyde, and others. Tue, 01 Nov 2016 10:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1B8FD056-92DB-2FCF-1E181877AA6DB6A4 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1B8FD056-92DB-2FCF-1E181877AA6DB6A4 In mid-October, the American Constitution Society for Law and Policy published a collection of essays filled with legal and policy recommendations for the next president. Center for Progressive Reform Member Scholar Lisa Heinzerling closed out the publication with a piece on improving federal environmental policy, which includes recommendations for how the next president can ensure that the White House Office of Information and Regulatory Affairs (OIRA) stays out of the way. Mon, 31 Oct 2016 11:21:31 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0F28EB94-AB4F-D50F-268C9C11CDDF7A86 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0F28EB94-AB4F-D50F-268C9C11CDDF7A86 It's been a month since the D.C. Circuit heard oral arguments on the Clean Power Plan, and the nation is in wait-and-see mode. But our report, Untapped Potential: The Carbon Reductions Left Out of EPA's Clean Power Plan, released October 27 by the Center for Progressive Reform, shows that, even if the Plan is upheld, continued climate initiatives to control existing power plant emissions are warranted and workable. Thu, 27 Oct 2016 10:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=169EBD0B-FEED-FA07-2DA77521C09B0F94 http://www.progressivereform.org/CPRBlog.cfm?idBlog=169EBD0B-FEED-FA07-2DA77521C09B0F94 Whatever else may be said about Ken Bone, the red-sweatered citizen questioner at the second presidential debate earned an important place in the pantheon of presidential debates: He's the only person to ask a debate question remotely related to climate change in the last eight years. Wed, 26 Oct 2016 08:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E97AF400-9538-86AD-6395A5F2C4667DF6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E97AF400-9538-86AD-6395A5F2C4667DF6 To date, climate adaptation and resilience planning efforts on the local, state, and federal levels have largely focused on protecting residential, commercial, and municipal infrastructure from sea level rise and deadly storm surge through such structural practices as shoreline armoring. However, a growing number of advocates are raising concerns about the threat that extreme weather poses to the low-income communities and communities of color that are disproportionately situated near industrial facilities vulnerable to flooding. Tue, 18 Oct 2016 12:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=733A0E97-D808-9BCE-E2BFAA4E74B2B775 http://www.progressivereform.org/CPRBlog.cfm?idBlog=733A0E97-D808-9BCE-E2BFAA4E74B2B775 On October 17, the Center for Progressive Reform (CPR) released an assessment of the plans and progress of Baltimore City and the nine largest counties in Maryland to comply with their federal stormwater permits, a key component of the ongoing effort to clean up the Chesapeake Bay and restore it to health. The analysis looks carefully at the jurisdictions' past efforts and future plans, revealing a wide range in the apparent commitment and level of restoration activity as they work to restore their urban and suburban environments and address polluted runoff from impervious surfaces like roads and parking lots. Mon, 17 Oct 2016 11:41:55 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D7342405-DE6E-3A23-7DCA3F650C9608DC http://www.progressivereform.org/CPRBlog.cfm?idBlog=D7342405-DE6E-3A23-7DCA3F650C9608DC On October 12, the Center for Progressive Reform (CPR) announced that David Flores has joined the organization as its new policy analyst. Flores will serve alongside the group's staff and Member Scholars in their efforts to protect public health and the environment, with a particular focus on ways communities and the Chesapeake Bay region can adapt to climate change in a fair, just, inclusive manner. Wed, 12 Oct 2016 11:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1223CB69-A1A1-AAE9-ED781E9D2F8061A2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1223CB69-A1A1-AAE9-ED781E9D2F8061A2 Forced arbitration clauses are now almost impossible to avoid in consumer contracts for financial services and products ranging from credit cards to private student loans. Despite their ubiquity, most consumers aren't even aware of them. This is because companies frequently bury them deep in the lengthy fine print of their contracts, which they then offer to consumers on a 'take it or leave it' basis. Mon, 10 Oct 2016 11:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=47D45E30-A5E3-671F-2307C57F326371C7 http://www.progressivereform.org/CPRBlog.cfm?idBlog=47D45E30-A5E3-671F-2307C57F326371C7 When it comes to worker health and safety, preventing injuries and illnesses is the number one goal. It was for this very purpose that Congress enacted the Occupational Safety and Health Act (OSH Act) and tasked the Occupational Safety and Health Administration (OSHA) with setting and enforcing strong workplace standards. But when preventative measures fail and workers are harmed, agency enforcement actions against the employer (while necessary) don't provide legal redress to workers or their families for the damages they've incurred. Instead, recovering damages often necessitates they hire a private attorney to help them navigate this complex area of the law. Wed, 05 Oct 2016 11:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AEC21876-C968-37A2-F1AE92C9F50E8805 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AEC21876-C968-37A2-F1AE92C9F50E8805 The Separation of Powers Restoration Act, or more easily known as SOPRA, is not a complicated bill. If enacted, it would amend the Administrative Procedure Act to require courts to decide de novo all questions of law, whether constitutional, statutory, or regulatory. As the House Report makes abundantly clear, the intent is to overrule statutorily both Chevron, USA, Inc. v. NRDC and Auer v. Robbins (and its forebear Bowles v. Seminole Rock & Sand Co.), but not Skidmore v. Swift & Co. Mon, 03 Oct 2016 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DD947F72-FF49-6074-F3A71237372FF3FA http://www.progressivereform.org/CPRBlog.cfm?idBlog=DD947F72-FF49-6074-F3A71237372FF3FA In a story published yesterday, the Center for Public Integrity takes a deep dive into the public health impact of the nation's "super polluters," a collection of industrial polluters that account for an outsized share of toxic air pollution and greenhouse gas emissions in the United States. Fri, 30 Sep 2016 11:41:47 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D36FA3E6-0D4F-D2F4-9220F5E114700648 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D36FA3E6-0D4F-D2F4-9220F5E114700648 Larry Hogan promised to be the "best environmental governor that's ever served" in Maryland. But three recent policy developments call that claim into question. Thu, 29 Sep 2016 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=782B25FA-0C8D-33CC-13A2DC94AADB5890 http://www.progressivereform.org/CPRBlog.cfm?idBlog=782B25FA-0C8D-33CC-13A2DC94AADB5890 In the wake of the U.S. Supreme Court's opinion in Michigan v. EPA last term, a number of commentators have revived talk of something called the "Cost Benefit State." It is supposed to be a good thing, although it makes some of us shudder. The phrase was originally coined by Cass Sunstein in a 2002 book by that name. It describes a supposedly utopian government in which agencies and courts apply to all regulatory decision-making a formal cost-benefit analysis (CBA) grounded in welfare economics. Mon, 26 Sep 2016 10:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0364C05A-FDC4-E5D0-F89B1B887D780098 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0364C05A-FDC4-E5D0-F89B1B887D780098 Next Tuesday, the U.S. Court of Appeals for the D.C. Circuit will hear four hours of argument over the Clean Power Plan (CPP). Federalism-linked statutory, regulatory, and doctrinal law has been and will be crucial to the CPP's fate, and several issues of federalism will play a key role. Fri, 23 Sep 2016 11:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6A39E1D2-DAFD-5C2D-66C48E6DB5F12E53 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6A39E1D2-DAFD-5C2D-66C48E6DB5F12E53 Federal contractors that violate labor laws not only cheat workers by disregarding their rights to fair pay and safe workplaces, but they also tend to run into unexpected costs and delays during performance of the contracts they're awarded. With this in mind, in 2014, President Obama issued Executive Order (E.O.) 13673, which seeks to improve cost savings and efficiency in government contracting by requiring prospective contractors to disclose labor law violations and obligating contracting agencies to review those violations before awarding contracts. The E.O. also requires federal contractors to provide employees with wage statements that include certain information so that workers can verify the accuracy of their paychecks. Wed, 21 Sep 2016 11:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DB88FC48-C204-601A-0A5FF8A8C474FCB8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DB88FC48-C204-601A-0A5FF8A8C474FCB8 The Chesapeake Bay watershed and its restoration framework under the Bay Total Maximum Daily Load (TMDL) are so large and complex that it can be a real challenge to study, much less write about, the problem and the ongoing restoration efforts. This is why the recent U.S. Environmental Protection Agency (EPA) assessment of the tiny Beck Creek watershed in Lebanon County, Pennsylvania is so valuable. The same activities that have fouled Beck Creek and the restoration practices that are working to revive it are the same problems and solutions familiar to all of us who study the Chesapeake Bay. Tue, 20 Sep 2016 09:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A4DA001A-FB54-F81F-131648B2181CC86A http://www.progressivereform.org/CPRBlog.cfm?idBlog=A4DA001A-FB54-F81F-131648B2181CC86A California's recent climate legislation is noteworthy not only for its toughest-in-the-nation carbon reduction goals - 40 percent below 1990 emissions by 2030 - but also for continuing the state's tradition of linking climate and environmental justice goals. AB 197, which accompanied a carbon reduction bill known as SB 32, prioritizes direct emission reductions likely to improve air quality; increases public access to information about carbon, conventional, and toxic emissions; and establishes a new cross-cutting legislative oversight committee to systematically monitor California's multi-faceted climate programs. Mon, 19 Sep 2016 09:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0DC5EEF3-9B02-F46A-54D19E4D60A4E837 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0DC5EEF3-9B02-F46A-54D19E4D60A4E837 On September 14, the House of Representatives, in an almost completely party-line vote, passed the Regulatory Integrity Act (H.R. 5226), a bill that would prohibit the U.S. Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), and other agencies from engaging the public on their pending efforts to address climate change, prevent foodborne illness, and otherwise act in the public interest. Center for Progressive Reform Senior Policy Analyst James Goodwin released a statement in reaction to the bill's passage. Thu, 15 Sep 2016 11:34:31 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CEAC8C63-EBC5-62EF-0C6A6DD5A2F39711 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CEAC8C63-EBC5-62EF-0C6A6DD5A2F39711 Every year, Thomson Reuters and West Publishing compile a set of significant and influential articles from a number of legal scholars who focus on land use and environmental law. The Land Use & Environment Law Review represents some of the best scholarship on these issues, and peer reviewers recently included five pieces on environmental law published in 2014 and 2015. Among the selected articles are two from CPR Member Scholar Hannah Wiseman and one from Member Scholar Alejandro Camacho. Tue, 13 Sep 2016 13:03:53 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6968CBA6-E54F-BBAD-D4B411FC7E339DDE http://www.progressivereform.org/CPRBlog.cfm?idBlog=6968CBA6-E54F-BBAD-D4B411FC7E339DDE Given the seriousness of global climate disruption and the Clean Power Plan's international role, the rule's survival matters more to achieving the Clean Air Act's stated goal - protecting public health and the environment - than any pollution reduction standard that the U.S. Court of Appeals for the D.C. Circuit has ever reviewed. Thu, 08 Sep 2016 09:05:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FE59AC7A-DFDD-A617-3B340B34CEFA475D http://www.progressivereform.org/CPRBlog.cfm?idBlog=FE59AC7A-DFDD-A617-3B340B34CEFA475D The U.S. Environmental Protection Agency's (EPA's) Clean Power Plan (CPP) relies, in part, on a pollution reduction strategy - generation shifting - that is at issue in the ongoing lawsuit over the rule. Generation shifting involves increasing use of relatively clean natural gas and renewable energy and reducing use of relatively dirty and expensive coal-fired power plants. Although the technique has lowered power plant emissions significantly in recent years, opponents of the CPP have argued in legal briefs that section 111 of the Clean Air Act precludes relying on generation shifting to reduce carbon dioxide emissions. They claim the technique somehow does not lead to reductions at a pollution source, but their argument doesn't hold up under scrutiny. Generation shifting does reduce emissions at each pollution source that takes advantage of the technique and therefore passes muster. Thu, 08 Sep 2016 09:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FE6CF04C-F43B-7277-B8E8B092162DD8C9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FE6CF04C-F43B-7277-B8E8B092162DD8C9 September 2, 2011, was a lot like today, the Friday before a long holiday weekend. While many were already turning their attention to backyard barbecues and afternoon naps in hammocks, the then-Administrator of the White House Office of Information and Regulatory Affairs (OIRA) Cass Sunstein, the controversial official charged with supervising federal regulatory activities, dropped a bombshell. In a notice known as a "return letter," Sunstein publicly announced that President Obama was rejecting what would have been one of the most important public safeguards during his time in office: the Environmental Protection Agency's (EPA) pending rule to strengthen the national air quality standard for harmful ozone pollution. Fri, 02 Sep 2016 10:41:41 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2F5133F1-ED9C-AB28-2CDE92969B3E9ABC http://www.progressivereform.org/CPRBlog.cfm?idBlog=2F5133F1-ED9C-AB28-2CDE92969B3E9ABC Next Wednesday, Public Citizen is holding an important event that aims to promote greater transparency in the presidential transition process. The transition process is among the most critical events in our constitutional system of democracy. As the Center for Presidential Transition lays out in detail in its Presidential Transition Guide, this process is where the incoming president's policy agenda is formulated, where candidates for key administrative posts are selected, and where at least the first year of budget priorities are translated into hard numbers. Wed, 31 Aug 2016 15:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D2BDC937-EC81-7398-F4BE2AD0ED45CC13 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D2BDC937-EC81-7398-F4BE2AD0ED45CC13 It's common knowledge that our energy choices impact the planet's climate, but less widely known is how climate change and its intensified storms, heat waves, droughts, and water shortages affect our energy grid. Already vulnerable, the grid can suffer catastrophic damage when a storm like Hurricane Katrina or Hurricane Sandy strikes. In an Aug. 26 article in Slate, Center for Progressive Reform Board President Rob Verchick explores these vulnerabilities and connects the dots between climate change and the grid. Mon, 29 Aug 2016 15:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6AE6EBB5-E81F-1B2B-F9CFCA68D8AD9814 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6AE6EBB5-E81F-1B2B-F9CFCA68D8AD9814 A new article in the University of Illinois Law Review from CPR President Rob Verchick takes on the challenge of communicating about climate change, identifying some of the disconnects that hamper persuasion on the issue, and suggesting a way forward. Verchick's focus is on "cultural cognition" theory, which observes that people examine, evaluate, and come to understand issues through the lens of their own cultural values. Thu, 25 Aug 2016 10:00:46 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7A6998CD-C31D-1BE5-0F7ACA876E76959A http://www.progressivereform.org/CPRBlog.cfm?idBlog=7A6998CD-C31D-1BE5-0F7ACA876E76959A On Aug. 22, several CPR Member Scholars and staff formally submitted comments on the Consumer Financial Protection Bureau's (CFPB) proposed rule to limit the use of forced arbitration agreements in consumer contracts for financial products like credit cards and bank accounts. Tue, 23 Aug 2016 15:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=356FD293-D7B5-2BF2-6C40300E2B22AC1C http://www.progressivereform.org/CPRBlog.cfm?idBlog=356FD293-D7B5-2BF2-6C40300E2B22AC1C In a new op-ed published in the Raleigh News & Observer, Center for Progressive Reform Member Scholar and Board Member Sidney Shapiro examines two recent examples of politics getting in the way of protecting people and the environment in North Carolina. As he explains, the politicization of science by state officials has serious ramifications for the ability of agencies and scientists to safeguard residents from toxic chemicals, rising sea levels, and more. Thu, 18 Aug 2016 11:11:20 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2BEAE597-004E-4C1C-674979642B3903C2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2BEAE597-004E-4C1C-674979642B3903C2 While the Rolling Stones' "You Can't Always Get You Want" may be an ill-advised campaign song, perhaps it can still serve as the official theme song for Sen. David Vitter's (R-LA) Government Accountability Office (GAO) report requests. The anti-regulatory senator had requested that the GAO audit the Consumer Financial Protection Bureau (CFPB) - a favorite punching bag of the right - to determine whether it is complying with the small business outreach requirements imposed by the Small Business Regulatory Enforcement Fairness Act (SBREFA). Last week, the GAO released the findings of its audit. Just one tiny problem, though: They are probably not what Vitter wanted to hear. Mon, 15 Aug 2016 11:47:25 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=92AD4E10-D6D5-4B08-E40A4A161C4B6A13 http://www.progressivereform.org/CPRBlog.cfm?idBlog=92AD4E10-D6D5-4B08-E40A4A161C4B6A13 Last month was the hottest July on record for several cities across the southern United States, thanks to a heat wave that brought extreme temperatures to most of the country. But even when temperatures aren't record-breaking, extreme heat can be dangerous and potentially fatal if proper precautions aren't taken. Between 2003 and 2012, more than 30 workers died annually from heat-related illnesses and injuries, according to the Occupational Safety and Health Administration (OSHA). In 2014, 18 workers died and another 2,630 workers suffered injuries or illnesses related to excessive heat exposure. Yet OSHA has repeatedly declined to adopt a national standard, instead offering guidance to employers on preventing heat-related illnesses. Thu, 11 Aug 2016 09:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=91B944B7-B5FC-EC56-4B2B13679E0D5FEA http://www.progressivereform.org/CPRBlog.cfm?idBlog=91B944B7-B5FC-EC56-4B2B13679E0D5FEA The idea that climate change is causing migration and displacement is entering the mainstream, but experts have warned against using the term "climate refugees" to describe what we're seeing in small islands, coastal regions, and even conflict zones like Syria. Geoff Dabelko's 2007 post on climate change and migration was an early and important clarification of this emerging phenomenon. He noted that the term "refugee" is problematic because of limitations under international law. He also noted that migration is multi-causal. In fact, the numerous triggers that collide to spur an individual's decision to migrate make it difficult to peg his or her movement to climate change. That difficulty also means that deriving a number for climate migrants remains elusive. Almost 10 years later, these cautionary words are still relevant. Wed, 10 Aug 2016 15:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6495320E-F9CB-E2BD-B47C8E7F92F6FE91 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6495320E-F9CB-E2BD-B47C8E7F92F6FE91 UPDATED (8/10/2016): On August 9 and 10, Center for Progressive Reform Policy Analyst Katie Tracy delivered remarks at two Environmental Protection Agency (EPA) stakeholder meetings on risk evaluation, prioritization, and the revised Toxic Substances Control Act (TSCA). Wed, 10 Aug 2016 11:55:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=634280A8-D93A-8BF4-76ACFF6B57254C53 http://www.progressivereform.org/CPRBlog.cfm?idBlog=634280A8-D93A-8BF4-76ACFF6B57254C53 Two people died on July 30 after a 1,000-year storm brought devastating flooding to the lovely and historic Ellicott City, Maryland, just outside of Baltimore. The 6.5 inches of rain that fell over the course of a few hours damaged or destroyed more than 150 vehicles and scores of buildings, and forced the rescue of dozens of people. It also sent more than 5 million gallons of sewage per day from several different sites into the Patuxent River and out to the Chesapeake Bay. Wed, 10 Aug 2016 09:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=913579C7-FA2A-C2E1-5F9B520D18880808 http://www.progressivereform.org/CPRBlog.cfm?idBlog=913579C7-FA2A-C2E1-5F9B520D18880808 The Clean Water Act instructs states and tribes to revisit their water quality standards every three years, updating them as necessary to reflect newer science and to ensure progress in cleaning up the nation's waters - to the point where people can safely catch and eat fish. Last Monday, Washington State's Department of Ecology unveiled its long-awaited update, revising standards that had been developed back in 1992. The state's rulemaking process has been marked by controversy and delay, which I have criticized several times in the past. Do the new standards finally mean progress? Mon, 08 Aug 2016 16:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=350BA854-9A46-C065-ADACF3C43A92699F http://www.progressivereform.org/CPRBlog.cfm?idBlog=350BA854-9A46-C065-ADACF3C43A92699F Americans are increasingly looking for reforms in our food system. Limited use of pesticides, animal welfare, and sustainability are just some of the issues becoming more important to consumers when they make decisions about their food. Unfortunately, Congress and the regulatory agencies charged with overseeing the food supply have worked slowly - very slowly - to address these and other pressing issues as of late. On the other hand, the food industry and retailers have seen the writing on the wall and have started to shift some of their practices, enough at least that they can market their efforts to consumers. But how extensive are these changes really? Will they address the many systemic hazards and shortcomings in food production and distribution that can harm both our health and the environment? Fri, 05 Aug 2016 09:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=35D99AAF-A86B-D28D-6AB6E18FB7CFCEDA http://www.progressivereform.org/CPRBlog.cfm?idBlog=35D99AAF-A86B-D28D-6AB6E18FB7CFCEDA The White House Council on Environmental Quality (CEQ) issued new guidance this week on considering climate change in environmental impact statements (EIS). This post explores four key points in the guidance. Thu, 04 Aug 2016 09:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=30344DCA-C0F0-54A3-F078DADCE238D7DC http://www.progressivereform.org/CPRBlog.cfm?idBlog=30344DCA-C0F0-54A3-F078DADCE238D7DC Over the past several weeks, the Center for Progressive Reform (CPR) has urged the next president to take a constructive approach to our government and our system of health, safety, environmental, and financial safeguards. With Election Day just three months away, CPR is releasing a new paper that expands on those themes and provides a comprehensive blueprint for how the next president can rebuild our system of regulatory protections. Wed, 03 Aug 2016 09:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FC1305CD-BAEA-CC42-CDB6B4FED5988918 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FC1305CD-BAEA-CC42-CDB6B4FED5988918 In late July, the Occupational Safety and Health Administration (OSHA) cited Pilgrim's Pride, one of the world's largest poultry processors, with more than a dozen serious workplace health and safety violations. CPR Executive Director Matthew Shudtz reacted in a press statement on July 29. Fri, 29 Jul 2016 15:40:47 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2F942791-0F9B-8B22-82C3B6AD87B111C9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2F942791-0F9B-8B22-82C3B6AD87B111C9 If a tree falls in a forest and no one hears it, does it make a sound? More to the point, if law enforcement issues a civil or criminal fine or sentence without anyone knowing, does it have an effect? Fri, 29 Jul 2016 13:05:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=29815FFF-F887-3BBD-1BC8B9C67EEB0B3B http://www.progressivereform.org/CPRBlog.cfm?idBlog=29815FFF-F887-3BBD-1BC8B9C67EEB0B3B Whether it's raging wildfires in the West, catastrophic flooding in the East and Upper Midwest, or rising sea levels on the coasts, there is no question that climate change is affecting and will continue to significantly impact our public lands and the resources they both provide and protect. As a nation, we need to be prepared for these changes and find effective ways to adapt. Wed, 20 Jul 2016 10:57:04 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=55C9AA34-FD6E-81BA-E0852CC32B1AA272 http://www.progressivereform.org/CPRBlog.cfm?idBlog=55C9AA34-FD6E-81BA-E0852CC32B1AA272 In an earlier post, CPR Member Scholar Robert Glicksman discussed the need for the next president to champion a truly positive vision of government and regulation. A new way of thinking and talking about these issues is critically important, and the president should play a key role in charting this course. While a rhetorical shift is important and long overdue, it is also crucial that the next president be prepared to match actions to words. Consequently, the next president should also commit to building a 21st century regulatory system, one that makes good on the promise of a positive vision of government by working to protect our health, safety, environment, and financial security. Continued political gridlock in Congress - if that's what the November election yields - will likely defeat timely and effective legislative responses to public threats of harm. Instead, if any such protections are to come, the next president will have to achieve them through the regulatory system using existing statutory authority. Thu, 14 Jul 2016 09:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=97D5CA86-E4B6-2E06-B096656FB99F6CB2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=97D5CA86-E4B6-2E06-B096656FB99F6CB2 When Congress extensively amended the Clean Air Act in 1970 to form the air pollution laws that we know today, it spoke in no uncertain terms about the breadth of federal authority in this area while also centrally involving states in the effort to clean up the nation's air. Wed, 13 Jul 2016 13:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C42EED1F-D13E-3298-A5404992A9F03DEC http://www.progressivereform.org/CPRBlog.cfm?idBlog=C42EED1F-D13E-3298-A5404992A9F03DEC Although it is well known that regulatory capture can subvert the public interest, it is becoming increasingly clear that there are two forms of capture that can affect the performance of regulatory agencies. Thu, 07 Jul 2016 09:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5A83F335-F096-3346-F6A7DB1523221874 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5A83F335-F096-3346-F6A7DB1523221874 On Wednesday, July 6, the House Judiciary Committee's Subcommittee on Regulatory Reform, Commercial, and Antitrust Law will hold an oversight hearing that looks at the Office of Information and Regulatory Affairs (OIRA), the powerful White House bureau that sits at the center of the regulatory universe. Wed, 06 Jul 2016 08:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5B8CA602-ED41-4749-7D639FF89589FD40 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5B8CA602-ED41-4749-7D639FF89589FD40 For decades, politicians, advocates, and the press have lamented America's aging, deteriorating, or even failing infrastructure and called for change - usually to little avail. Perhaps another strategy should be to celebrate success wherever we see it and spotlight achievements to demonstrate that we can change the situation if we choose key public investments over apathy and short-sighted budget cuts. Just a few weeks ago, residents and advocates in the Chesapeake Bay region heard one such infrastructure success story. Tue, 05 Jul 2016 14:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5940940F-D5DE-488C-D9466A798490D7CD http://www.progressivereform.org/CPRBlog.cfm?idBlog=5940940F-D5DE-488C-D9466A798490D7CD Workplace health and safety standards exist for a reason. When companies ignore them, they put their workers in significant danger. Every year, thousands of workers die on the job in the United States, and many more are seriously injured. Unfortunately, the Occupational Safety and Health Administration's (OSHA's) tools to hold employers accountable for endangering workers have been woefully inadequate for decades. While some of those tools are slated to become stronger, a new report from the Center for Progressive Reform (CPR) shows that the agency needs to seize the moment to reassess additional policies to better deter violators and prevent worker deaths and injuries. Thu, 30 Jun 2016 01:01:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C4AFDD86-A321-8109-0D4695DBAAEFEA44 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C4AFDD86-A321-8109-0D4695DBAAEFEA44 The most important lessons can be the hardest to learn. Sometimes they even take a crisis. We can hope that the sorry saga of Flint, Michigan's lead-poisoned water will be such a teachable moment for at least some of the anti-government crowd, finally driving home the point that government has a vital role in protecting health and safety, and that it can only play it if it takes the responsibility seriously and is provided the wherewithal to do its job properly. Tue, 28 Jun 2016 08:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C34AEB21-FBE3-E881-182D5ACB8755E080 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C34AEB21-FBE3-E881-182D5ACB8755E080 In a merits opinion issued on June 21, 2016, the U.S. District Court for the District of Wyoming (Judge Skavdahl) held that the U.S. Bureau of Land Management--the agency tasked with protecting and preserving federal lands for multiple uses by the public--lacks the authority to regulate hydraulic fracturing ("fracking") on federally-owned and managed lands. Using a Chevron step 1 analysis (one standard used to review agencies' interpretation of the meaning of statutes that grant agencies authority), the court finds that "Congress has directly spoken to the issue and precluded federal agency authority to regulate hydraulic fracturing," with the exception of fracturing that uses diesel fuels. The court bases this erroneous conclusion on the Safe Drinking Water Act (SDWA)--an Act that governs Environmental Protection Agency and state authority over underground water sources. Under the SDWA, entities that inject substances underground must first obtain a permit from the EPA or a state to ensure that they will not endanger underground drinking water sources. Wed, 22 Jun 2016 10:27:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B2EC0166-DDEE-B798-0153117492EAD1E6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B2EC0166-DDEE-B798-0153117492EAD1E6 One of the recurring questions in standing law is the extent to which Congress can change the application of the standing doctrine. A recent Supreme Court opinion in a non-environmental case sheds some light - not a lot, but some - on this recurring question. Tue, 21 Jun 2016 09:30:30 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5C12D420-FDF4-42C0-28693EFE89F9DDFC http://www.progressivereform.org/CPRBlog.cfm?idBlog=5C12D420-FDF4-42C0-28693EFE89F9DDFC Earlier this month, revisions to the Toxic Substances Control Act (TSCA) cleared the Senate and now await President Obama's signature. TSCA's failure to provide EPA with meaningful authority to protect Americans from toxic chemicals was widely recognized, yet the path to revising the law was fraught with controversy. The chemical industry and public health and environmental advocates, as well as Democrats and Republicans in Congress, wrangled over a number of bills for years. The resulting legislation represents a compromise, and there are significant shortcomings in this revised approach to regulating toxic substances. Mon, 20 Jun 2016 12:26:07 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=502F6F6C-A50C-8BA9-A4DAD5EC039CEDE2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=502F6F6C-A50C-8BA9-A4DAD5EC039CEDE2 On June 17, the U.S. Environmental Protection Agency (EPA) released its annual assessments of progress made by the seven jurisdictions in the Chesapeake Bay watershed. The bottom line: nothing has really changed in terms of the content or tone from the previous annual assessments, and they do not appear to reflect a shift in strategy by EPA toward greater enforcement against lagging states under the "accountability framework" of the Chesapeake Bay Total Maximum Daily Load (Bay TMDL). Fri, 17 Jun 2016 16:01:07 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BC8FEE3A-C9F6-F142-6B9DE4615BC452AB http://www.progressivereform.org/CPRBlog.cfm?idBlog=BC8FEE3A-C9F6-F142-6B9DE4615BC452AB On June 14, Speaker Paul Ryan announced the House majority's latest plan to weaken the U.S. system of regulatory safeguards on which all Americans depend. Center for Progressive Reform Senior Policy Analyst James Goodwin released a statement in reaction to this plan. Tue, 14 Jun 2016 14:49:46 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2054876E-EF56-04D8-7CA27B6ACBD01E75 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2054876E-EF56-04D8-7CA27B6ACBD01E75 The Supreme Court held in U.S. Army Corps of Engineers v. Hawkes Co. that a determination by the United States Army Corps of Engineers ("Corps") that the owners of land used for peat mining were obliged to apply to the Corps for a permit under the Clean Water Act ("CWA") before dredging or filling the land was a judicially reviewable final agency action. Although this conclusion seems unremarkable, the case potentially packs a more significant punch from the perspective of administrative and, especially, environmental law. Some background on the history of the Court's involvement with the relevant CWA permit program helps to understand why. Fri, 10 Jun 2016 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BE720FFE-D933-74CA-86551772027EE62F http://www.progressivereform.org/CPRBlog.cfm?idBlog=BE720FFE-D933-74CA-86551772027EE62F As I wrote earlier this week, environmental enforcement is not nearly as effective as it should be. EPA and others have been working on finding creative ways of obtaining compliance, often with the help of new technology. Thu, 09 Jun 2016 14:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1D2D8651-B806-64AD-86840AF25DFB8AC8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1D2D8651-B806-64AD-86840AF25DFB8AC8 Late in May, almost 250 water quality advocates and officials convened in Annapolis for what is likely one of the largest gatherings of Chesapeake Bay experts. The 2016 Choose Clean Water Coalition conference brought together experts from each of the seven Bay jurisdictions and the federal government to share their experiences and ideas and to hear from some of the officials in charge of the Bay restoration process. They included Maryland's Secretary of the Environment, the Director of the Chesapeake Bay Program, and Gina McCarthy, Administrator of the U.S. Environmental Protection Agency (EPA). Wed, 08 Jun 2016 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=88899BF3-A141-D1E2-B160F0EFE46507DE http://www.progressivereform.org/CPRBlog.cfm?idBlog=88899BF3-A141-D1E2-B160F0EFE46507DE The Colorado Supreme Court's decisions last month holding that local governments in Colorado could not ban or place long-term moratoria on hydraulic fracturing ("fracking") added to the growing list of states that have preempted local control over this oil and gas production method. This is a troublesome trend and one that calls for closer scrutiny as more states follow this path. Tue, 07 Jun 2016 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E2833FCA-A287-7CD3-B9B348A2215541AD http://www.progressivereform.org/CPRBlog.cfm?idBlog=E2833FCA-A287-7CD3-B9B348A2215541AD On June 7, the Senate Environment and Public Works Committee's Subcommittee on Superfund, Waste Management, and Regulatory Oversight is set to hold a hearing investigating the Environmental Protection Agency's (EPA) compliance with the Unfunded Mandates Reform Act (UMRA). UMRA is striking because it was passed in 1995 as part of then-House Speaker Newt Gingrich's attacks on the U.S. regulatory system - an era that is reminiscent of today's strident anti-regulatory zeal. Indeed, today's anti-regulatory members of Congress continue to explore ways to use UMRA as a weapon for kneecapping agencies they oppose on political grounds or that are inconvenient to their corporate benefactors. Mon, 06 Jun 2016 14:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=83114065-AA34-48DF-925C310FFB40E864 http://www.progressivereform.org/CPRBlog.cfm?idBlog=83114065-AA34-48DF-925C310FFB40E864 The political debate over regulation tends to focus on the regulations themselves. But enforcing the regulations is just as important. Despite what you might think from the howls of business groups and conservative commentators, the enforcement system is not nearly as strong as it should be. Mon, 06 Jun 2016 10:27:55 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7ADCB89F-FC5D-11EC-005958E279C4EB09 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7ADCB89F-FC5D-11EC-005958E279C4EB09 We have an in-house guideline about bragging on CPRBlog, which is that we try to keep it to a minimum. It's not so much a matter of modesty as it is that we think the work our Member Scholars and staff do speaks for itself. But we're going to suspend our usual practice for a moment to note that a recent list of the 20 most-cited administrative and/or environmental law faculty in the United States includes seven CPR Member Scholars. Fri, 03 Jun 2016 10:41:09 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E0F4AD2D-0991-8983-D9A365A9CF44C579 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E0F4AD2D-0991-8983-D9A365A9CF44C579 During the last few years, airlines have increased their reliance on "bait-and-switch" scheduling. They induce travelers to choose their airline based on advertised routes and schedules. They know that especially good routes are valuable and generally charge more for a good route than a bad one. Long after travelers have taken the bait, often paying more than the lowest available price to avoid delay-prone airports, long layovers, and multiple stops, the airlines simply switch around the schedule. While many of these changes can be minor, changing departure and arrival times by 10 or 20 minutes, increasingly airlines feel no compunction at all about completely tearing up the deal they made, adding stops, drastically increasing layover times, and routing the hapless traveler through a different city than she would have selected when she had a choice. They often make these changes just a few weeks in advance, when alternative flights are either not available at all or fiendishly expensive. These last-minute changes can destroy customers' travel plans, causing travelers to miss scheduled meetings, forcing expenditures for extra nights in hotels, and fouling up rental car arrangements. Thu, 02 Jun 2016 09:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=56F6A673-A47E-CB64-0031D1C04BEBB171 http://www.progressivereform.org/CPRBlog.cfm?idBlog=56F6A673-A47E-CB64-0031D1C04BEBB171 CPR's Rena Steinzor and Katherine Tracy had an op-ed in the Sacramento Bee over the weekend highlighting the reluctance of police and prosecutors to treat worker deaths as if they were anything but mere accidents. In fact, they're often the result of illegal cost-cutting and safety shortcuts by employers, behavior that sometimes warrants criminal charges. They write: "When a worker dies because a trench collapses, and it turns out that managers sacrificed safety to get the job done faster, that's a crime. When managers operate factories with equipment that doesn't have an accessible emergency shut-off switch and an employee is crushed or loses a limb, those managers should be indicted. But with few exceptions, police and prosecutors treat worker deaths and injuries as unforeseeable "accidents" that can't be prevented. So too many companies think they can save money by cutting corners and view the fines involved as a cost of doing business." Wed, 01 Jun 2016 08:37:34 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5122F086-9FF5-FE8E-A20CE75068A5B81D http://www.progressivereform.org/CPRBlog.cfm?idBlog=5122F086-9FF5-FE8E-A20CE75068A5B81D On May 31, the United States Supreme Court released its opinion in US Army Corps of Engineers v. Hawkes, Co. The key question in Hawkes was whether a Clean Water Act jurisdictional determination - that is, a determination about whether an area does or does not contain waters subject to federal regulatory jurisdiction - is a final agency action within the meaning of the Administrative Procedure Act. According to a unanimous court, a jurisdictional determination is indeed final agency action. The majority opinion, written by Justice Roberts, presents the kind of short, businesslike analysis one typically associates with an uncontroversial case. But then comes Justice Kennedy's concurrence, and it's a doozy. In three paragraphs, Justice Kennedy (joined, perhaps not so surprisingly, by Justices Alito and Thomas) asserts that "the reach and systemic consequences of the Clean Water Act remain a cause for concern"; that "the act's reach is 'notoriously unclear'" (quoting Justice Alito's concurrence in Sackett v. EPA); that the Clean Water Act holds "ominous reach"; and that the act "continues to raise troubling questions regarding the Government's power to cast doubt on the full use and enjoyment of private property throughout the United States." Tue, 31 May 2016 16:06:10 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5215F499-EFEE-5103-7C8E860B4EDCB7E0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5215F499-EFEE-5103-7C8E860B4EDCB7E0 The Environmental Protection Agency's (EPA) Clean Power Plan - the agency's bold attempt to use the Clean Air Act to protect our health and the environment by regulating greenhouse gas emissions from new and existing power plants - has been challenged in court by some 28 states, 205 members of Congress, electric utilities, coal companies and other industries, some labor unions, and a few conservative, nonprofit law firms. In response, EPA's rule has been defended by the agency itself, 18 states, more than 200 current and former members of Congress, dozens of cities and counties, numerous environmental and public health organizations, certain industries and labor unions, climate scientists, electric grid experts, two former EPA administrators, and others. Thu, 26 May 2016 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1CB5D532-A0B4-5B93-DE9ABB1326DF332B http://www.progressivereform.org/CPRBlog.cfm?idBlog=1CB5D532-A0B4-5B93-DE9ABB1326DF332B This morning, the U.S. Government Accountability Office (GAO) released a report finding that hazardous working conditions across the meat and poultry industry put workers at risk of on-the-job injuries and illnesses. While injury and illness rates reportedly declined in the decade from 2004 to 2013, GAO emphasizes that the decrease might not be because of improved working conditions in the industry. Rather, the drop is likely due to data-gathering challenges at the Department of Labor and underreporting across the industry. Wed, 25 May 2016 16:40:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1DB9AB50-B115-5CD9-2F908E99A279841B http://www.progressivereform.org/CPRBlog.cfm?idBlog=1DB9AB50-B115-5CD9-2F908E99A279841B Are you interested in ensuring that communities impacted by climate change can effectively adapt to changing conditions and that vulnerable populations will be protected and treated fairly in the process? Do you have a background in the legal and policy issues related to both clean water and climate change adaptation? If so, you should consider applying for the new climate change adaptation policy analyst position at the Center for Progressive Reform! The focus of this position is climate change adaptation, with special emphasis on environmental justice and the implications of climate change for the Chesapeake Bay. The analyst will join a small team of professional staff and a network of top-notch Member Scholars who are examining these issues and are looking to turn policy into action. Wed, 25 May 2016 13:05:49 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=16A3586F-ED9B-06AA-85C3443A29C54EA4 http://www.progressivereform.org/CPRBlog.cfm?idBlog=16A3586F-ED9B-06AA-85C3443A29C54EA4 Within the next few days, Congress is likely to enact the first update of a major environmental statute in many years. Widely hailed as a bipartisan compromise, legislation to amend the Toxic Substances Control Act (TSCA, pronounced like the opera Tosca) was made possible by the steely and relentless determination of the U.S. chemical industry. The deal places burdens on the Environmental Protection Agency (EPA) that will undermine public health and environmental protections for many years to come. Tue, 24 May 2016 10:20:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DCC744AA-DE30-519C-874E812BFA8BE657 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DCC744AA-DE30-519C-874E812BFA8BE657 On May 24, the Fisheries, Water, and Wildlife Subcommittee of the Senate Environment and Public Works Committee will convene a hearing on a topic that is fast becoming the congressional conservative equivalent of talking about the weather: the Environmental Protection Agency's (EPA) Clean Water Rule. With the provocative title of "Erosion of Exemptions and Expansion of Federal Control - Implementation of the Definition of Waters of the United States," the hearing is unlikely to provide a sober or thoughtful forum for evaluating the rule's merits. Nevertheless, Center for Progressive Reform Member Scholar Bill Buzbee, who has been tracking this critical safeguard for several years, will do his best to keep the proceedings grounded in reality by offering testimony that rebuts the many "legally and factually erroneous" attacks that are now frequently made against the rule. Tue, 24 May 2016 08:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B5D825BE-BF59-2215-4881EA7370C3BAD9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B5D825BE-BF59-2215-4881EA7370C3BAD9 With the congressional majority continuing to gut enforcement budgets, forcing federal environmental and workplace safety agencies to cut staff, criminal prosecution of corporate bad actors is more important than ever. That's the thrust of Center for Progressive Reform Member Scholar Rena Steinzor's commentary in the May/June issue of The Environmental Forum, the policy journal of the Environmental Law Institute. Fri, 20 May 2016 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E8B70066-DB03-9066-B8692A948E0AA192 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E8B70066-DB03-9066-B8692A948E0AA192 Back in March, the Occupational Safety and Health Administration (OSHA) finalized its long-awaited silica standard, requiring employers to reduce workers' exposure to the toxic, cancer-causing dust so common to construction and fracking sites, among other workplaces. OSHA estimates that the new standard will prevent more than 600 deaths and 900 new cases of silicosis annually. That is certainly commendable, but the kudos would be more heartfelt if the new standard had been adopted decades earlier and if it fully addressed the significant health risks to workers. The unconscionable delays and unjustified concessions awarded to industry at the expense of workers' health and safety are hardly unique to the silica standard; rather, they are the product of our broken regulatory process, which is riddled with analytical requirements designed to generate business-friendly outcomes. Thu, 19 May 2016 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4F5D7FAC-F832-1EF2-82813674F61CF170 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4F5D7FAC-F832-1EF2-82813674F61CF170 Clean water: We can't take it for granted, as the people of Flint, Michigan, can attest. And they're not alone. In too many communities across the nation, drinking water fails to meet minimum safety standards, forcing consumers to buy bottled water and avoid the stuff coming out of their taps. We cannot say that we didn't see this coming. Part of the problem is that, as a society, we have always undervalued clean water. Wed, 18 May 2016 06:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=465A119B-EED0-012C-80F90C87CD01938C http://www.progressivereform.org/CPRBlog.cfm?idBlog=465A119B-EED0-012C-80F90C87CD01938C The growing problem of economic inequality in the United States continues to draw significant attention - and for good reason. By 2011, America's top 1 percent owned more than 40 percent of the nation's wealth, and ours ranks as one of the most unequal economies among developed countries. Meanwhile, the median wage rate for workers has remained largely unchanged in real terms over the last 40 years - even as worker productivity has grown at a steady clip - contributing to the largest gap in decades between high-wage earners and the rest of us. Several critical legal, social, and political institutions play a role in contributing to and reinforcing the growing chasm that separates the wealthy few from the rest of us. One that is overlooked, but no less important, is the U.S. regulatory system. When working properly, the regulatory system implements safeguards that help ensure that businesses bear the costs associated with their profit-making activities, rather than shifting them onto neighbors, consumers, or workers in the form of pollution, dangerous products, or hazardous working conditions. In doing so, the regulatory system serves as a crucial bulwark against economic injustice. Tue, 17 May 2016 06:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B60B3D33-FDE1-5166-AA2CF6138390BD0D http://www.progressivereform.org/CPRBlog.cfm?idBlog=B60B3D33-FDE1-5166-AA2CF6138390BD0D Rulemaking has slowed to a crawl throughout the executive branch. If an agency does not have a statutory mandate to undertake such a brutal and resource-intensive process, the choice to accomplish its mission through any other means will be tempting. Of course, if the policy issues are controversial, no pathway to their redress - rule, adjudication, guidance, or bully pulpit - will be problem-free. The opposition party made clear, almost as soon as President Barack Obama was elected, that over-regulation would remain among its most shrill and pervasive battle cries. Professor Tom McGarity, my friend and colleague at the Center for Progressive Reform and a gifted commentator on these trends, calls the new reality surrounding the rulemaking process a "blood sport administrative law." By this he means that industry opponents of new rules have broadened the arena of conflict to include early and constant appeals to Congress and the courts, raising the stakes and making the costs quite high for any constituency that wants to prevail in rulemaking battles. Not coincidentally, this blood-sport approach edges public interest groups to the sidelines. Fri, 13 May 2016 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1E3D448E-A06E-EEC2-26444290A72F225E http://www.progressivereform.org/CPRBlog.cfm?idBlog=1E3D448E-A06E-EEC2-26444290A72F225E The U.S. Department of Justice (DOJ) recently launched a criminal investigation of Dole Food Company, continuing a trend of criminal enforcement against those responsible for deadly food safety lapses. The investigation stems from a Listeria outbreak in bagged salad that sickened 33 people, four of whom died. Thu, 12 May 2016 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4A792573-DA8B-2486-85E98571FF8E9B58 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4A792573-DA8B-2486-85E98571FF8E9B58 Can you imagine working for a boss who refuses you the dignity of taking a bathroom break? According to a revealing new report published today by Oxfam America, denial of bathroom breaks is a very real practice at poultry plants across the country, and line workers at these plants often "wait inordinately long times (an hour or more), then race to accomplish the task within a certain timeframe (e.g., ten minutes) or risk discipline." Wed, 11 May 2016 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1DA87DA0-04B3-F01F-B4684E6B9AAF924C http://www.progressivereform.org/CPRBlog.cfm?idBlog=1DA87DA0-04B3-F01F-B4684E6B9AAF924C In the world of watershed restoration, there are multiple tools and tactics that government agencies, private landowners, and industry can use to reduce pollution and clean up our waterways. In Maryland, two of those approaches seem destined to collide. On the first track is nutrient trading, a least-cost pollution control concept predicated on the idea that if some distant entity can reduce the same amount of pollution at a lower cost than a facility with a water pollution control permit, then the permit holder should pay the other entity to do so. On the second track is green infrastructure investment, a labor-intensive, capital-intensive direct investment in local urban pollution controls. Neither concept has yet gained widespread adoption, despite pilot programs and local initiatives in a few dozen places around the United States, but what happens when both concepts emerge at the same time and the same place? Tue, 10 May 2016 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E8475A75-9198-3448-241AE7013FE66816 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E8475A75-9198-3448-241AE7013FE66816 These days, it seems a week doesn't go by without some conservative advocacy group releasing a new study that purports to measure the total annual costs of federal regulation. In this case, it's literally true. Last week, the reliably anti-regulatory Competitive Enterprise Institute (CEI) put out its annual tally, provocatively titled "Ten Thousand Commandments," which this year finds a total cost of $1.885 trillion for 2015. And the week before that, the just-as-reliably anti-regulatory Mercatus Center published a report that concludes that federal regulations cost $4 trillion in 2012. To make things more confusing, these studies follow the same basic two-part template. First, they include only the cost side of the ledger, ignoring the huge benefits that federal regulations produce by protecting people and the environment against unacceptable harms. No reasonable policy evaluation would take such a misguided approach, and the decision to ignore benefits is clearly calculated to mislead audiences into believing that regulations are an inherent drain on the economy. It might be useful for political propaganda, but as far as serious policy analysis, the approach is worthless. Mon, 09 May 2016 11:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DA6A88BC-AFC3-D090-2C768107F7CD3367 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DA6A88BC-AFC3-D090-2C768107F7CD3367 Right now, the United States' second-most-heated environmental controversy - behind only the Clean Power Plan - involves the Clean Water Rule, which seeks to clarify the scope of federal regulatory jurisdiction under the Clean Water Act. According to its many opponents, the rule is one big power grab. EPA and the Army Corps of Engineers, according to the standard rhetoric, are unfurling their regulatory tentacles across the landscape like some monstrous kraken, with devastating consequences for key sectors of the American economy. In a forthcoming article, I argue that this rhetoric is false, and that it also misses a much more interesting true story. Thu, 05 May 2016 09:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B4BE0A8A-C46F-1657-BAAB032CA331AFC2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B4BE0A8A-C46F-1657-BAAB032CA331AFC2 Opening a checking account or using a credit card is an essential, everyday activity for many Americans, but most financial services are governed by pages of fine print, much of which is difficult to navigate and understand. As a new paper from the Center for Progressive Reform (CPR) shows, these contracts often contain forced arbitration clauses that severely restrict consumer rights and frustrate corporate accountability. The paper, Regulating Forced Arbitration in Consumer Financial Services: Re-Opening the Courthouse Doors to Victimized Consumers, is being released the day before a widely anticipated proposed rule from the Consumer Financial Protection Bureau (CFPB). CPR and other consumer protection experts expect the proposal to restrict the use of forced arbitration clauses in financial services agreements. Wed, 04 May 2016 09:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7A60991B-B924-02EF-60C864FF39A54360 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7A60991B-B924-02EF-60C864FF39A54360 It's commonplace to say that agencies engage in lawmaking when they issue rules. Conservatives denounce this as a violation of the constitutional scheme; liberals celebrate it as an instrument of modern government. Both sides agree that in reality, though not in legal form, Congress has delegated its lawmaking power to agencies. But this is mistaking an analogy for an identity. It's true, of course, that Congress has given agencies the authority to make rules, which is one aspect of legislative power. But agency authority is a far cry from the robust policymaking power enjoyed by Congress. Thus, the idea that Congress has transferred a chunk of its lawmaking authority to agencies is quite an oversimplification - an oversimplification that has distorted debates over delegation. Tue, 03 May 2016 09:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=81AA7CE5-DD1F-9D4A-F23737D72FC2B235 http://www.progressivereform.org/CPRBlog.cfm?idBlog=81AA7CE5-DD1F-9D4A-F23737D72FC2B235 Once upon a time, congressional conservatives pretended to care about the appearance, if not the reality, of corruption afflicting the federal budgeting process. Strangely, they chose to act on their sanctimonious outrage by banning earmarks - or legislative instructions that direct federal agencies to spend appropriated funds on certain specified projects - while leaving the much greater problem of "limitations riders" intact. These riders essentially function as the reverse of earmarks by prohibiting federal agencies from spending appropriated funds on certain specified projects, and today, they are typically used to block public safeguards at the behest of powerful corporate interests. Mon, 02 May 2016 10:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E0F5BC16-DDA7-C682-269D46538EC43990 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E0F5BC16-DDA7-C682-269D46538EC43990 The Clean Water Act has been a success in many ways. The discharge of pollutants from both industrial and municipal point sources has plummeted, the loss of wetlands has been cut decisively, and water quality has improved broadly across the entire nation. Despite all of that progress, many of our waters remain impaired. The primary reason for this lies in the failure of the Clean Water Act to effectively tackle two significant sources of water pollution: nonpoint source pollution (diffuse runoff from, for example, fields and logging operations) and hydrologic modifications (such as water withdrawals and dams). Climate change will exacerbate both problems. Fri, 29 Apr 2016 09:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B318AA08-97CB-A2F3-C0408C62A033ED91 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B318AA08-97CB-A2F3-C0408C62A033ED91 Today, a lot of numbers will be thrown around - the staggering number of workers who died gruesome deaths on the job last year, the paltry fines that employers responsible for those deaths paid, the months and years we've waited for Congress to revisit the Occupational Safety and Health Act to make it more relevant to our modern workforce. There's good reason to reflect on those numbers. They tell us something important about our society and our relationship to work. They tell us that we have a long way to go before the real value of workers' time, effort, and dedication to their jobs is respected and honored. Thu, 28 Apr 2016 09:35:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=794A2F15-E386-F32F-9AF5675CEDC8760C http://www.progressivereform.org/CPRBlog.cfm?idBlog=794A2F15-E386-F32F-9AF5675CEDC8760C Center for Progressive Reform Member Scholar Joel Mintz submitted written testimony to the House Judiciary Committee's Subcommittee on Regulatory Reform, Commercial, and Antitrust Law ahead of its April 28 hearing on yet another ill-advised bill, the misleadingly named "Stop Settlement Funds Slush Funds Act of 2016." The bill would place arbitrary limits on how the federal government can use funds it obtains through settlement agreements that arise from enforcement actions brought against companies that have violated federal laws and the regulations that implement them. Thu, 28 Apr 2016 08:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=77A3DFAE-D7E3-E4E0-4A7AB055696E2E0A http://www.progressivereform.org/CPRBlog.cfm?idBlog=77A3DFAE-D7E3-E4E0-4A7AB055696E2E0A Just as we predicted back in December, foods created with CRISPR technology (short for clustered regularly-interspaced short palindromic repeats) are entering the food supply beyond the reach of federal regulators. Last week, the U.S. Department of Agriculture (USDA) announced that it would not regulate white button mushrooms that scientists altered to stop them from browning. The agency's confirmation that it is unable to regulate CRISPR-modified foods confirms that the current statutory scheme for genetically modified foods is not sufficient. Fri, 22 Apr 2016 09:30:05 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4BFC9C67-C4D1-A5E1-763E2567DE7350E4 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4BFC9C67-C4D1-A5E1-763E2567DE7350E4 In our efforts to save endangered and threatened species, we need the type of systemic, nationwide approach envisioned by the framers of the Endangered Species Act, and we need fully funded agencies that are empowered to protect habitats and ecosystems, not just individual species. Thu, 21 Apr 2016 12:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3D1271FC-D15D-6152-91DCCD4339A460E3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3D1271FC-D15D-6152-91DCCD4339A460E3 Lisa Heinzerling, a Center for Progressive Reform Member Scholar and Georgetown University Professor of Law, published a piece this week on The Conversation that explores the ongoing political debate over environmental regulations. Thu, 21 Apr 2016 09:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=14C25C73-9F6E-BBA0-08B5E3DAB887E88F http://www.progressivereform.org/CPRBlog.cfm?idBlog=14C25C73-9F6E-BBA0-08B5E3DAB887E88F Center for Progressive Reform Member Scholar (and board member) Rob Glicksman is on Capitol Hill testifying before the House Oversight and Government Reform Committee's subcommittee on the Interior this afternoon at 2 pm ET. The hearing will focus on "barriers to delisting" of species under the Endangered Species Act. Wed, 20 Apr 2016 11:42:41 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=093A5C32-F249-2FAA-1EF1E444D3184D75 http://www.progressivereform.org/CPRBlog.cfm?idBlog=093A5C32-F249-2FAA-1EF1E444D3184D75 Several weeks ago, Sen. Elizabeth Warren delivered perhaps the most important speech on the U.S. regulatory system in recent memory at a forum on regulatory capture organized by the Administrative Conference of the United States. In it, she described how the regulatory system was not working for the people as it should be - or as Congress had intended. Instead, she described how corporate influence over the regulatory process has become so far-reaching and so overwhelming that it has become fundamentally "tilted" to generate results that favor corporate profit at the expense of crucial safeguards necessary for protecting people and the environment. Warren's speech was significant because it represents the most high-profile articulation to date of the progressive diagnosis of what ails the regulatory system and the necessary reform remedies. Tue, 19 Apr 2016 11:15:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AF8D059E-BAF8-EF0B-A00122A47D58F47E http://www.progressivereform.org/CPRBlog.cfm?idBlog=AF8D059E-BAF8-EF0B-A00122A47D58F47E The Chesapeake Bay Program recently released its latest estimate of nutrient and sediment pollution in the Bay watershed. The annual model run of the program's Watershed Model shows that the estimated nitrogen, phosphorus, and sediment loads decreased by three percent, three percent, and four percent, respectively, compared to 2014 levels. These are important improvements, but much work lies ahead to improve water quality in the Bay and boost the fisheries, wildlife, and recreational activities it supports. Tue, 19 Apr 2016 09:48:59 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D1A9E410-AB19-D98B-82A085F14B642E6E http://www.progressivereform.org/CPRBlog.cfm?idBlog=D1A9E410-AB19-D98B-82A085F14B642E6E Because of the greenhouse gases that humans have already released, we will have to address the effects of climate change that are already well underway. Mitigation efforts such as the Clean Power Plan are important to keep those effects to a minimum, but our regulatory agencies have an additional task when it comes to climate change: employing successful adaptation strategies. Mon, 18 Apr 2016 11:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=15CE870B-C71D-406D-45585FC705E2E634 http://www.progressivereform.org/CPRBlog.cfm?idBlog=15CE870B-C71D-406D-45585FC705E2E634 Center for Progressive Reform President Robert Verchick has an op-ed in The New Orleans Advocate this morning about Gulf Coast efforts to prepare for the effects of climate change that we're too late to prevent. A New Orleans resident himself, Verchick and his family suffered through Katrina, so he knows what he's talking about when he says that the Gulf Coast is "staring down the barrel of climate change." Fri, 15 Apr 2016 08:45:03 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=01610D2D-F9A9-05E0-1BB5C86ED0D149CA http://www.progressivereform.org/CPRBlog.cfm?idBlog=01610D2D-F9A9-05E0-1BB5C86ED0D149CA Justice Antonin Scalia was, as much as anything else, known for insisting that the text of a statute alone - not its purposes, not its legislative history - should serve as the basis for the courts' interpretation of the statute. Justice Scalia promoted canons of statutory construction - or at least what he deemed the valid ones - as a way of limiting the power of judges by setting rules for their interpretation of statutes. Yet he also warned, in a 1997 book, against "presumptions and rules of construction that load the dice for or against a particular result." He worried that such "dice-loading" rules might effect "a sheer judicial power-grab." It is striking, therefore, that in one of his last majority opinions for the Supreme Court, Justice Scalia went out of his way to create such an interpretive rule. Thu, 14 Apr 2016 11:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=ABB1139B-C53D-4785-3883A6461BCED86F http://www.progressivereform.org/CPRBlog.cfm?idBlog=ABB1139B-C53D-4785-3883A6461BCED86F Most Americans understand the importance of curbing greenhouse gas emissions to prevent a climate catastrophe in the future. But many communities are already feeling the effects of our warming planet. Impacts on the Gulf Coast are particularly challenging. In a new paper released today, the Center for Progressive Reform (CPR) highlights recommendations and best practices for protecting and empowering vulnerable communities as they adapt to climate change. The release comes ahead of an April 15 forum in New Orleans on risk reduction strategies for Louisiana coastal areas. Wed, 13 Apr 2016 10:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=73B6ECD0-A39D-B2EF-547D365A1F2B6992 http://www.progressivereform.org/CPRBlog.cfm?idBlog=73B6ECD0-A39D-B2EF-547D365A1F2B6992 Last month, the California Air Resources Board released a draft Aliso Canyon Methane Leak Climate Impacts Mitigation Program. The program comes in response to Gov. Jerry Brown's January 6 proclamation that Southern California Gas be held responsible for mitigating the estimated 100,000 tons of methane released from the gas storage facility at Porter Ranch. While this high-profile case is unique in both its global and local impacts, the response by California may nevertheless be illustrative of certain broader environmental enforcement trends. Mon, 11 Apr 2016 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6661D8A0-D419-6DB8-567B826043CC7CD6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6661D8A0-D419-6DB8-567B826043CC7CD6 Over the last few years, deregulatory advocates have pursued a well-trodden path for advancing their anti-safeguard agenda. Last week, the libertarian Mercatus Center did the latest trodding when it released a study that ranked all 50 states (and the District of Columbia) according to how "affected" they are by federal regulation. The usual gloss and mathiness were on full display, but as always, an indispensable guest was left off the invite list: regulatory benefits. Fri, 08 Apr 2016 12:45:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6ED96B2C-D5B2-8819-FC9BA79ED019ECFA http://www.progressivereform.org/CPRBlog.cfm?idBlog=6ED96B2C-D5B2-8819-FC9BA79ED019ECFA In an April 7 New York Times op-ed, CPR Member Scholar Rena Steinzor, Professor of Law at the University of Maryland Francis King Carey School of Law, explained the significance of Don Blankenship's conviction and sentence and what it portends for other top managers and CEOs. Fri, 08 Apr 2016 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=98F4EF19-95B3-85DF-F293BC7F377FDDB7 http://www.progressivereform.org/CPRBlog.cfm?idBlog=98F4EF19-95B3-85DF-F293BC7F377FDDB7 The recent tragedy involving toxic, lead-laced tap water in Flint, Michigan highlights the growing gulf between rich and poor, and majority and minority communities. In an ill-fated measure to save costs for the struggling city of Flint, officials stopped using Detroit's water supply system and switched to the Flint River. Although residents complained about the water's foul taste, odor, and color, officials assured them that the water was safe to drink. Later, it became clear that the polluted, corrosive river water leached lead from the city's water pipes, so that the water coming out of the residents' taps contained high levels of lead - a powerful neurotoxin for which there is no safe level of exposure. Children are particularly vulnerable to lead poisoning, which causes severe learning disabilities and irreversible neurological damage. Thu, 07 Apr 2016 10:57:21 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6770C1F3-9042-CCA8-4BD71A9529220E89 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6770C1F3-9042-CCA8-4BD71A9529220E89 Consumers, take note: Last week, Clean Production Action published a troubling new report, Buyer Beware: Toxic BPA and regrettable substitutes found in the linings of canned food, on the presence of toxic bisphenol-A (BPA) in canned foods. The report, co-written by Breast Cancer Fund, Campaign for Healthier Solutions, Ecology Center, and Mind the Store Campaign, found BPA in the lining of the majority of canned foods sold by major retailers across the United States and Canada. Wed, 06 Apr 2016 16:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=39B512CF-0424-752E-A56671788654C164 http://www.progressivereform.org/CPRBlog.cfm?idBlog=39B512CF-0424-752E-A56671788654C164 Steinzor: "Although Mr. Blankenship won't spend much time in jail, an outcome determined by a disgracefully weak law rather than the case against him, at least he will go down in the record books as the first CEO convicted and imprisoned for causing the death of his workers because he disdained the law. This case should send a shiver down the spine of every top manager who follows the approach described by one witness: 'Run, run, run until we get caught; when we get caught, then we will fix it.'" Wed, 06 Apr 2016 13:26:51 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3BF8A233-F909-29E4-1E9A40C5FEA5959C http://www.progressivereform.org/CPRBlog.cfm?idBlog=3BF8A233-F909-29E4-1E9A40C5FEA5959C Every once in a while, we get reminded of just how much damage the conservative Justices could wreak on environmental law. Last week, Justice Kennedy created shock waves with a casual comment during oral argument. In a case that seemed to involve only a technical issue about administrative procedure, he dropped the suggestion that the Clean Water Act just might be unconstitutionally vague. It didn't seem to faze him that such a ruling would wipe out a statute that has been on the books for over forty years and leave the nation with no protection against water pollution and wetlands destruction. And remember, this is the supposedly most "moderate" conservative Justice on the Court. Tue, 05 Apr 2016 16:08:38 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0E42F22C-B64D-AE72-D9F188728630A701 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0E42F22C-B64D-AE72-D9F188728630A701 EPA shouldn't have to jump through hoops to show that a chemical's potential harms are worth the costs of regulation. Instead, regulatory decisions should be based on health, safety and environmental risks - not complex calculations, subject to challenge from industry, about what it might cost to use the chemical more safely. Thu, 31 Mar 2016 16:30:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0D5F3C61-CAC2-86D0-8E1C4B043F0939F9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0D5F3C61-CAC2-86D0-8E1C4B043F0939F9 When it comes to public health, the environment, and social justice, Americans are facing a host of challenges that call out for comprehensive, national solutions. Whether it's climate change, threats to water resources like the Chesapeake Bay and the Great Lakes, or serious injuries and deaths in the workplace, how we respond as a nation has direct impacts on our everyday lives. Rena Steinzor, a Center for Progressive Reform Member Scholar and Professor of Law at the University of Maryland Carey School of Law, will join panelists in Philadelphia on April 5 to explore the role that regulations and agencies should play in our democracy. Thu, 31 Mar 2016 14:23:07 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=08FC6262-9857-9200-06A0432305BB3497 http://www.progressivereform.org/CPRBlog.cfm?idBlog=08FC6262-9857-9200-06A0432305BB3497 NEWS RELEASE: CPR Welcomes New Communications Director Today, the Center for Progressive Reform (CPR) announced that Brian Gumm has joined the organization as its communications director. Gumm will serve alongside the group's staff and Member Scholars in their efforts to protect our health, safety, and environment. Tue, 29 Mar 2016 15:59:09 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A56CC18B-D5DF-72F5-C55E33701BDA432E http://www.progressivereform.org/CPRBlog.cfm?idBlog=A56CC18B-D5DF-72F5-C55E33701BDA432E The Texas AG's office seems to do little else besides battle against EPA, and Texas Senator Ted Cruz is in the vanguard of anti-environmentalism. Yet even in Texas there are some rays of hope. While Texas is attacking the Clean Power Plan, the city of Houston is leading a coalition of cities defending it. Mon, 28 Mar 2016 11:49:48 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6778F604-02B3-4419-70A4524FB9E7147A http://www.progressivereform.org/CPRBlog.cfm?idBlog=6778F604-02B3-4419-70A4524FB9E7147A As spring rains approach, the need for more stringent stormwater controls comes into sharper focus. Rain is a life-giver, of course, but in our ever more paved environment, it's also a conveyance for water pollution. Stormwater runoff in urban areas travels across rooftops, roads, sidewalks and eventually into a municipal storm sewer system, all the while accumulating a cocktail of various pollutants that includes oil residue from roads, pesticides and excess fertilizer from lawns and farms, and more. . These pollutants flow into in local streams and have a direct - and sometimes severe - impact on the water quality and local aquatic ecosystems. Fri, 25 Mar 2016 08:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9C6BA721-B584-1198-5BF0C314D590C84E http://www.progressivereform.org/CPRBlog.cfm?idBlog=9C6BA721-B584-1198-5BF0C314D590C84E Decades in the making, OSHA's new silica rule will better protect millions of workers from a highly toxic, cancer-causing substance that has killed thousands while the rule slowly worked its way through the regulatory gauntlet, administration after administration. Today, in quarries, foundries, building sites, and kitchen rehab jobs across the country, workers can look forward to breathing cleaner air. Thu, 24 Mar 2016 14:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=73E3544F-D303-393D-A5CEEC8315846BB7 http://www.progressivereform.org/CPRBlog.cfm?idBlog=73E3544F-D303-393D-A5CEEC8315846BB7 NEWS RELEASE: New Manual Helps Workplace-Safety Activists Push for Criminal Charges in On-the-Job Tragedies Washington, DC ----- Every year, thousands of workers across the United States are killed on the job - 4,679 in 2014 alone. Thousands more are seriously injured. Many of these deaths and injuries are entirely preventable when employers put in place basic safety measures. Some even result from company policies and practices that encourage and reward behavior that creates unacceptably risky conditions. Thu, 24 Mar 2016 08:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=88C93924-CA8C-C504-8FC1E39EEE29DC08 http://www.progressivereform.org/CPRBlog.cfm?idBlog=88C93924-CA8C-C504-8FC1E39EEE29DC08 Earlier this week in Havana's Gran Teatro, President Obama urged Cubans in this new century to keep their eyes on the prize of "sustainable prosperity." His remarks focused on the foundational role of political freedom, but not before underlining the importance of environmental protection too. That's no surprise. Economic growth in Cuba will depend heavily on the natural systems that keep the island's 11 million people fed, sheltered, and buffered from storms. Indeed, the U.S. State Department's negotiations with Cuba stressed this very point... Wed, 23 Mar 2016 15:55:49 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7052AE10-9FEF-5E37-6C9EDBF92E6D8E07 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7052AE10-9FEF-5E37-6C9EDBF92E6D8E07 Partisan efforts in Congress to roll back health and safety rules are common fodder on this blog. But last week, we saw a new twist, with a high-level Obama Administration official giving cover to a right-wing attempt to weaken protections for hundreds of thousands of workers in the poultry industry. Tue, 22 Mar 2016 11:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0D36C5AC-E28D-57DC-92AED3A26C4A5899 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0D36C5AC-E28D-57DC-92AED3A26C4A5899 There was a surprise question about climate change at the last Republican debate. What was surprising wasn't the question itself. Instead, it was the source of the question: Tomas Regalado, the Republican mayor of Miami. It turns out that this wasn't a fluke. Regalado and the Republican mayor of Miami Beach have spoken out in an op-ed about climate change: "The overwhelming scientific consensus is that the rising sea levels are caused by the planet warming, that the burning of fossil fuels is driving this warming, and that we need to act quickly to avoid the worst impacts ahead. These are the facts. We shouldn't waste time debating them." Mon, 21 Mar 2016 11:09:24 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FF152867-A651-4B56-85BEE32CFA3A103B http://www.progressivereform.org/CPRBlog.cfm?idBlog=FF152867-A651-4B56-85BEE32CFA3A103B Recently, I have been noticing a number of connections between the environmental policies or issues that I've been studying and modern economic doctrine. I'm not sure if the number or strength of these connections are enough to claim that we're seeing a rise in "laissez faire environmentalism" in the Chesapeake Bay region, but the implications are interesting to consider nevertheless. Fri, 18 Mar 2016 12:54:33 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=685A33C5-0936-9756-B608D811E8A5DF41 http://www.progressivereform.org/CPRBlog.cfm?idBlog=685A33C5-0936-9756-B608D811E8A5DF41 Maryland's high court ruled last week in favor of the Maryland Department of the Environment (MDE) in a challenge by several advocacy groups against five municipal stormwater ("MS4") permits issued by MDE. While reading the lengthy opinion on my computer, I felt at times like a raving sports fan yelling at the TV in frustration. My frustration was borne not of the court's specific arguments, or even of concerns over any far-reaching legal implications of the decision. Rather, to understand why this decision has generated such frustration, it is important to understand the timing and context of this decision. Thu, 17 Mar 2016 10:47:51 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=305089F3-A967-9610-691BEDC9785ADE93 http://www.progressivereform.org/CPRBlog.cfm?idBlog=305089F3-A967-9610-691BEDC9785ADE93 Over the weekend, the White House Office of Management and Budget (OMB) released the final draft of its annual report on the costs and benefits of federal regulation, which purports to provide a reasonably complete picture of the total impact that federal regulations have on the U.S. economy. This year's final report finds that federal regulations generated total benefits in the range of $216 billion to $812 billion (in 2001 dollars; in 2010 dollars, the range recalculates to $261 billion to $981 billion) while imposing total costs in the range $57 billion to $85 billion (in 2001 dollars; in 2010 dollars, the range recalculates to $68 billion to $103 billion). According to the report, then, federal regulations make society better off, and significantly so, producing total net benefits in the range of $131 billion to $755 billion (in 2001 dollars; in 2010 dollars, the net benefits range recalculates to $158 billion to $913 billion). Tue, 15 Mar 2016 12:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A69B17D7-A82D-787B-6E2489138853A2B5 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A69B17D7-A82D-787B-6E2489138853A2B5 Later today, not one but two CPR Member Scholars will testify today before the House Judiciary Committee's Subcommittee on Regulatory Reform, Commercial and Antitrust Law. Emily Hammond and Richard J. Pierce both offer some perspective on the limits and scope of judicial deference to federal regulatory agencies. Pierce sketches out the long history of jurisprudence on the subject, noting that, "Until late in the Nineteenth century, courts could not and did not review the vast majority of agency actions. The Supreme Court held that courts lacked the power to review exercises of executive branch discretion. A court could review an action taken by the executive branch (or a refusal to act) only in the rare case in which a statute compelled an agency to act in a particular manner. In that situation, the court was simply requiring the agency to take a non-discretionary ministerial action." Tue, 15 Mar 2016 07:00:48 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C134B0CD-ADE6-1109-5D8231A45AB2AC85 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C134B0CD-ADE6-1109-5D8231A45AB2AC85 I was recently a panelist at a Senate workshop on regulatory capture sponsored by the Administrative Conference of the United States (ACUS). In an earlier post about this event, I wrote about the potential of enhanced transparency to reduce regulatory capture, which I discussed at the workshop. Conservative commentators at the workshop argued that agencies are captured by public interest groups as well as by regulated entities. They contended that Congress should thus pass the REINs Act to reduce capture from both types of regulatory stakeholders. Of course, their fears of public interest capture are greatly overblown, as the potential for these groups to capture agencies is far more hypothetical than real. But the real problem is that the REINS Act, if it became law, would increase regulatory capture, not decrease it. Mon, 14 Mar 2016 10:57:46 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=962E84F3-A9F3-3EA9-BEA5D2FC1972753A http://www.progressivereform.org/CPRBlog.cfm?idBlog=962E84F3-A9F3-3EA9-BEA5D2FC1972753A The subject of regulatory capture was back on Capital Hill last week as the result of a briefing sponsored by Administrative Conference of the United States (ACUS). In 2010, I testified concerning regulatory capture in a Senate hearing chaired by Senator Sheldon Whitehouse (D-RI), but in the midst of the broad-scale conservative assault on regulation, the issue hasn't gotten nearly the attention it deserves. That's unfortunate for a simple reason. As Rena Steinzor and I establish in our book, many aspects of the regulatory system are downright dysfunctional, and we identified regulatory capture as a significant source of this dysfunction. Fri, 11 Mar 2016 06:45:51 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F6F80B7B-0155-0B60-8B1BFFF2C9401310 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F6F80B7B-0155-0B60-8B1BFFF2C9401310 Many thought that the BP Oil Spill would lead to new environmental legislation, as happened after past environmental disasters. That didn't happen. But something else did happen: BP paid $24 billion in civil and criminal penalties. In an era where any effort at government regulation is immediately denounced as a dire threat to liberty, there was nary a peep out of Republican politicians about these massive penalties.Nor do I hear Trump, Cruz, or Rubio defending Volkswagen from penalties. The moral is that the public is much more united behind punishment for corporate wrongdoers than it is about new regulation. Thu, 10 Mar 2016 14:20:32 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D3BB2871-CBBC-CAB5-95912EC442D03E47 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D3BB2871-CBBC-CAB5-95912EC442D03E47 Recently I had the opportunity to spend an entire day at the University of Florida Department of Entomology - the same department where I obtained my M.S. more than 30 years ago. I gave a talk on the law and ecology of pesticides and pest management and met with graduate students and faculty. It was fascinating to hear about the innovative research being conducted related to ecologically based pest management and sustainable agriculture. The discussions that day provided concrete illustrations of some of the challenges of developing sound pesticide regulation that I have highlighted in my recent scholarship, particularly my recently published book chapter. Wed, 09 Mar 2016 08:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6C7E7A1B-DC94-638D-E43F64AD931001C2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6C7E7A1B-DC94-638D-E43F64AD931001C2 Since Justice Scalia's passing, the blogosphere has been abuzz with speculation about how the changed composition of the Court will affect environmental law. This post adds a little more to that speculation. My focus is not the Clean Power Plan litigation, which has (justifiably) gathered much of the attention, but instead the litigation over the joint EPA-Army Corps Clean Water Rule. And my prediction is a bit different from most predictions about the Clean Power Plan. Here, I predict, that changes in court composition probably won't matter much. Mon, 07 Mar 2016 11:06:29 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=324BBDFF-E8D8-7006-6C123D57FC46EFF0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=324BBDFF-E8D8-7006-6C123D57FC46EFF0 Chief Justice Roberts turned down a request this morning to stay EPA's mercury rule. Until the past month, this would have been completely un-noteworthy, because such a stay would have been unprecedented. But the Court's startling recent stay of the EPA Clean Power Plan suggested that the door might have been wide open. Fortunately, that doesn't seem to be true. Thu, 03 Mar 2016 14:19:06 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6B30FBDF-B9AE-1117-60AFD0B894266DF0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6B30FBDF-B9AE-1117-60AFD0B894266DF0 CPR Vice President Sid Shapiro is among the many distinguished panelists participating this monring in a forum called "Regulatory Capture in the 21st Century." The forum is hosted by the Administrative Conference of the United States (ACUS), an independent federal agency that works to provide Congress with advice on improving the administrative system. The event will feature remarks from Senators Sheldon Whitehouse (D-RI), Elizabeth Warren (D-MA), and Mike Lee (R-UT). Thu, 03 Mar 2016 07:05:21 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5BADD9F1-DEC1-33C5-2B11FB97EA239706 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5BADD9F1-DEC1-33C5-2B11FB97EA239706 Yesterday, the Republican members of the Senate Homeland Security and Government Affairs Committee (HSGAC) - the Senate committee with primary oversight jurisdiction over the regulatory system - published a report detailing their shock and dismay over a Wall Street Journal story alleging that the White House "may have inappropriately influenced" the Federal Communications Commission's (FCC) so-called "net neutrality" rule. In releasing the report, Committee Chairman Senator Ron Johnson (R-WI) could barely contain his contempt: "It is concerning that an independent agency like the FCC could be so unduly influenced by the White House, particularly on an issue that touches the lives of so many Americans and has such a significant impact on a critical sector of the United States economy. Wed, 02 Mar 2016 08:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=381E660C-938A-F78F-63C888D1C73CF5D0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=381E660C-938A-F78F-63C888D1C73CF5D0 The mysterious deaths of 13 bald eagles on Maryland's Eastern Shore last month captured headlines around the country. While a tragic story, it was also a reminder of just how far bald eagle populations and those of other birds of prey have recovered over the last several decades. From a population of fewer than 1,000 in 1963, almost as many bald eagles now soar in the skies over Maryland alone. The iconic bird's recovery is a case study in the value of regulating toxics in our environment. Wed, 02 Mar 2016 07:30:23 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0B08DB38-06A1-DCF2-D3C4A75EEA047BDA http://www.progressivereform.org/CPRBlog.cfm?idBlog=0B08DB38-06A1-DCF2-D3C4A75EEA047BDA "The Supreme Court's decision is a milestone victory for the restoration of the Chesapeake Bay and the thousands of local waters in the Bay watershed. Today's decision should at last put an end to any efforts to evade responsibility for reducing nutrient and sediment pollution. The Bay cleanup effort still has a very long way to go, with a lot of tough decisions and hard work ahead, but the Court's ruling should give hope to the millions of people in this region who have had to live with degraded and polluted waters for decades. Moreover, the decision is a clear affirmation of the plain meaning of the Clean Water Act and EPA's authority to enforce it. As the Farm Bureau has argued, it has nationwide implications." Mon, 29 Feb 2016 10:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C70063EE-CDF5-7C4B-EE155ADD2826CE11 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C70063EE-CDF5-7C4B-EE155ADD2826CE11 There's already been a lot written about how Justice Scalia's untimely death will affect pending cases, not to mention speculation about the possible nominees to replace him. Less attention has been given to the effect on the lower courts. Yet Justice Scalia's departure gives liberal judges in lower courts more freedom than they've had in the past. Here, I'm specifically thinking of the D.C. Circuit and the Ninth Circuit, which between them are the most important forums for environmental litigation. It now looks like it could be at least a year until a successor is named. The 4-4 split gives lower courts more scope to take the initiative. Thu, 25 Feb 2016 10:55:32 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FB6C00A7-049A-8C9C-FF43AFD0703A8BAD http://www.progressivereform.org/CPRBlog.cfm?idBlog=FB6C00A7-049A-8C9C-FF43AFD0703A8BAD The Occupational Safety and Health Administration (OSHA) has informally announced that it is unlikely to finalize its long-awaited rule to limit workers' exposure to respirable crystalline silica by the month's end, as the agency had expected. OSHA's deputy assistant secretary of labor for occupational safety and health, Jordan Barab, told Politico on Friday, Feb. 18, that he "can pretty much guarantee" the rule will be delayed, but he expects "it will be out soon." Wed, 24 Feb 2016 10:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9B7FADB2-DFAB-3672-EB7A308A751633AD http://www.progressivereform.org/CPRBlog.cfm?idBlog=9B7FADB2-DFAB-3672-EB7A308A751633AD Legislative committees in both the Maryland House and Senate are holding hearings this week on the Poultry Litter Management Act, a bill that has been attracting a lot of attention in Maryland and beyond. I have been asked to testify as part of a panel featuring representatives of the United States Geological Survey and the Chesapeake Bay Foundation. The focus of my testimony will be the problems posed by farm animal manure - in this case, poultry litter on Maryland's Eastern Shore. Tue, 23 Feb 2016 13:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6F95CBA8-BD22-2F1B-E77A7BB8ABFEAA83 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6F95CBA8-BD22-2F1B-E77A7BB8ABFEAA83 Justice Antonin Scalia's Supreme Court chair sits empty, draped in black wool to honor a man whose intellect and fire-breathing keyboard helped reshape the nation's political landscape. Depending on how things go, that chair could be empty for a while. Unlike more recent nominations to replace a Justice, a nomination from President Obama could reorient the Court away from its long-standing conservative tilt toward something more progressive or even merely moderate. In the current session alone, important cases involving affirmative action, abortion, birth control, and immigration hang in the balance. Mon, 22 Feb 2016 07:02:10 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=58933F9D-DB9B-BC4F-FE157B0E0041ACB1 http://www.progressivereform.org/CPRBlog.cfm?idBlog=58933F9D-DB9B-BC4F-FE157B0E0041ACB1 At a time when consumers are demanding greater transparency in the food system - and some food companies are delivering by means of genetically modified organism labeling and removal of artificial food dyes - a troubling North Carolina law that runs counter to that goal has recently gone into effect. The state's so-called "ag-gag" law prohibits whistleblowers from making audio or video recordings inside industrial agricultural facilities. Following the success of a similar suit in Idaho last year, consumer protection advocates and government watchdog groups have brought a constitutional challenge to the law in a North Carolina federal district court. Fri, 19 Feb 2016 11:59:38 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C8B93B2B-F25C-4CA5-4D6957AF6DF71A5C http://www.progressivereform.org/CPRBlog.cfm?idBlog=C8B93B2B-F25C-4CA5-4D6957AF6DF71A5C On May 12, 2009, the federal government finally got serious about protecting the Chesapeake Bay. That's when President Obama signed Executive Order 13508 on Chesapeake Bay Protection and Restoration, which declared that the federal government would put its shoulder into the multi-state effort to restore the Bay. Taking turns at a podium perched on a bluff overlooking the Potomac River, the Governors of Maryland and Virginia and the Mayor of Washington D.C. praised the President that day for ordering the U.S. Environmental Protection Agency (EPA) and other federal agencies to take on this new leadership role that would culminate in the Chesapeake Bay Total Maximum Daily Load (Bay TMDL) the following year. Thu, 18 Feb 2016 14:42:57 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9B10C742-F70B-C9F4-5514ABD1E6A2111A http://www.progressivereform.org/CPRBlog.cfm?idBlog=9B10C742-F70B-C9F4-5514ABD1E6A2111A Over the past three decades, Justice Antonin Scalia did much to shape environmental law, nearly always in a conservative direction. Because of the importance of his rulings, environmental lawyers and scholars are all familiar with his work. But for the benefit of others, I thought it might be helpful to summarize his major environmental decisions. The upshot was to restrict EPA's authority to interpret environmental statutes, make property rights a stronger bulwark against environmental protection, restrict the ability of environmental groups to go to court, and limit federal authority over rivers and wetlands. Tue, 16 Feb 2016 11:54:09 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2E086E44-ECAB-DC29-105388A5859E7BAA http://www.progressivereform.org/CPRBlog.cfm?idBlog=2E086E44-ECAB-DC29-105388A5859E7BAA In case you didn't get the memo: President Obama is entering the last year of his final term in office, so now we're all supposed to be panicking over a dreaded phenomenon known as "midnight regulations." According to legend, midnight rulemaking takes place when outgoing administrations rush out a bunch of regulations during their last few days in order to burnish their legacy or make concrete several of their policy priorities in ways that would be difficult for a successor - presumably from a different party - to undo. The legend further holds that because the rules are "rushed," they are somehow of inferior quality. Fri, 12 Feb 2016 14:33:25 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=65BC0DB8-FC67-0B40-D2C2234D4410D219 http://www.progressivereform.org/CPRBlog.cfm?idBlog=65BC0DB8-FC67-0B40-D2C2234D4410D219 Last month, Politico's Michael Grunwald published what I suspect is going to be a first draft of history's judgment of Barack Obama's presidency. He writes that "a review of his record shows that the Obama era has produced much more sweeping change than most of his supporters or detractors realize." Grunwald runs a long list of the President's achievements, including Obamacare, the automobile industry bailout, the stimulus bill that kept the economy from falling off of a cliff, an overhaul of the boondoggle that was the federal student loan program, rejection of the Keystone XL pipeline, serious (at last!) steps to combat climate change paving the way for an international agreement that could actually make a difference, an energy revolution that has significantly reduced U.S. reliance on dirty coal and foreign oil while boosting production and use of renewables, the end of "don't ask don't tell," the legalization of same-sex marriage, and much more. Thu, 11 Feb 2016 13:47:07 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=30949226-CEC6-D996-F6A0B7A7FD81A37A http://www.progressivereform.org/CPRBlog.cfm?idBlog=30949226-CEC6-D996-F6A0B7A7FD81A37A Wed, 10 Feb 2016 15:18:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0053C16B-DBB7-1EB1-27D8C09D839620B5 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0053C16B-DBB7-1EB1-27D8C09D839620B5 Wed, 10 Feb 2016 09:27:21 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F3BD3CD7-E2D8-D456-9E800B7679D9F2F8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F3BD3CD7-E2D8-D456-9E800B7679D9F2F8 Thu, 04 Feb 2016 08:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9C32CC53-0F6C-6A8C-BC8BDF3DA7494090 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9C32CC53-0F6C-6A8C-BC8BDF3DA7494090 Thu, 28 Jan 2016 12:14:26 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5C49E470-F0C3-485E-C94ECE40C22D02CE http://www.progressivereform.org/CPRBlog.cfm?idBlog=5C49E470-F0C3-485E-C94ECE40C22D02CE Wed, 20 Jan 2016 12:13:23 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C0437E77-F1AF-2FD4-E191D4A9446B4724 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C0437E77-F1AF-2FD4-E191D4A9446B4724 Wed, 13 Jan 2016 23:53:11 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=70CCD281-CC75-6B5D-944368EE4D843806 http://www.progressivereform.org/CPRBlog.cfm?idBlog=70CCD281-CC75-6B5D-944368EE4D843806 Wed, 13 Jan 2016 11:13:05 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=559DF7B9-EE79-BDB9-780B0CCE9E1494E3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=559DF7B9-EE79-BDB9-780B0CCE9E1494E3 Last September, the Environmental Integrity Project put a spotlight on the dramatic increase in the number of industrial scale poultry houses being established on the Delmarva Peninsula. In its report, More Phosphorus, Less Monitoring, the organization found that more than 200 new chicken houses had been permitted on the peninsula since November 2014, including 67 in just one Maryland county (Somerset County, on the state's lower Eastern Shore). Shortly thereafter the Maryland Clean Agriculture Coalition, supported by the Center for Progressive Reform and other allies, as well as other groups like the Center for a Livable Future at Johns Hopkins University, called on Maryland to issue a temporary moratorium on new chicken houses. The Delmarva Poultry Industry and its allies fired back, and for a few weeks the two sides sparred through the media over the call for a moratorium. While the two sides were presenting their cases last fall and into this winter, the Maryland Department of the Environment has sat largely silent on the issue. Meanwhile, the expansion continues unabated. Tue, 12 Jan 2016 08:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F874B7D4-E3E1-17E6-CF6C222F4EEB87B0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F874B7D4-E3E1-17E6-CF6C222F4EEB87B0 Here are seven of the most important developments affecting the environment. 2015 was a big year for agency regulations and international negotiations. In 2016, the main focal points will be the political process and the courts. Here are seven major things to watch for. The Presidential Election. The election will have huge consequences for the environment. A Republican President is almost sure to try to roll back most of the environmental initiatives of the Obama Administration, undoing all the progress that has been made on climate change and other issues - and we might also see efforts to undo earlier environmental legislation. The Senate. No one seems to think that control of the House of Representatives is at issue in this year's election, but control of the Senate is potentially in play. If Republicans win the Presidency and keep both houses of Congress, we're likely to see major efforts to undo earlier environmental laws. With a Democrat in the White House, Senate control would provide more leverage against a Republican House. Mon, 04 Jan 2016 12:18:14 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=88767917-01D2-AD01-EA2BACB8F50DAA19 http://www.progressivereform.org/CPRBlog.cfm?idBlog=88767917-01D2-AD01-EA2BACB8F50DAA19 As the year draws to a close and the New Year approaches, people all around the world will be contemplating what they can resolve to do better in 2017. This year, the U.S. Department of Labor (DOL) and U.S. Department of Justice (DOJ) seem to be celebrating the tradition as well. In a move akin to a "New Year's Resolution" to do better by workers, the two agencies have just announced that they will be expanding their "worker endangerment initiative" to bolster criminal prosecutions against employers responsible for endangering workers' health and safety. The new initiative is an encouraging step toward punishing employers who make decisions that put profits over people and toward deterring others from violating federal labor laws. But the initiative - while it's a beneficial supplement to the weak criminal penalties applicable to many labor violations - is also limited in scope and shouldn't be regarded as a comprehensive solution. The purpose of the DOL/DOJ worker endangerment initiative is to supplement the weak criminal penalty provisions found in three of our nation's labor laws - the Occupational Safety and Health Act (OSH Act), the Mine Safety and Health Act (Mine Act), and the Migrant and Seasonal Agricultural Worker Protection Act (MSPA). In essence, the initiative encourages federal prosecutors investigating potential criminal charges for labor law violations to look for possible violations of other federal criminal laws with stronger penalties that they can pursue. Tue, 22 Dec 2015 14:45:30 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F03FEDBE-D1D6-B43F-4D43DE3BF84F145F http://www.progressivereform.org/CPRBlog.cfm?idBlog=F03FEDBE-D1D6-B43F-4D43DE3BF84F145F As we seek to understand and assess the Paris Agreement over the coming months and years, we will continue to contemplate the critical underlying political and ethical question: who should be responsible? And to what degree should that responsibility take the form of direct action versus providing support in the form of financing, technology transfer, and capacity-building? As my Center for Progressive Reform colleague Noah Sachs has observed, the principle of common but differentiated responsibility (CBDR) has been a consistent theme in all of the climate negotiations. But, what CBDR means - why and when responsibilities should be common, and why and when they should be differentiated -- is continually contested and continually shifting. I briefly highlight the allocation of responsibility in the Paris Agreement. Drawing upon two recent articles on adaptation justice, I then provide a short roadmap to the theories of justice at play in the international negotiations, theories relevant to determining responsibility for both mitigation and adaptation. Mon, 21 Dec 2015 16:40:35 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C0DE1418-A53E-4A33-0E11F57F187F575B http://www.progressivereform.org/CPRBlog.cfm?idBlog=C0DE1418-A53E-4A33-0E11F57F187F575B This afternoon, the U.S. Department of Labor announced that it was sending its final version of a long-awaited rule on silica dust in the workplace to the White House Office of Information and Regulatory Affairs (OIRA) for final review. CPR Executive Director Matthew Shudtz responded to the news with the following statement: Workers across the United States have been waiting for this day for a long time. But don't overlook the fact that this announcement simply marks a procedural accomplishment in a decades-long administrative process. This rule has been to OIRA before, and the last time it sat with the White House bean counters for two and a half years. By Executive Order, this review should be complete in a matter of weeks. That's what millions of silica-exposed workers expect and what the White House needs to deliver. We won't know the full details of what's in the final rule until the White House approves it for publication. Regardless, the most important thing to focus on now is what OSHA and its state-plan partners do next. Strong enforcement of the new rules is the only way to ensure that workers benefit from their requirements. OSHA is primarily an enforcement agency after all, so now it's time for the agency to do what it does best. Mon, 21 Dec 2015 15:35:31 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BAAC6734-0238-1E91-C4A57E02F0963FE5 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BAAC6734-0238-1E91-C4A57E02F0963FE5 A few months ago, I recounted the recent history of budget cuts to Maryland environmental agencies and their effect on the state of environmental inspections and enforcement in the state over the last two decades. Fortunately, it appears that an opportunity to change this situation has presented itself to policymakers in Annapolis. Recently, at the annual November meeting of the legislative Spending Affordability Committee, key lawmakers from the budget committees and House and Senate Leadership heard from the top legislative budget analysts that the state's fiscal picture finally looks "good." In fact, for the first time in a decade the state general fund budget is forecasted to be in a structural surplus, not only for the current fiscal year (2016), but the following year (2017) as well. Then this week, we received more good news about the state's budget. Revenue estimates were revised up again, not only providing a greater cushion for the current and upcoming fiscal year, but extending the estimated structural balance out another year to fiscal 2018. That is great news. Fri, 18 Dec 2015 13:19:59 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1F32B8B0-F09E-0F62-F6CF601F4A5D37FB http://www.progressivereform.org/CPRBlog.cfm?idBlog=1F32B8B0-F09E-0F62-F6CF601F4A5D37FB This week appears to mark the end of an extraordinary period in the history of the White House Office of Information and Regulatory Affairs (OIRA), the shadowy bureau charged with reviewing and revising pending agency rules, which too often ensures they are not overly inconvenient for affected industries. For the last month and a half, a Mos Eisley-esque melange of characters has streamed through the front doors to lobby OIRA's gang of economists and political operatives over a pending rule that would establish the Food and Drug Administration's (FDA) authority to regulate non-traditional tobacco products including e-cigarettes and flavored cigars the same way it does with more traditional tobacco products, such as cigarettes and smokeless tobacco. OIRA's review of the rule, which comes at the end of a rulemaking process that has already stretched more than five years, provides these groups with one last chance to influence the substance of the rule before the FDA is able to formally publish the final version and begin implementing its provisions. Wed, 16 Dec 2015 13:40:26 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B8EEA903-97B1-58DD-9D1FB12906CB968D http://www.progressivereform.org/CPRBlog.cfm?idBlog=B8EEA903-97B1-58DD-9D1FB12906CB968D If we're serious about keeping warming "well below" 2°C, geoengineering may be necessary. The Paris agreement establishes an aspirational goal of holding climate change to 1.5°C, with a firmer goal of holding the global temperature decrease "well below" 2°C. As a practical matter, the 1.5°C goal almost certainly would require geoengineering, such as injecting aerosols into the stratosphere or solar mirrors. Even getting well below 2°C is likely to require steps of that kind or a technological breakthrough for another kind of geoengineering, removing CO2 from the atmosphere. None of this has to happen soon, but sometime between now and the end of the century, something along these lines would probably be required. Tue, 15 Dec 2015 13:15:43 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=84839B48-962F-C674-273D02FF1287BBEB http://www.progressivereform.org/CPRBlog.cfm?idBlog=84839B48-962F-C674-273D02FF1287BBEB In the latest draft treaty text from Thursday evening in Paris two contentious issues seem to be resolved: how often the agreement will be reviewed after it is adopted ("stocktaking") and whether the reviews should involve ever-more-stringent commitments by the parties ("ratcheting"). The background here is that the greenhouse gas reduction commitments made so far by 185 countries are voluntary, and they have varying levels of ambition. Most countries committed to fulfill their promised reductions by 2030, but some countries, including the United States, used a 2025 target year (the U.S. committed to a 26-28% reduction below 2005 levels). There is no enforcement mechanism for these commitments - no sheriff to monitor compliance and no court to punish the laggards. Thu, 10 Dec 2015 17:22:08 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8BD58DDF-FF38-4800-74519555FBB777A5 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8BD58DDF-FF38-4800-74519555FBB777A5 This morning, CPR President and Loyola University, New Orleans, Law Professor Robert R.M. Verchick testifies at a hearing convened by the Senate Budget Committee to examine a dangerous regulatory policy proposal known as "regulatory budgeting." As he explains in his testimony, regulatory budgeting represents a stark departure from the traditional focus of regulatory policy discussions, which have long been concerned with improving the effectiveness - or quality - of regulatory decision-making. Regulatory budgeting, by contrast, makes the total number - or quantity - of regulations the primary focus, relegating concerns of individual regulatory quality to a matter of only secondary importance. Regulatory budgeting seeks to impose an arbitrary cap on total regulatory costs. According to one version, agencies would get an annual regulatory budget - much like their appropriations budget - which would constrain how many new regulations the agency could implement during the covered time period. Agencies could seek to exceed that budget, but they would need to first remove existing regulations that impose a cost that is greater than or equal to the new regulation. A second version would simply require agencies to remove existing regulations any time they wish to institute a new one - what many have referred to as a "one in, one out" proposition. Wed, 09 Dec 2015 10:30:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=267889ED-09E4-E5D1-81E1C5B0B7046635 http://www.progressivereform.org/CPRBlog.cfm?idBlog=267889ED-09E4-E5D1-81E1C5B0B7046635 Here at the UN climate summit is Paris, negotiators are hashing out the new meaning of an old term: common but differentiated responsibility (CBDR). CBDR has been a bedrock principle of climate negotiations since 1992. It was the basis for dividing the world into two camps: 37 developed nations that had binding greenhouse gas emissions reductions targets, and the rest of the world. There are many definitions for CBDR, but the best one I've heard was given by former Undersecretary of State Tim Wirth before a skeptical Senate committee. Defending the fairness of CBDR, he said that it means all nations are in the same boat, but some nations like the United States have to do more work than others to pull the oars. The Paris agreement is based on voluntary climate commitments by every party, so if everyone is pulling an oar, to use Wirth's metaphor, is there any continuing role for CBDR? The U.S. position in Paris is pretty clear: CBDR is old news. As lead U.S. negotiator Todd Stern put it, "What is expected from countries should be differentiated to capture their varying circumstances and capabilities today and in the future, not based on outdated categories created in 1992." Other countries, led by India, are just as adamant that the Paris agreement must continue to be based on CDBR as understood in the 1990s. According to Indian negotiator Ajay Mathur, "the differentiation was done for a very specific purpose. It was to make differentiation between those who are responsible for historic emissions and those who are not. That calculus and those numbers haven't really changed. We don't see why that concept should be swept under the carpet." Wed, 09 Dec 2015 09:14:54 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=46F28765-B8CC-F186-EC1CE82FA534C410 http://www.progressivereform.org/CPRBlog.cfm?idBlog=46F28765-B8CC-F186-EC1CE82FA534C410 If you've come across one of the ads, newspaper stories, or opinion pieces from Chuck Norris in the past week warning you about frankenfish, you can thank the FDA. In mid-November, the FDA made history by approving the first genetically engineered (GE) animal for human consumption, Atlantic salmon from the company AquaBounty. Not only has the approval process failed to win over skeptics, exposing the weaknesses in the current legal regime that governs plants and animals developed through biotechnology, it raises important questions about the future of food oversight. With emerging genetic technologies on the horizon, can federal agencies continue to exert control over approving genetically altered plants and animals under a legal scheme that never imagined the technologically advanced foods of today and tomorrow? Mon, 07 Dec 2015 12:56:40 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F221B624-0B10-0E8F-8F30A8092EB8E382 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F221B624-0B10-0E8F-8F30A8092EB8E382 Politicians are famous for reneging on, or conveniently ignoring, campaign pledges and other promises. In some cases, politicians put themselves in untenable positions, such as when they offer conflicting promises to different interest groups. This is when it becomes easy to see what an elected official's true priorities are. Governor Hogan proclaimed that he would be "the best environmental governor that's ever served." Of course, he also campaigned for "regulatory reform" in Maryland. The Governor established a Regulatory Reform Commission by executive order in July, stacking it with an almost all-industry roster of members, and charging it with "fixing our burdensome, antiquated, broken, and out-of-control regulatory environment in Maryland." This week, we got to see the results of the commission's work, and the biggest victim was the environment. Of the 29 specific regulations or regulatory chapters targeted by the commission, all but 10 were Maryland Department of the Environment (MDE) regulations. It's not as if "cutting red tape," or streamlining administrative processes necessarily means weakening standards designed to protect public health or the environment. There's no reason that the commission needed to focus on rolling back environmental protections to achieve its stated objectives. But that's what it decided to do. Fri, 04 Dec 2015 15:27:32 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=52C809B2-E49B-77F6-FECB81D9996825F1 http://www.progressivereform.org/CPRBlog.cfm?idBlog=52C809B2-E49B-77F6-FECB81D9996825F1 Justice was done today by a hard-working jury in West Virginia that convicted Don Blankenship of conspiracy to obstruct federal mine safety rules. This conspiracy was the primary cause of an enormous explosion that killed 29 men in the worst mine disaster in 40 years. Although the jury was not presented with the question of whether Blankenship was directly responsible for the explosion, it did decide that he played Russian roulette with miners' lives. By underfunding efforts to comply with and harassing employees to ignore safety rules so they could "dig coal" faster, and threatening managers with dismissal if they worked to solve ventilation and other problems at the mine, Blankenship made an already hazardous workplace into a horror show that made men fear for their lives every time they journeyed thousands of feet underground. Defense counsel will undoubtedly make much of the jury's decision not to convict Blankenship of lying to the government, but those two counts were relatively minor. The first count was the heart of the case. We can only hope that after the inevitable appeals, Don Blankenship gets the prison time he so richly deserves. Thu, 03 Dec 2015 12:51:10 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=19ACC8F6-954D-56D3-41C84789D108940C http://www.progressivereform.org/CPRBlog.cfm?idBlog=19ACC8F6-954D-56D3-41C84789D108940C In a post last week, I noted that, over the last year, the Obama Administration has finalized all or part of several of the 13 regulatory actions highlighted in a 2014 Center for Progressive Reform report challenging the President to focus renewed energy during the remainder of his term on securing critical new protections for people and the environment. But the President's to-do list isn't finished, and for the remaining regulatory actions on the list, progress has been modest or, in some cases, apparently non-existent. Each of these regulatory actions, if completed, would likewise contribute to President Obama's increasingly impressive body of work on public safeguards, which when taken as a whole is making our air and water healthier, our homes and workplaces safer, and our environment better protected against irreversible degradation. In contrast, to leave this work unfinished would be - to borrow a sports cliche - the equivalent of leaving points out on the field. Wed, 02 Dec 2015 13:36:47 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E7D30203-E566-FF30-559B581F8E909569 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E7D30203-E566-FF30-559B581F8E909569 In August I commemorated the anniversary of Hurricane Katrina by pedaling along the self-guided "Levee Disaster Bike Tour." I began beneath the muscular oaks along New Orleans' Bayou St. John and threaded my way around potholes and waterfowl to pay my respects at three prominent levee-breach sites. The ride gave me a chance to reflect on many problems that my adopted hometown of New Orleans faces, as well as countless opportunities for improving the policies that will take advantage of my neighbors' incredible resilience and keep us heading toward a more just and sustainable future. Tue, 01 Dec 2015 10:25:29 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AD7BB8ED-E43A-7ADE-B999F5933CAD8B4E http://www.progressivereform.org/CPRBlog.cfm?idBlog=AD7BB8ED-E43A-7ADE-B999F5933CAD8B4E From the moment they secured majorities in both chambers, congressional Republicans have made no secret of their intention to launch an all-out, guerilla warfare-style campaign against the federal government - and even the very notion of governance itself. Accordingly, they have pursued a strategy of salt-the-earth sabotage designed to spread like a communicable disease the dysfunction that has long characterized the legislative branch to the executive branch. Given the unrepentant nihilism, many political observers were quick to pen their epitaphs for the Obama Administration after the 2014 mid-term elections, opining that little progress would be made during the final two years in office, particularly where public safeguards and environmental protections were concerned. But something funny has happened over the last year. To the dismay of congressional Republicans and their corporate benefactors, the Obama Administration has had one of the most productive years of any president in recent memory, at least on the regulatory front, securing critical new safeguards for people and the environment that will continue to deliver such benefits as cleaner air and safer food for decades to come. Tue, 24 Nov 2015 14:35:41 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4DF1778A-A27E-D802-54387CEAA2A6641E http://www.progressivereform.org/CPRBlog.cfm?idBlog=4DF1778A-A27E-D802-54387CEAA2A6641E Late last week, the White House released its fall 2015 Unified Agenda - the semi-annual report on regulations under development or review by each federal agency. As usual, and therefore, of little surprise, this latest agenda spells delay for a laundry list of critical safeguards at several agencies. According to CPR senior analyst James Goodwin's review of the regulatory agendas for the Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), and several other agencies, several new protections will be delayed anywhere from two months to over a year. A look at the Department of Labor's regulatory agenda also signals extensive delays for some long-anticipated worker protections. Here is the status of rules under development at DOL classified as "major" or "economically significant" rules: Mon, 23 Nov 2015 15:44:07 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1CE45DB3-EE43-8CA7-9A13F9484D9AC40C http://www.progressivereform.org/CPRBlog.cfm?idBlog=1CE45DB3-EE43-8CA7-9A13F9484D9AC40C Opponents of safeguards are fond of decrying what they claim is a regulatory system out of control, churning out rules at a break-neck pace. It's not difficult to refute this claim when the president releases the twice-annual regulatory agenda, which spells out all the active rulemakings that are currently pending and the expected timetables for making progress on those rules that agencies expect to make over the next 12 months. Sure enough, time and time again the semiannual regulatory agenda demonstrate that most facets of the regulatory system are moving along at a snail's pace, the victims of politics, under-funded agencies, and a rulemaking process that favors industry. By comparing the expected timetables in this regulatory agenda against those from the most recent one in Spring 2015, one can see how the Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), and other agencies are falling further and further behind on completing crucial new safeguards. In some cases, the rules have been the subject of new delays over the past several regulatory agendas. Fri, 20 Nov 2015 15:15:45 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8162045C-C31B-8F55-19C95DDEC5B35C7E http://www.progressivereform.org/CPRBlog.cfm?idBlog=8162045C-C31B-8F55-19C95DDEC5B35C7E Last week the Maryland Court of Appeals heard several hours of oral argument in back to back (to back) cases regarding whether five different municipal stormwater ("MS4") permits issued by the Maryland Department of the Environment (MDE) complied with the federal Clean Water Act and state water pollution laws. Although divided into separate cases due to their unique procedural histories, the three cases were consolidated into one marathon oral argument due to the substantial overlap of the issues involved. The legal arguments have changed significantly since the first motions and petitions were filed several years ago, with some of the most ambitious legal theories having fallen away. What remains in dispute in these cases are largely procedural, though still crucial, issues regarding how to structure the permits so as to ensure that the permits are enforceable and that the counties are accountable to the public. Basically, the cases boil down to a total and justifiable lack of trust in MDE and the counties to get the job done. In fairness to MDE, it must be noted that the permits contain some very ambitious and laudable goals, which represent some of the most stringent MS4 permit terms in the country. The issue is that neither the counties, nor MDE has come close to living up to the promise of these permits. Wed, 18 Nov 2015 07:35:06 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EBDE2064-CA2A-8C40-85F87F3EED63BD0B http://www.progressivereform.org/CPRBlog.cfm?idBlog=EBDE2064-CA2A-8C40-85F87F3EED63BD0B In an op-ed for The Hill, CPR Member Scholar Joel Mintz takes a look at the Trans-Pacific Partnership (TPP), and concludes that it's insufficiently protective of the environment, the Administration's assertions notwithstanding. In his piece, he notes that the TPP "contains no mention whatsoever of what is widely seen as the most pressing threat to the global environment: disruption of the earth's climate from the release of greenhouse gases." Indeed, he notes, the TPP could encourage more fracking, thus contributing to greenhouse gas emissions. He goes on to write, The most potentially damaging threat posed to U.S. environmental laws by the TPP, however, stems from the agreement's mechanism for the settlement of inter-party disputes: the Investor State Dispute Resolution system (ISDS). Tue, 17 Nov 2015 06:35:22 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CBB1675B-C4D4-0C2A-C4F565145C96C7A0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CBB1675B-C4D4-0C2A-C4F565145C96C7A0 A startling new report by Oxfam America reveals just how dangerous it is to work inside a poultry processing plant. The report is packed full of alarming statistics and heart-breaking personal stories from brave workers, exposing an industry that fails to protect workers from well-known hazards and that discourages workers from reporting injuries when they occur. Despite the underreporting of injuries and illnesses, the poultry industry's safety record is dismal. According to the Bureau of Labor Statistics, the industry had 4.5 total recordable cases per 100,000 full-time workers in 2013, compared to the national average for private industry of 3.3 total recordable cases. Among the common injuries in the industry, poultry workers suffer a high incidence of musculoskeletal disorders (MSDs), like carpal tunnel syndrome and shoulder injuries, from repetitive and forceful twisting, cutting, and chopping movements. Tue, 10 Nov 2015 12:53:42 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7951843C-BBF7-8435-39352CA1EA0B5500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7951843C-BBF7-8435-39352CA1EA0B5500 It's a staple of the right-wing assault on government that "bloated" government programs, like those intended to protect the environment, are a burden to taxpayers. In my home state of Maryland, the numbers demonstrate otherwise. The percentage of taxpayer dollars spent by the Maryland Department of the Environment (MDE) is tiny and getting tinier. In 2014, less than one-quarter of 1 percent of the state's general funds were expended by MDE, a 40-percent reduction in this share since 2004. In fact, MDE's general fund budget actually shrank between 2004 and 2014 - not just in inflation-adjusted terms, but in absolute terms - even as the state budget increased by more than 60 percent. That's not to suggest that the state abandoned environmental programs. Over this same period, Maryland created several major new revenue streams, including a Chesapeake Bay Restoration Fund, the Chesapeake and Atlantic Coastal Bays 2010 Trust Fund, and the local Watershed Protection and Restoration Funds, which provide hundreds of millions of dollars annually to restore the Chesapeake Bay and other waters of the state. But those funds don't conduct the sort of regulatory enforcement that MDE is charged with; they're focused instead mostly on capital projects. Clearly, policymakers in Maryland are interested in funding such capital projects, but appear willing to neglect the need for scientists, engineers, inspectors, and other officials charged with implementing state and federal environmental laws. Mon, 19 Oct 2015 12:37:39 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=075FB932-A888-1C49-13B528C17CE0FD73 http://www.progressivereform.org/CPRBlog.cfm?idBlog=075FB932-A888-1C49-13B528C17CE0FD73 Last month, the Environmental Protection Agency finalized a long overdue rule that was designed, according to EPA's description, to move the agency "into the 21st Century." Since many of the rules' provisions still will not be in effect more than two decades after the turn of the century, this rulemaking plays right into the hands of those who insist that the federal government cannot work efficiently - ironic, because efficiency is the very purpose of the eReporting rule. In this case, the absurdly slow pace of the rulemaking process and the final rule's protracted implementation schedule also serves the critics' agenda. Even after more than a decade in the making, the final rule hampers EPA's ability to shine a light on the problem of underreporting of water pollution in the United States. The National Pollutant Discharge Elimination System (NPDES) has long been the centerpiece of EPA efforts to implement the Clean Water Act. The success of the NPDES regime is largely attributable to the requirement that large "point sources" of pollution monitor their effluent discharge and provide publicly available reports on this pollution and any violations of their permits. This simple and transparent regulatory system provides a strong incentive for facilities to reduce pollution on their own, inviting legal action by EPA, the states, and concerned citizens for those who do not. Unfortunately, several decades into the digital age, many NPDES regulated point sources are still submitting mountains of paper work that rarely see the light of day, rather than easily obtainable, downloadable, and usable electronic data. Thu, 15 Oct 2015 07:26:18 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2E524611-B969-BC50-5D4D80F7518B0BA2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2E524611-B969-BC50-5D4D80F7518B0BA2 Last week, the United States Court of Appeals for the Sixth Circuit issued a nationwide stay of implementation of the new Army Corps/EPA Clean Water Rule. This sounds like a very big deal, and the state plaintiffs who won the stay will no doubt describe this as a major victory. Those proclamations will conceal, however, a few layers of complexity and irony. The legal basis for the ruling is an administrative law principle known as the logical outgrowth rule. Under this principle, a final rule can be different from a proposed rule, but it still must be a logical outgrowth of that proposed rule; it cannot be something completely new. That principle flows from the basic Administrative Procedure Act requirement for notice and an opportunity to comment. Neither is present when an agency's final rule does something no one reasonably could have expected, and upon which no one would have thought to comment. Wed, 14 Oct 2015 12:28:53 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=05A542F7-9C24-F5AC-09D43E3A4CD5F77E http://www.progressivereform.org/CPRBlog.cfm?idBlog=05A542F7-9C24-F5AC-09D43E3A4CD5F77E Courtesy of the New York Times, here's a bit of reporting that is emblematic of the way the press has covered the Volkswagen emissions-cheating scandal: Volkswagen said on Tuesday that the scandal would cut deeply into this year's profit. And the company's shares plunged again, ending the day 35 percent below the closing price on Friday, before news of the diesel deception broke. As a result, the company's stock market value has declined about €25 billion in two days of trading. The media have covered the VW story with great vigor, to my ear, more even than the GM ignition scandal that claimed more than 120 lives - the number that GM so acknowledges. But most of the VW coverage is about money, not health and not the environment, even though both are clearly in play. Fri, 09 Oct 2015 11:35:26 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=02473AAB-E967-042C-660887E11956B225 http://www.progressivereform.org/CPRBlog.cfm?idBlog=02473AAB-E967-042C-660887E11956B225 Modern-day snake oil peddlers may have found a way to keep consumers quiet about their ineffective products: non-disparagement clauses, also known as gag clauses. These clauses, slipped into the fine print of form contracts, can restrict a consumer's ability to post negative reviews of a product online. Non-disparagement clauses, which can vary in scope, generally prevent consumers from publicizing negative reviews of a product or company. This restriction includes comments made on online forums like Yelp or even complaints to the Better Business Bureau. When a consumer violates the gag clause, the company often will enact punitive measures, like charging the consumer a financial penalty. As long as companies can get away with including hidden terms like non-disparagement clauses in their contracts, consumers will not be operating in a fair marketplace. Fortunately, the federal government has demonstrated its willingness to step in to protect consumers against non-disparagement clauses and more. Thu, 08 Oct 2015 13:19:14 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D27B36A3-FC57-33F8-787BC2671AA06C65 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D27B36A3-FC57-33F8-787BC2671AA06C65 Last week, the U.S. Environmental Protection Agency (EPA) finalized new National Ambient Air Quality Standards (NAAQS) for ozone pursuant to the federal Clean Air Act. See 42 U.S.C. s. 7409. The new regulation reduces both the primary and secondary NAAQS for ozone from 0.075 to 0.070 parts per million (ppm) (or from 75 to 70 parts per billion) averaged over eight hours in order to better protect human health, welfare, and the environment. The new regulation has not yet been published in the Federal Register, but it is available from the EPA. NAAQS are one of the Clean Air Act's primary mechanisms for protecting human health and the environment from air pollution. Such protections begin with the EPA Administrator designating criteria pollutants - pollutants that, when emitted into the air, "cause or contribute to air pollution which may reasonably be anticipated to endanger public health or welfare," that come from numerous or diverse sources, and for which the Administrator expects to issue air quality criteria. 42 U.S.C. s. 7408(a)(1). Ozone has been a criteria pollutant under the Clean Air Act since the beginning of the 1970 Act's implementation. Wed, 07 Oct 2015 15:13:05 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A3109356-0346-E578-84667ECF494B62D3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A3109356-0346-E578-84667ECF494B62D3 The resignation of House Speaker John Boehner and the VW diesel car scandal -- two rather extraordinary events -- might not initially appear to be related, but there is a connection. The most conservative members of the Republican caucus celebrated Representative Boehner's resignation because they felt he did not fight hard enough to shrink the size of the federal government through more aggressive tactics, like government shutdowns. Although one of government's most important functions is to deter behavior such as that of VW, the radical Republicans would organize American society using only markets, not government. The difficulty with this stance is that corporations "cheating" consumers is an unavoidable aspect of capitalistic markets, making government regulation a necessity. Tue, 06 Oct 2015 12:25:02 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=698DEB1A-BA45-EA82-03B7C0CFE02A8453 http://www.progressivereform.org/CPRBlog.cfm?idBlog=698DEB1A-BA45-EA82-03B7C0CFE02A8453 Consistent with his ongoing efforts to distinguish himself among the Republican presidential candidates as a serious "policy wonk," Jeb Bush, "rolled out" his "regulatory reform" plan last week. The sad truth, though, is that the plan contains little of what might be considered sober or intellectually rigorous. Rather, it is simply a mishmash of warmed over ideas from candidate Mitt Romney's 2012 regulatory reform plan and from the various antiregulatory bills that have been festering in Congress the last several years, all served on a wilted bed of misleading data, astounding leaps of logic, and outright falsehoods. Mon, 05 Oct 2015 15:07:09 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3BDAAC2A-A712-EF15-F9D8F8D050D4E909 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3BDAAC2A-A712-EF15-F9D8F8D050D4E909 The new primary ozone standard of 70 parts per billion (ppb) is definitely a step in the right direction, but it has taken EPA far to long too make this much-needed change. We should not forget, however, that EPA Administrator Lisa Jackson sent a proposed standard of 65 ppb to the White House in August 2011, but was told explicitly by President Obama to withdraw it because the White House economists thought it would be too costly for business, despite the fact that this delay came at the expense of the health of vulnerable Americans. Thu, 01 Oct 2015 13:31:43 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6A719871-D497-0F3B-6E5DF6D310C66154 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6A719871-D497-0F3B-6E5DF6D310C66154 Two of the most important aspects of the Clean Power Plan (CPP) are the flexibility afforded states as they design compliance strategies and the plan's openness to all energy resources. A state can satisfy its emission-reduction targets through the use of cleaner or more efficient coal-fired generation, natural gas or nuclear power as well as through increased use of renewable resources and energy efficiency. Regardless of this flexibility and openness, investor-owned utilities (IOUs), which have dominated the electricity market for more than a century, tend to resist the imposition of additional environmental regulations. Some resistance is predictable as utilities have sunk trillions of dollars of investments into the construction of generation, transportation and distribution networks. While this resistance may be understandable, there are two significant rebuttal arguments to it. First, utilities have demonstrated remarkable resilience, particularly over the last three or more decades, to dramatic challenges to the traditional electricity industry. Second, public policy and state regulation have, for almost as long, promoted a clean energy economy. The CPP continues developing that clean economy and utilities have a role to play in a cleaner energy future. Let's look at both of these points more closely. Thu, 01 Oct 2015 12:25:13 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=681226F0-01BE-4D13-B9870E9A4EFCFD7A http://www.progressivereform.org/CPRBlog.cfm?idBlog=681226F0-01BE-4D13-B9870E9A4EFCFD7A Lawrence Daquan "Day" Davis, 21, died tragically on his first day of work at his first job, as a "temp worker" at a Bacardi bottling facility in Jacksonville, Florida. He began his shift within 15 minutes of arriving at the facility, after completing some paperwork and watching a very brief safety video. Although working in a bottling facility is a dangerous job, Davis and his coworkers received no real training about the potential hazards or proper safety procedures. Within hours, Davis was asked to help clean up some broken bottles caused by a machine malfunction. While he was under the machine picking up the glass, the equipment was turned back on, and he was crushed to death. Davis' story is a poignant example of an eager and hard-working individual killed on-the-job because no one cared to train him, despite legal requirements to do so, before placing him in harm's way. This troubling reality is illustrated in a new, eye-opening documentary, A Day's Work, which shares Davis' story and the shocking practices of the temp industry that have caused his and so many others' untimely deaths. Mon, 28 Sep 2015 13:18:11 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CF6425D2-9380-E667-63E3D025A4852C53 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CF6425D2-9380-E667-63E3D025A4852C53 Republican presidential candidate Jeb Bush released a plan meant to make it harder for federal agencies to make rules that protect public health and the environment. That might help some big corporations. But it makes everyday Americans much less safe. The idea is to jam up the federal rule making process with so many requirements that hardly anything important would get done. Safeguards that keep the air clear, the water clean, and the workplace safe would be put on the back burner. Bush's plan would empower congressional members who do not believe in climate change to stall rules crafted by scientific experts in response to statutes that Congress has already passed, like the Clean Water and Air Acts. New rules meant to prevent another Wall Street meltdown would also be at risk. Tue, 22 Sep 2015 19:02:35 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A6C9D278-0710-A22C-D83B6F8B99AB94EE http://www.progressivereform.org/CPRBlog.cfm?idBlog=A6C9D278-0710-A22C-D83B6F8B99AB94EE Center for Progressive Reform President Robert R.M. Verchick issued the following statement today in response to the burgeoning Volkswagen emissions scandal: With the Volkswagen emissions scandal, hard on the heels of the GM settlement, can anyone doubt the importance of strong regulation and tough enforcement? One automotive giant let a safety problem fester for a decade while more than 120 people died as a result. Another conspired to cheat on state emissions tests, pumping outrageous loads of pollution into the air we breathe so that they could make their cars peppier, and advertise them as such. We hear conservatives say all the time that regulation is unnecessary because the market is self-correcting. The scope of these scandals proves just the opposite: We need vigorous regulation and enforcement to keep Americans safe from companies that think they can increase their profits by endangering us all. Tue, 22 Sep 2015 17:12:59 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A2DE989E-AE0C-26C4-80C73AD919591E79 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A2DE989E-AE0C-26C4-80C73AD919591E79 Today, Stewart Parnell, former peanut company executive was sentenced to 28 years in prison for his role in a salmonella outbreak that resulted in the deaths of nine people and the illness of 174. CPR Member Scholar and University of Maryland School of Law professor Rena Steinzor issued the following statement in response to the sentencing: This sentence shows that the courts are willing to drop the boom on white collar criminal defendants whose elevation of profits over safety go so far as to kill people. Parnell ordered the shipment of peanut paste contaminated by salmonella that not only killed nine people, but also produced one of the biggest recalls in food safety history. His factory was a disgusting place, with broken equipment, a leaking roof, and rodent droppings throughout. Hopefully, this kind of prosecution will motivate the Congress to fully fund FDA efforts to prevent such tragedies. Steinzor is the author of Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction. Mon, 21 Sep 2015 18:42:38 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=729581BA-D185-D8BC-90706F048B02DDBB http://www.progressivereform.org/CPRBlog.cfm?idBlog=729581BA-D185-D8BC-90706F048B02DDBB CPR Member Scholar Rena Steinzor reacted to today's announcement of a settlement between General Motors and the Justice Department over charges stemming from the company's failure to disclose a deadly ignition defect it millions of its cars. Steinzor said: This settlement is shamefully weak. GM and its executives knew for years that they had a big problem with the ignition switch, which caused cars to stall at high speeds, depriving drivers of power steering, brakes, and airbags. The company's dysfunctional culture convened committees to palaver about it, while nothing was done, a culture described by Mary Barra, GM's CEO, as "the GM nod." But daunted by the company's size and prestige, U.S. attorney Preet Bharara blinked, collecting $900 million as a cost of doing business, but excusing GM from admitting its criminal wrongdoing. This kind of sweetheart deal shows that justice in America is anything but blind. Steinzor is the author of Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction. Thu, 17 Sep 2015 15:45:36 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9E4295F1-0B2B-A54C-E52ECDB0C492AFDF http://www.progressivereform.org/CPRBlog.cfm?idBlog=9E4295F1-0B2B-A54C-E52ECDB0C492AFDF Today, the Senate Homeland Security and Government Affairs Committee is holding a Hearing on legislation focused on the regulatory system entitled, "A Review of Regulatory Reform Proposals." CPR Vice-President and Wake Forest University School of Law professor Sidney Shapiro will be testifying. Wed, 16 Sep 2015 11:22:13 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=61539D2A-F9C5-EFA6-5ADF5EDFDBED222B http://www.progressivereform.org/CPRBlog.cfm?idBlog=61539D2A-F9C5-EFA6-5ADF5EDFDBED222B At long last, the Food and Drug Administration has promulgated two critical regulations implementing the Food Safety Modernization Act of 2011 (FSMA). The regulations flesh out the statute's requirements for facilities that process human food and animal feed. Of the regulations that FDA has proposed in order to implement the FSMA, these are perhaps the least controversial. Indeed, they have won praise from everyone from the Grocery Manufacturers Association to the food safety director of the Pew Charitable Trusts. This blog post focuses exclusively on the regulations governing human food. Mon, 14 Sep 2015 12:15:19 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FC3E4B4A-0D97-7E0B-D69C7A9A862C8DD4 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FC3E4B4A-0D97-7E0B-D69C7A9A862C8DD4 Marking a victory for workers, on August 27, the National Labor Relations Board (NLRB) issued a highly anticipated decision in the case of Browning-Ferris Industries, updating its overly restrictive standard for determining "joint employer" status for purposes of collective bargaining. The decision responds to the increasing reliance on contingent work arrangements that often involve multiple employers, and reflects the Board's recognition that its application of labor law must be adjusted to address the realities of today's economy. Much of the news coverage of the decision has focused on what it could mean for fast-food establishments, like McDonald's, whose joint employer status - as a big corporate franchisor exercising control over employees of its local franchisees - is currently pending review before the NLRB. Yet it's also worth exploring what the new joint employer standard means, if anything, for college football players seeking to collectively bargain. Thu, 10 Sep 2015 13:27:26 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=30D01FA5-92CA-C43D-E31B9BC01EB12A87 http://www.progressivereform.org/CPRBlog.cfm?idBlog=30D01FA5-92CA-C43D-E31B9BC01EB12A87 The answer will surprise you. What parts of the country benefit most from the series of new EPA rules addressing pollution from coal-fired power plants? The answer is not what you think. EPA does a thorough cost-benefit analysis of its regulations but the costs and benefits are aggregated at the national level. In a new paper, David Spence and David Adelman from the University of Texas break down these figures on a regional basis. What they found may surprise you. In fact, the areas benefitting the most are the very ones that rely most on coal. The reason is simple. Much of the benefit from reducing the use of coal comes in the form of health improvements - fewer heart attacks and deaths from respiratory disease, fewer asthma attacks. These health improvements are mostly in the vicinity of the power plants. So the same places that will have to pay the costs of reducing their coal use are the very ones who will reap many of the benefits. As is the case nationally, the benefits are much greater than the costs on a regional basis. Tue, 08 Sep 2015 14:45:55 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CC7703CE-A57E-EC75-A900FBA3FCF5D4EE http://www.progressivereform.org/CPRBlog.cfm?idBlog=CC7703CE-A57E-EC75-A900FBA3FCF5D4EE The Bay Journal published another interesting story this week by Rona Kobell about the perseverance it took by some residents and officials of rural Caroline County, Maryland, to finally address the failing septic systems plaguing their community. The story even highlights how some local officials, after decades of trying to find a resolution, died waiting for it. In addition to the residents of Goldsboro, Greensboro, and other towns near the headwaters of the Choptank River, another long-suffering character in the story is Lake Bonnie. The article shares the fond memories of one older resident who used to swim in the lake as a child, which was closed decades ago due in large part to the problems caused by nearby septic systems. Thu, 03 Sep 2015 16:11:27 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CE2E99AE-E925-4341-F8CE46EB81D9117F http://www.progressivereform.org/CPRBlog.cfm?idBlog=CE2E99AE-E925-4341-F8CE46EB81D9117F The essence of the argument that a new energy and environmental politics is needed is based on the idea that our traditional energy path (as well as its underlying assumptions) has outlived its useful life; the traditional energy narrative is stale. Cheap, but dirty, fossil fuel energy has played a significant role in contributing to economic growth and to the political authority of the United States for most of the 20th century. By the end of the century, however, the fundamental economic assumption of traditional energy policy has proven to be seriously flawed. Fortunately, a new narrative about a more democratic energy and environmental future can be constructed that can empower us to critically assess traditional policies as well as re-evaluate existing legal and political structures. How, though, does a politics of a clean power future connect with democracy? The central democratic principle is to promote greater participation and voices in institutions both political and economic. With that quick definition, a new, more democratic energy and environmental paradigm affects the production and delivery of energy; its consumption and control; its regulation and enforcement; and, its governance and legal institutions. Wed, 02 Sep 2015 10:46:42 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8F11A6E7-0601-9F55-85513809AC34B2DF http://www.progressivereform.org/CPRBlog.cfm?idBlog=8F11A6E7-0601-9F55-85513809AC34B2DF Every year, the federal government awards private firms billions of dollars in federal contracts. The contracts are supposed to go to "responsible" companies, but that isn't always the case. According to the Government Accountability Office, between 2005 and 2009, the Department of Labor's Wage and Hour Division issued 25 of its 50 largest fines against 20 federal contractors who later received over $9 billion in contracts in 2009. Over the same period, the Occupational Safety and Health Administration issued 8 of its top 50 fines against 7 federal contractors who went on to receive almost $180 million in contracts in 2009. Tue, 01 Sep 2015 12:31:35 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5F53F386-FFD7-9F23-58A33D0DD337C20B http://www.progressivereform.org/CPRBlog.cfm?idBlog=5F53F386-FFD7-9F23-58A33D0DD337C20B CPR's Unnatural Disaster report pointed out that current energy policies favoring fossil fuels made it "more likely that there will be disasters like Katrina in the future." It explained that global climate disruption increases temperatures thereby causing sea level rise, a big threat to the Gulf Coast, and that climate disruption models suggest a shift toward extreme weather events. Since Katrina, we have certainly seen lots of extreme weather. Perhaps most reminiscent of Katrina, on October 30, 2012, Superstorm Sandy hit much of the east coast, causing widespread flooding, especially in New York and New Jersey.[1] On February 5-6, 2010, an unusually severe snowstorm, labeled "smowmaggedon" buried Washington, D.C. Looking beyond our shores, super-typhoon Haiyan, one of the largest typhoons on record, devastated the Philippines in November of 2013. [1] See Adam Sobel, Storm Surge: Hurricane Sandy, Our Changing Climate, and Extreme Weather of the Past and Future (2014). Fri, 28 Aug 2015 15:41:44 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=980144F0-E635-0F8F-BC74236084DA24B9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=980144F0-E635-0F8F-BC74236084DA24B9 Natural disasters such as Hurricane Katrina,[1] Superstorm Sandy,[2] and the typhoon that devastated Fukushima,[3] as well as technical weaknesses that caused the Northeast blackout in October 2003,[4] and regulatory failures that ended California electric industry restructuring efforts[5] share two commonalities. First, they all affect the energy system at enormous costs in economic losses and in disrupted lives.[6] Indeed, severe weather events are the leading source of electricity grid disturbances in the US with 679 widespread power outages between 2003 in 2012. Those outages have been estimated to cost the US economy between $18 and $33 billion each year during that decade.[7] Second, the economic and social costs of such disasters are so significant because the centralized structure of electricity generation and distribution guarantees concentrated losses upon such occurrences. Fri, 28 Aug 2015 13:59:51 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6074C1F1-B674-C36C-8BAD907222EAB7AB http://www.progressivereform.org/CPRBlog.cfm?idBlog=6074C1F1-B674-C36C-8BAD907222EAB7AB Earlier today, a federal district court judge in North Dakota enjoined implementation of the new Clean Water Rule (also known as the Waters of the United States rule). And if ever there was a judicial opinion begging for prompt reversal, this is it. EPA and the Army Corps of Engineers put years of effort into that rule, and drew upon an extraordinary number of studies to arrive at their position. The court pretended - among other errors - that all that effort and evidentiary support simply did not exist. Fri, 28 Aug 2015 11:47:23 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8FC286C0-F8FE-3849-72C357041EDBEAA5 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8FC286C0-F8FE-3849-72C357041EDBEAA5 With the ten-year anniversary of hurricane Katrina, looking back on CPR's landmark report on the disaster revealed two key public policy insights. One was that a series of government policy failures resulted in a far worst disaster than would have occurred if government had been more pro-active. The second was that more effective government requires addressing and resolving what are often difficult policy issues, something that requires an ongoing dialogue and attention to what experts know and do not know about our options. Today, ten years after Katrina, the country has retreated even further from having pro-active government. Many elected leaders refuse even to discuss what are the appropriate functions of government, let alone what is the preferable governmental policy option. For them, there is simply no justification for expanding the government or even for adequately funding the government that we have. Thu, 27 Aug 2015 13:38:19 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=603CABE6-B8DA-C0CF-58C5430BA0B63D5F http://www.progressivereform.org/CPRBlog.cfm?idBlog=603CABE6-B8DA-C0CF-58C5430BA0B63D5F In Albert O. Hirschman's brilliant analysis of conservative responses to progressive social programs entitled The Rhetoric of Reaction, he identifies and critiques three reactionary narratives that conservatives use to critique governmental programs -- the futility thesis; the jeopardy thesis; and the perversity thesis. The futility thesis posits that governmental attempts to cure social ills or to correct alleged market imperfections are doomed to fail because the government cannot possibly identify the problem with sufficient clarity, predict the future with sufficient accuracy, and devote resources sufficient to "make a dent" in the problem. The jeopardy thesis argues that "the cost of the proposed change or reform is too high as it endangers some previous, precious accomplishment." The jeopardy thesis thus subjects governmental interventions to a cost-benefit analysis and finds them wanting because the gains to the beneficiaries never exceed the costs to society of putting existing social arrangements at risk. According to the perversity thesis, "any purposive action to improve some feature of the political, social, or economic order only serves to exacerbate the condition one wishes to remedy." The perversity thesis is pervasive in conservative critiques of government programs. On any given day, the reader of the Wall Street Journal's editorial page is likely to find one or more applications of that thesis. Perhaps the most common target of the perversity thesis is the perennial call for an increase in the minimum wage. As the Journal's editorial page told us on August 11 in an editorial entitled "Another Minimum Wage Backfire," minimum wage increases inevitably harm the very low income workers that their supporters foolishly mean to help by providing an incentive to employers to replace low-wage employees with computers or machines. Wed, 26 Aug 2015 09:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=030634D9-9CE5-8DD2-8AAC763D4BB3F208 http://www.progressivereform.org/CPRBlog.cfm?idBlog=030634D9-9CE5-8DD2-8AAC763D4BB3F208 Recently, six CPR Member Scholars sat down for an hour-long conversation about the lessons that policymakers have - and have not - learned in the years since Hurricane Katrina blew through the Gulf Coast and stretched our flawed flood-protection infrastructure past its limits. As explained in our groundbreaking report, Unnatural Disaster: The Aftermath of Hurricane Katrina, published just weeks after the New Orleans levees broke, the catastrophic consequences of the storm were the product of decades-long failures to protect our most vulnerable neighbors. In the video below, CPR Member Scholars Alyson Flournoy, Robin Craig, Sheila Foster, Tom McGarity, Sid Shapiro, and Rob Verchick discuss some of the issues raised in our 2005 report, but add new insights building on a decade of research, advocacy, and efforts to promote stronger disaster preparedness and response. They touch on issues of social vulnerability, public health, and political gridlock, but also note important successes and opportunities. Tue, 25 Aug 2015 10:29:30 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F275346F-9AA4-7181-6A3B13E92C91FE15 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F275346F-9AA4-7181-6A3B13E92C91FE15 As readers of this blog and watchers of the Bay restoration process understand, states are under increasing scrutiny regarding their progress, or lack thereof, implementing the Chesapeake Bay Total Maximum Daily Load (TMDL) as we approach the 2017 midpoint assessment. But behind the scenes, a federal-state partnership known as the Chesapeake Bay Program is also tasked with working on the framework for tracking implementation of the Bay TMDL. This framework consists of establishing and improving many guidelines and protocols used to assess the performance of states, sectors, and even the many different best management practices (BMPs) used to reduce pollution. All of the data collected and assessed under this framework is then fed through the Bay Program's Watershed Model to provide the public and policymakers with the best guess as to how much pollution-reduction has actually been achieved so far. Given the importance of this framework and Model, an increasing level of scrutiny is now also being given to what exactly is going on behind the curtain. The Bay Program's experts are housed within six "goal implementation teams" or GITs. The Water Quality GIT is further divided into 14 work groups that focus on different sectors, pollutants, or other subject matter of interest. While many of these groups have been active for years, there has been a recent surge of interest in their work as a number of important decisions are coming up that will affect the way that future progress is measured. And given that the agriculture sector is the largest source of nutrient and sediment pollution to the Bay watershed, the work of the Agricultural Work Group is of particular interest to clean water advocates right now. The Nutrient Management Panel is about to make final recommendations to the Bay Program's Agricultural and Watershed Technical work groups. These recommendations include the amount of credit that will be assigned by the Model for agricultural operations that submit a nutrient management plan. Unlike many actions and BMPs that a state can claim pollution reduction credit for (such as a wastewater treatment plant upgrade, a stream buffer installation, or the creation of a rain garden), a nutrient management plan is merely a piece of paper, unable by itself to prevent any pollution. The question is how much credit should the submission of that paper be worth within the Watershed Model? Mon, 24 Aug 2015 07:50:18 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B9450835-A3E1-8915-16325C1513292279 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B9450835-A3E1-8915-16325C1513292279 Board Pleased to Welcome New Members with Expertise in Climate Change, Environmental Justice, Conservation and Energy Infrastructure The board of directors of the Center for Progressive Reform today announced the appointment of three new board members: Alyson Flournoy, Alice Kaswan, and Alexandra Klass. Alyson Flournoy is the Senior Associate Dean for Academic Affairs and a Professor of Law at the University of Florida Levin College of Law. Professor Flournoy's scholarship focuses on environmental ethics, decision-making processes under environmental and natural resource laws, and on the intersection of science and law. Her most recent work focuses on the importance of identifying the values that are embedded in the nation's environmental laws and policies. Since 1990, Professor Flournoy has served as a Trustee of Florida Defenders of the Environment (FDE), one of Florida's longest established and best respected conservation groups. "CPR's synthesis of environmental justice, administrative law, the regulatory process and public accountability is a model for good academic citizens everywhere. I'm excited to work with the Board as they continue to guide CPR in its mission of holding the powerful to account," said Flournoy. Tue, 18 Aug 2015 08:31:32 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6306A7BE-EB0D-1C22-82A76BD4B60ECD80 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6306A7BE-EB0D-1C22-82A76BD4B60ECD80 Thousands of U.S. workers die every year because of on-the-job exposure to unsafe levels of crystalline silica, a toxic dust common in the construction, sandblasting, and mining industries. Even at the current legal limits, inhaling the tiny toxic particles poses a significant risk to workers of silicosis - an incurable and fatal disease that attacks the lungs - and other diseases such as lung cancer, tuberculosis, chronic kidney disease, and autoimmune disorders. If you're exposed to silica dust at work or know someone who is, you've probably been following news about the Occupational Safety and Health Administration's (OSHA) proposed rule published in September 2013 to strengthen the existing standard by cutting in half the permissible exposure limit and imposing medical monitoring requirements. By OSHA's own estimates, the rule would prevent almost 700 deaths and 1600 illnesses every year, which is a primary reason why CPR considers the silica rule among the top 13 essential regulatory actions the Obama Administration should complete before leaving office. Today marks the one-year anniversary of the close of the rulemaking docket for the proposal, but OSHA hasn't made any apparent progress toward finalizing the rule. Rather, OSHA is now two months behind on its self-imposed June 2015 deadline for completing a review of the comments, testimony, and other evidence submitted on the proposal. So, what's the holdup over at OSHA? Given that the rule's several decades in the making, it's fair to expect that OSHA would keep the public apprised of its status. But the agency hasn't uttered a word, leaving those of us waiting to celebrate at the finish line wondering if they're even still on the track. The best-case scenario would be for OSHA to announce immediately - today, even! - that it has sent the draft final rule over to the White House Office of Information and Regulatory Affairs (OIRA) for review, and then for OIRA to clear the rule promptly and without any weakening changes. Although Executive Order (E.O.) 12866 executive review authorizes OIRA to waive review for any reason (or no reason at all), there's no obvious instance where OIRA has chosen to do so for a rule it has categorized as "significant," such as the silica rule. Thus, this hypothetical proceeds on the assumption that OIRA would conduct a review, but ideally, would complete it within the 90-day time period set forth in the E.O. Under this scenario, the new silica standard could be finalized and in effect no later than January 2016, and most of the new requirements could be enforceable by July 2016. Tue, 18 Aug 2015 08:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=707F0F29-BF95-55FC-7EABA8DB16C3B067 http://www.progressivereform.org/CPRBlog.cfm?idBlog=707F0F29-BF95-55FC-7EABA8DB16C3B067 On Thursday and Friday of last week, I blogged about environmental justice and the Clean Power Plan. My first post considered how stringent targets and the right incentives could lead to significant aggregate reductions that will indirectly lead to reductions in co-pollutants that have a disproportionate impact on of-color and low-income communities. Friday, I examined the plan's distributional effects and its provisions requiring community engagement. Today, I'll examine provisions intended to help overburdened communities benefit from a transition to genuinely clean energy, and then I'll draw some conclusions based on the issues discussed in all three blog posts. Co-pollutant impacts are not the only environmental justice issue. Rising energy costs are a serious concern for poor families who spend a disproportionate share of their income on energy necessary to stay warm in winter and, increasingly, to stay cool in summer. In addition, justice questions arise as we consider who will benefit from the lower costs and jobs created by clean energy and demand-side energy efficiency. The Clean Power Plan addresses concerns about rising costs and about the distribution of energy-efficiency benefits. The Clean Energy Incentive Program, which will provide matching federal allowances for investments in renewable energy and energy efficiency, targets the energy efficiency incentives exclusively to investments in low-income communities. By helping households reduce energy use through energy efficiency programs, poor households' energy bills can stay the same or be reduced, notwithstanding potentially higher energy rates. Mon, 17 Aug 2015 09:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6FC636DC-D38C-53B5-50862030F359F0E3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6FC636DC-D38C-53B5-50862030F359F0E3 Yesterday in this space, I discussed how stringent Clean Power Plan targets are critical to achieving significant aggregate co-pollutant reductions that will indirectly benefit many overburdened communities. Today, I turn to classic environmental justice issues: the distributional effects of the plan and its community engagement provisions. As I explained in my short essay in CPR's policy paper, The Clean Power Plan: Issues to Watch, it is difficult for EPA to directly control the plan's distributional effects given the realities of an interconnected grid and the states' important implementation role. Environmental justice groups had suggested that EPA require states to do an environmental justice assessment of their state implementation plans. The Plan acknowledges the importance of localized co-pollutant impacts on communities of color and low-income communities and "encourages" states to evaluate the impact of their plans of vulnerable communities and ensure that they benefit from the rule's implementation. It did not, however, require such an assessment. Nonetheless, the preamble suggests EPA's strong support for considering co-pollutant impacts in developing state implementation plans. EPA notes that states are required to engage in long-term planning to reduce criteria pollutants, and observes that: "Multi-pollutant strategies that incorporate criteria pollutant reductions ... jointly with strategies for reducing carbon dioxide emissions from affected EGUs needed to meet Clean Power Plan requirements ... may accomplish greater environmental results with lower long-term costs." The agency states that the Clean Power Plan implementation process creates an opportunity "to consider the most effective means of meeting ... obligations while limiting or eliminating localized emission increases that would otherwise affect overburdened communities." Fri, 14 Aug 2015 09:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6F3B659E-E88E-E275-1DC49007DFE09E14 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6F3B659E-E88E-E275-1DC49007DFE09E14 This week provided another important legal decision in the fight to regulate polluted runoff from agriculture. A California lower court on Tuesday ordered the State Water Quality Control Board to reconsider its ineffective regulations on agricultural operations in the Central Coast region. Judge Timothy Frawley of the Sacramento Superior Court ruled in favor of the Monterey Coastkeeper, the Otter Project, and other environmental and commercial and recreational groups, as well as a resident who could no longer drink her tap water because it was so polluted from runoff. This decision represents another farm bureau loss and another crack in the wall that has long protected agricultural interests from having to comply with clean water rules. Like most other states and regions, agricultural operators in central California have long been allowed to pollute surface and ground waters, enjoying special status granted to agricultural operations and other contributors of nonpoint source pollution. In 2004, the Central Coast Water Quality Control Board took baby steps toward solving the problem with the creation of a conditional waiver that agricultural operations could sign on to. Much like a general permit, the conditional waiver at least recognized the problem and established a framework for regulation. After the first conditional waiver expired in 2009, staff for the board found that nearly all beneficial uses of waters in the region were affected by agricultural pollution, that the problem was "well documented, severe, and widespread," and that there was "no direct evidence" of improvement in water quality under the conditional waiver. As the name suggests, the conditional waiver essentially allowed business as usual during its five-year term. Fri, 14 Aug 2015 08:58:52 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C14F445F-F4E1-B7AC-2A56C02F23CBF47A http://www.progressivereform.org/CPRBlog.cfm?idBlog=C14F445F-F4E1-B7AC-2A56C02F23CBF47A Though directed at greenhouse gases, the Clean Power Plan, by controlling existing fossil-fuel power plants, will have important implications for associated co-pollutants, many of which continue to be emitted at unhealthy levels notwithstanding decades of control. The degree to which the Clean Power Plan will lead to reductions in traditional pollutants - the extent of its "co-pollutant benefits" - is an especially important issue for communities experiencing the highest pollution levels, communities that are disproportionately of-color and low-income. Hence, the Clean Power Plan presents an opportunity for the federal government and the states to further environmental justice. So, how does the Plan measure up? And how should the states maximize the opportunity to achieve environmental justice? In The Clean Power Plan: Issues to Watch, I wrote a short essay identifying and explaining a number of environmental justice issues raised by the proposal. The final Clean Power Plan's preamble recognizes the importance of this issue, devoting a major section to "Community and Environmental Justice Considerations." EPA has also created a Clean Power Plan Community Page devoted to addressing the impacts of the rule on overburdened communities. A first key issue is the degree to which the plan achieves large aggregate reductions in co-pollutants, a function of the plan's stringency. A second key issue concerns classic environmental justice: the degree to which the plan distributes reductions where they are most needed and provides vulnerable communities with meaningful participatory opportunities. A third key issue is the degree to which low-income and disadvantaged communities avoid the costs and reap the benefits from a clean energy transition. In this post, I'll take a look at the first of these issues, and tackle the other two and draw some conclusions in subsequent posts tomorrow and Monday. Thu, 13 Aug 2015 08:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6EF50540-CFB2-7EEA-104237BF37A2688C http://www.progressivereform.org/CPRBlog.cfm?idBlog=6EF50540-CFB2-7EEA-104237BF37A2688C The New Push to Protect American Workers from the Conditions of the Marketplace In 1873, when Mark Twain and Charles Dudley Warner published their book, The Gilded Age, they satirized the greed, political corruption, and skewed distribution of wealth that pervaded the United States at the time. As during Twain's time, most of the wealth generated in this country in recent decades has gone only to the very wealthiest among us. For Americans who work for a minimum wage, there has not been a raise for decades, even though inflation has worn away their buying power. Recently we have seen a national movement to raise the minimum wage, but it is not the only issue that the nation must face if it is to address the plight of workers in this economy. Mon, 10 Aug 2015 18:48:01 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FFD08CDC-C804-1897-ADB77BA1A3342FD3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FFD08CDC-C804-1897-ADB77BA1A3342FD3 Raul Zapata Mercado, a husband and father of three, was killed on January 28, 2012 when a 12-foot trench collapsed on him while he was working at a U.S. Sino Investments Inc. construction site in Milpitas, California. More than three years after the fatal collapse, in May 2015, the construction company owner, Richard Liu, and the project manager, Dan Luo, were convicted of involuntary manslaughter - in other words, even though they didn't act maliciously to kill Mercado, they are responsible for unintentionally killing him because their complete disregard for worker safety was so negligent that it rose to the level of a criminal act. Luo was also convicted of three counts of felony labor code violations for violating a safety order and causing a workers death. And on Friday, July 31, both men were sentenced to two years in prison as punishment for committing involuntary manslaughter. This is big news. Criminal charges are far too rare for company owners and executives whose misconduct causes workers to be seriously injured or killed on the job. Wed, 05 Aug 2015 12:20:07 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F0769B59-F11F-11D1-6535F1E60071C689 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F0769B59-F11F-11D1-6535F1E60071C689 When asked by a reporter why he robbed banks, the notorious bank robber Willie Sutton is said to have responded, "Because that's where the money is." For decades, the accepted conventional wisdom held that a similar dynamic motivated legions of industry lobbyists to parade through the front door at the White House Office of Information and Regulatory Affairs (OIRA). Why - one might ask - does industry spend so much time complaining to OIRA's political appointees and staff-level economists about rules they find inconvenient to their bottom line? Because, like CPR has been saying for many years in reports, apparently that's where the regulatory relief is to be had. In 2011, we released a ground-breaking report that sought to move beyond mere intuition and confirm with actual data the degree to which industry was able to wield its outsized influence to secure favorable deregulatory changes to agencies' pending rulemakings. Wed, 05 Aug 2015 12:13:50 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F03D9EC6-A323-9678-FC9054AE5B933C78 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F03D9EC6-A323-9678-FC9054AE5B933C78 Against intense pressure from the coal industry to tie Americans to dirty fuels forever, the Obama administration has surged forward in the battle to fight climate change. The Clean Power Plan rule, released today by the EPA, promises serious cuts in greenhouse gas emissions, while giving states the flexibility and incentives they need to reduce pollution, keep the grid humming, and save consumers money. The challenge, as EPA Administrator Gina McCarthy put it, was "wicked hard." But polls show Americans want action on climate change. Last week, CPR Scholars released a white paper on a number of key issues to watch on the Plan, offering insights on what to look for and on how states could implement it. Some of the key questions the report raises are included below with my reactions after reading the final rule for the first time. This is the beginning of an on-going discussion. CPR Scholars will continue to monitor the implementation of this rule and will closely examine the final rule's implications for both states and citizens alike. Mon, 03 Aug 2015 18:38:17 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=96FF79AD-07A0-ADF5-088DE216F3FC1F90 http://www.progressivereform.org/CPRBlog.cfm?idBlog=96FF79AD-07A0-ADF5-088DE216F3FC1F90 July 26 marked the 25th Anniversary of the Americans with Disabilities Act (ADA), the federal civil rights legislation that protects the rights of people with disabilities to participate in and contribute to society, including the right to join the workforce. Over the past quarter-century, the law has undoubtedly improved the lives of many Americans, but challenges remain, most notably with respect to equal employment opportunities. As U.S. Labor Secretary Thomas E. Perez aptly wrote in his statement on the anniversary, "While we celebrate the courage of the trailblazers who made the ADA possible and mark the momentous progress of the last 25 years, we must also be resolute about meeting the challenges that remain. Employment remains the unfinished business of the ADA." Mon, 03 Aug 2015 13:10:45 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8B284F3A-E060-CD4C-163A9C9D194FCBCD http://www.progressivereform.org/CPRBlog.cfm?idBlog=8B284F3A-E060-CD4C-163A9C9D194FCBCD Recently, the U.S. Court of Appeals for the Third Circuit affirmed the 2013 decision of the U.S. District Court for the Middle District of Pennsylvania that EPA did not exceed its Clean Water Act (CWA) authority in issuing the total maximum daily load (TMDL), or pollution diet, for the Chesapeake Bay. The ruling affirmed the legality of the nation's most ambitious TMDL and, more broadly, it also rejected the plaintiffs' exceedingly narrow view of TMDLs. As presented in a recent case brief, CPR Member Scholars Emily Hammond, Dave Owen, and Rena Steinzor and I argue that this decision is a good example of how judicial deference can protect important agency efforts to protect the environment. According to brief co-author Rena Steinzor, "The Third Circuit provided resounding support for ongoing efforts to restore the Chesapeake and for EPA's authority to work with states to adopt broad and protective TMDLs for impaired waters across the country." Nonpoint sources of pollution - particularly from agriculture - are the primary cause of impairment in the Chesapeake Bay and in many water bodies across the country. And TMDLs can be the perfect tool to address the problem - if EPA and the states embody the spirit of "cooperative federalism." Fri, 31 Jul 2015 11:28:01 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=ED1BF94E-CBA9-9A75-B48F14D494DE4C92 http://www.progressivereform.org/CPRBlog.cfm?idBlog=ED1BF94E-CBA9-9A75-B48F14D494DE4C92 As soon as next week, the Obama Administration is expected to release the final version of its long-awaited Clean Power Plan, an ambitious regulatory package under the Clean Air Act's provisions that will ultimately reduce greenhouse gas emissions from power plants, the largest single source of U.S. emissions. The latest rumor in rumor- and sun-drenched Washington is that the rule will come on Monday. It's as certain as the sun rising in the east that the energy industry and their congressional allies on Capitol Hill will spare no adjectives in their opposition to the plan. Senate Majority Leader Mitch McConnell (R-KY) is already on record calling on the states to refuse to participate in the planning process for developing state implementation plans, as called for in the package. And it's likely there'll be a court challenge, as well. By now, it's becoming a familiar playbook for the President's opponents. But once the volume and vitriol subsides just a bit, there'll be some important work to do analyzing the final version of the Clean Power Plan. In a new issue alert out this morning, a distinguished group of 11 Center for Progressive Reform Member Scholars, all law professors who are experts in a variety of energy and environmental topics, identify key issues likely to determine the success of the plan. As the paper's coordinating editor, Alice Kaswan said in releasing The Clean Power Plan: Issues to Watch, "With the Clean Power Plan, the Obama Administration is finally confronting emissions from our existing energy infrastructure. If it sticks to its guns, it can put the United States on a course to meaningful reductions in greenhouse gas emissions, thus enabling our transition to a cleaner energy future and helping the U.S. assert more compelling international leadership on climate change. If it crumbles under political pressure, this chance won't come again for this President, and we will only prolong the emissions that are progressively increasing our collective risk. The success of the plan in reducing emissions and facilitating a clean energy transition is not a foregone conclusion; EPA's final policy choices will be critical." Fri, 31 Jul 2015 10:16:16 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C6144BF9-DF2C-070C-6A09700A46F9E605 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C6144BF9-DF2C-070C-6A09700A46F9E605 "A fair day's pay for a fair day's work." This is the premise on which the Federal Labor Standards (FLSA) Act was enacted 75 years ago. By 1938, the Great Depression had brought about high unemployment and had left workers with little leverage to negotiate over working conditions or hours, setting the stage for employers to squeeze labor by requiring long work hours without additional compensation. To prevent this unfair practice from continuing, the FLSA's overtime provisions require employers to pay all hourly and many salaried employees overtime pay (time and a half) when they work more than 40 hours a week. Salaried employees making below a certain salary threshold automatically qualify for overtime pay, and those making more than the threshold qualify unless they are exempt (i.e., they are "employed in a bona fide executive, administrative, or professional capacity"). However, the law does not set the salary threshold to adjust automatically based on inflation, and thus, from time to time, the threshold has been updated to reflect economic growth. Wed, 29 Jul 2015 18:49:30 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=95E7B5D2-961E-99D2-B8DFB1046EFFA35A http://www.progressivereform.org/CPRBlog.cfm?idBlog=95E7B5D2-961E-99D2-B8DFB1046EFFA35A Last Wednesday, a Montgomery County Circuit Court judge held that the Montgomery County Water Quality Protection Charge is invalid and that the plaintiff should not have been required to pay any stormwater fee to the county. The case could have significant ramifications across the state for jurisdictions that have, like Montgomery County, established a stormwater fee similar to the one invalidated in the case. First, some background. In 2012, the Maryland General Assembly passed HB 987, which required any jurisdiction subject to a certain federal stormwater permit (including, for example, Baltimore City and Prince George's County) to implement an annual stormwater remediation fee and a local watershed protection and restoration fund to hold those new funds. The law did not require the local governments to set the fee at any specific level or otherwise require them to collect a specified amount in revenues; each jurisdiction had discretion in setting the local stormwater remediation fee. Mon, 27 Jul 2015 12:57:26 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=22387A73-BDB2-30B0-F37984BFCA4A98D3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=22387A73-BDB2-30B0-F37984BFCA4A98D3 When it commenced on June 1, OIRA's review of the EPA's draft final rule to limit greenhouse gas emissions from existing power plants launched a flurry of lobbying activity among a veritable who's who of America's largest fossil fuel polluters. In just over six weeks, the White House's antiregulatory shop has presided over no less than 21 Executive Order 12866 meetings, the majority of which involved high-priced corporate lobbyists seeking to dilute, delay, or block the rule outright. The log for a July 1 meeting requested by Berkshire Hathaway Energy contains an interesting tidbit: Among the attendees was a representative of the Small Business Administration's (SBA) Office of Advocacy. Nominally, of course, the mission of the SBA Office of Advocacy is to ensure that the concerns of America's small businesses are adequately represented in the federal rulemaking process. So, it's a little perplexing that a member of the SBA Office of Advocacy staff would be seated alongside the President and CEO of one of the largest and wealthiest energy concerns in the United States and two of its vice presidents. Berkshire Hathaway Energy is of course a component of Berkshire Hathaway, the Chairman and CEO of which is Warren Buffet who himself is currently listed as the third wealthiest person on earth. Wed, 22 Jul 2015 14:50:10 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=24D71581-BC16-1DE6-604C6EE60C0EADAB http://www.progressivereform.org/CPRBlog.cfm?idBlog=24D71581-BC16-1DE6-604C6EE60C0EADAB Labor Secretary Tom Perez came into office pledging to create good jobs and take on the economic injustice that oppresses blue-collar workers, from raising the minimum wage and restoring unpaid overtime to combatting wage theft. Luckily, the head of his Wage and Hour Division, David Weil, the author of a revelatory report on how to make the most of strategic enforcement, has moved out quite aggressively. It's a pity that other, even more serious crimes, don't seem to get the same priority from elsewhere in the Labor Department. Yesterday, Weil and New York State Attorney General Eric Schneiderman announced that they'd filed charges and secured a guilty plea from the owner of nine Papa John's restaurants who did not pay his workers the minimum wage, stole some of the wages they owed the workers, and fabricated tax returns to cover up his misdeeds. "My office will not hesitate to criminally prosecute any employer who underpays workers and then tries to cover it up by creating fake names and filing fraudulent tax returns," said Schneiderman. Added Weil, "This judgment should be a wake-up call for all employers who think they can break the law, not pay their workers, cover it up and get away with it. It is part of our commitment to ensure that employers who play by the rules aren't unfairly undercut by competitors who cheat, and that workers are guaranteed a fair day's pay for a fair day's work." Thu, 16 Jul 2015 17:26:47 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F56F8EC7-FF2E-2D74-90ABCB90DBF46408 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F56F8EC7-FF2E-2D74-90ABCB90DBF46408 Today, CPR Member Scholars, with a larger group of law professors, submitted an amicus brief to the Supreme Court in the case of Federal Energy Regulatory Commission (FERC) v. Electric Power Supply Association. The professors submitted the brief because, "they believe that the U.S. Court of Appeals for the District of Columbia Circuit made serious errors when it held that the Federal Energy Regulatory Commission (FERC) lacked authority to regulate operators' rules for demand response (DR) in the wholesale electricity markets. That holding is contrary to the text, history, and structure of the Federal Power Act (FPA), which mandates that FERC must remedy 'practices . . . affecting' wholesale electricity rates to ensure such rates are just and reasonable. Moreover, it ignores FERC's reasonable interpretation of its statutory authority." Thu, 16 Jul 2015 12:57:11 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EBD1445F-B83E-F17C-D983BB7ED366333D http://www.progressivereform.org/CPRBlog.cfm?idBlog=EBD1445F-B83E-F17C-D983BB7ED366333D "I'm Republican, and I want to do regulatory reform." Whether they've uttered that exact nine-word phrase or not, virtually every Republican on Capitol Hill has enthusiastically endorsed the sentiment it expresses at some point - if not on a near-daily basis - during the last few years. Who could blame them? The unshakable conviction that our regulatory system is broken and that gutting it is the key to its salvation is apparently one of the few areas where all the GOP's members can find common ground. Attacking the regulatory system has become a safe topic of conversation for conservatives - almost their version of "weather" small talk. And not for nothing, they're pretty confident it's a political winner, too. Witness this week, when both the House and the Senate have scheduled oversight hearings for the White House Office of Information and Regulatory Affairs (OIRA) - an obscure bureau with a direct political line to the Oval Office that is charged with reviewing agency regulations. In practice, OIRA serves as the single most powerful antiregulatory force in the rulemaking process, translating the White House's political calculations and intense lobbying behind closed doors from well-connected corporate interests into the delay, dilution, or death of pending regulations. To my knowledge, both chambers of Congress have never scheduled two OIRA oversight hearings in the same week before. CPR Member Scholar Noah Sachs is scheduled to testify at the hearing before the House Judiciary's Subcommittee on Regulatory Reform, Commercial, and Antitrust Law today. As he explains in his testimony, OIRA is arguably one of the greatest sources of dysfunction in the rulemaking process, working time and again to prevent agencies from carrying out their statutory missions of protecting people and the environment in an effective and expeditious manner. Specifically, he writes: Not only does OIRA review extend the length of time for rulemaking, but it also provides numerous opportunities for political interference with the content of the rule. During OIRA review of agency regulations, industry lawyers and lobbyists use OIRA as a court of last resort to weaken or block pending regulations that have been vetted within the agency that promulgated them. Wed, 15 Jul 2015 10:24:07 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B2D93D81-C1E8-89FD-645269E28978445B http://www.progressivereform.org/CPRBlog.cfm?idBlog=B2D93D81-C1E8-89FD-645269E28978445B Public Citizen to host discussion of CPR Member Scholar Rena Steinzor's new book, "Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction." On Monday, July 20, 2015 Public Citizen, the Center for Progressive Reform and the Bauman Foundation will lead a discussion focused on CPR's immediate past president and University of Maryland Law School professor Rena Steinzor's book, "Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction." Tue, 14 Jul 2015 13:49:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=869833BE-CB13-2218-60CBF060A442581D http://www.progressivereform.org/CPRBlog.cfm?idBlog=869833BE-CB13-2218-60CBF060A442581D In Michigan v. EPA, handed down two weeks ago, the Supreme Court waded into the decades-long debate over the use of cost-benefit analysis (CBA) in agency rulemaking. The decision struck down EPA's limits on mercury emissions from power plants for the agency's failure to consider costs, and so appears, superficially at least, like a win for the pro-CBA camp. Indeed, Professor Cass Sunstein of Harvard - President Obama's former "regulatory czar" and one of CBA's most prominent cheerleaders - has been crowing about the opinion, hailing it as "a rifle shot," ringing in the arrival of "the Cost-Benefit State." But Sunstein's celebration is a bit premature; his so-called "cost-benefit state" remains mostly in his imagination. In fact, there is good reason to believe that the Court remains quite skeptical of the particular brand of CBA that Professor Sunstein advocates. And that's very good news for the rest of us. Mon, 13 Jul 2015 13:14:27 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=51E8D0FB-C3AF-8146-ECB0126D2BDDCF3E http://www.progressivereform.org/CPRBlog.cfm?idBlog=51E8D0FB-C3AF-8146-ECB0126D2BDDCF3E House GOP's "Negative Earmarks" in Appropriations Bill Would Undercut Key Protections and Cost Thousands of Lives Today, the Center for Progressive Reform released a new Issue Alert, "Earmarking Away the Public Interest: How Congressional Republicans Use Antiregulatory Appropriations Riders to Benefit Powerful Polluting Industries." The report, by CPR Member Scholars Thomas O. McGarity of the University of Texas School of Law and Richard Murphy of Texas Tech University School of Law and CPR Senior Policy Analyst James Goodwin, examines "negative earmarks" - riders attached to must-pass appropriations bills that block agencies from taking specific actions to protect public health, safety, and the environment. The report compares this type of attack on public safeguards, attached to legislation without public scrutiny, to the "positive" earmarks like the "Bridge to Nowhere" that Congress has moved in recent years to prevent. Thu, 09 Jul 2015 10:41:50 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7E780FBE-CE2E-C66C-E7C55F0961094733 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7E780FBE-CE2E-C66C-E7C55F0961094733 In a blog post yesterday, Todd Aagaard provided a quick summary of yesterday's Third Circuit decision rejecting the Farm Bureau Federation's challenge to the Chesapeake Bay TMDL. This is an interesting and important case, and it will take a while to digest. But just based on a preliminary read, a few issues seem particularly interesting and important. What does TMDL mean? The Third Circuit interpreted section 303(d) in a way that seems to afford EPA - and the states - discretion in determining the content of TMDLs. The Farm Bureau's core argument was that a TMDL should only specify a daily mass of allowable pollutants, and that anything else - for example, a division of that mass into load and wasteload allocations, or into further subdivisions - exceeded the authority granted under the Clean Water Act. The Third Circuit rejected that argument, instead concluding that "'total maximum daily load' is a term of art meant to be fleshed out by regulation, and certainly something more than a number." Tue, 07 Jul 2015 17:14:03 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=258129FA-DE9E-3B38-A2C513380AE5FAE3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=258129FA-DE9E-3B38-A2C513380AE5FAE3 The Supreme Court's decision on June 26 recognizing same-sex couples' fundamental right to marry is a significant, albeit long overdue, civil rights victory for the LGBT community and for our nation. You don't have to look any further than the long list of benefits available only to married couples to see how denying same-sex couples the right to marry or refusing to recognize their marriage performed in another state is discriminatory. Fortunately, the Court's ruling means same-sex spouses will now become eligible for these benefits no matter where they reside. Tue, 07 Jul 2015 13:31:14 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1D88B353-E103-E484-DC3754C97924E277 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1D88B353-E103-E484-DC3754C97924E277 The Third Circuit's decision today is a tremendous victory for the elusive goal of restoring the Chesapeake Bay to the point that it is ecologically healthy. As the Third Circuit made clear, the Farm Bureau's relentless and self-serving opposition to EPA's leadership in this area misreads the law. Strong federal pollution controls are the last hope for the largest estuary in the world and for the millions of people who trek to its shores to enjoy its amazing beauty. The decision gives EPA the whip hand in organizing the efforts of recalcitrant states, special interests like the Farm Bureau, and environmental officials at all levels of government who have the expertise and the wisdom to rescue the Bay. With EPA's leadership secured, the Bay's health is headed in the right direction - toward a reinvigorated ecosystem no longer choked by dead zones and overwhelmed by runoff. Mon, 06 Jul 2015 13:33:50 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EA222312-E3B0-D0FD-182D46DBA333018A http://www.progressivereform.org/CPRBlog.cfm?idBlog=EA222312-E3B0-D0FD-182D46DBA333018A The following post is based on an article by Professor Glicksman on the George Washington Law Review website.[1] ?In Michigan v. Environmental Protection Agency,[2] Justice Scalia, for a 5-4 majority, held that the Environmental Protection Agency (EPA)'s failure to consider cost at the initial stage of deciding whether to regulate emissions of hazardous air pollutants from electric generating units (EGUs or power plants) under s. 112 of the Clean Air Act (CAA), even though it gave ample consideration to cost at multiple subsequent stages of the rulemaking, was unreasonable. The provision that EPA improperly interpreted is narrow in scope, applying only to EGUs. The decision remanding the case to the D.C. Circuit is unlikely to significantly affect EPA's effort to regulate EGUs under s. 112, unless the delay in the onset of regulation on remand stretches into a presidential administration that views this regulatory initiative less favorably than the Obama Administration's EPA. Nevertheless, the case establishes principles and raises important questions of environmental and administrative law that are likely to arise in a host of future regulatory contexts. In the face of EPA's languid regulation of hazardous air pollutants, Congress in 1990 required EPA to regulate emissions of more than 180 hazardous air pollutants listed in the statute itself. It also required EPA, in s. 112(n)(1) of the CAA, to perform a study of health hazards reasonably anticipated to occur as a result of EGU emissions of any of the listed pollutants, such as mercury. Section 112(n)(1) provides that EPA "shall regulate [EGUs] . . . if [it] finds such regulation is appropriate and necessary after considering the results of the study . . . ."[3] After conducting the study, EPA concluded that regulation of hazardous air pollutants from EGUs was "appropriate and necessary" and issued regulations to control emissions of those pollutants. Several states and industry and labor groups challenged the regulations in the D.C. Circuit, which upheld them by a 2-1 vote. Mon, 06 Jul 2015 13:21:10 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E9AD7C94-A2F8-D8F4-D906BCB39D354B5B http://www.progressivereform.org/CPRBlog.cfm?idBlog=E9AD7C94-A2F8-D8F4-D906BCB39D354B5B Today's BP settlement is great news for the Gulf Coast economy, which still suffers mightily from the damage BP and its contractors caused. The President and his Department of Justice deserve credit for hammering out this deal, and keeping their focus on the victims of what the President rightly calls the "worst environmental disaster America has ever faced." If the settlement is to have the impact on the region that we all hope it will, we'll need to be sure that the money is well spent, not siphoned off for political favors or otherwise misused. Thu, 02 Jul 2015 13:47:24 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1CA212AF-A738-6B5A-B39BCC1333D6D717 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1CA212AF-A738-6B5A-B39BCC1333D6D717 Editors' Note: This is the sixth in a series of posts on measuring progress toward the 2017 interim goal of the Bay TMDL. The first five posts cover the region as a whole, and then Maryland, Pennsylvania, New York, and Virginia, Future posts will explore the progress of the two remaining jurisdictions. Like New York, the State of West Virginia can seem a bit distant from the Chesapeake Bay and the process of implementing the Bay Total Maximum Daily Load (Bay TMDL). But, even though most of the state's waterways drain into the Ohio River rather than to the Bay, some of the fastest growing counties in West Virginia are those surrounding the Potomac headwaters, and a short drive to the Bay itself. West Virginia has experienced at least some success to date in reducing nutrient and sediment pollution under the Bay TMDL, but recent information from the Chesapeake Bay Program and the U.S. Environmental Protection Agency (EPA) paints a confusing picture of this progress. Another similarity between the portions of West Virginia and New York within the Bay watershed is the geography and various sources of pollution. The share of nitrogen pollution coming from each state's vast forests and ambient air is nearly identical at about 29 percent of the total (the highest percentage among the seven jurisdictions), and the agricultural sector in each state represents between 40 percent and 50 percent of total nitrogen pollution. Additionally, West Virginia, like New York, has made the decision to overemphasize reductions - relative to their share of the pollution problem - from the agricultural sector in its state Watershed Implementation Plan (WIP) to meet the goals of the Bay TMDL. Wed, 01 Jul 2015 12:11:43 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E5B6A19E-A581-35D3-9D31D760FEEF80EC http://www.progressivereform.org/CPRBlog.cfm?idBlog=E5B6A19E-A581-35D3-9D31D760FEEF80EC President Obama's approval rating is up to 50 percent for the first time in two years after a stellar period of national reconciliation and the safeguarding of Obamacare, his signature, and truly momentous, achievement. The president, in fulfillment of his noble promises to help the middle class, is about to put his weight behind a Labor Department rule that would hike minimum earnings needed to earn overtime pay, a proposal that would affected 5 million Americans. These accomplishments remind people why they voted for him in the first instance and returned him to office by a very comfortable margin. But for those of us who believe that people should be able to go to work without getting sick or dying, a remarkable series of stories by the Center for Public Integrity can only strengthen the despair that has been building slowly since the president took office. The series describes an Occupational Safety and Health Administration (OSHA) so impotent with respect to pervasive workplace hazards that it is fair to ask whether this 45-year old institution is fundamentally irrelevant to most American workers. Tue, 30 Jun 2015 18:57:42 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C0BCA986-D1E4-2C21-88158B41D25B2D9C http://www.progressivereform.org/CPRBlog.cfm?idBlog=C0BCA986-D1E4-2C21-88158B41D25B2D9C In Michigan v. EPA, the Supreme Court reviewed the Environmental Protection Agency's decision to regulate power plants under section 112 of the Clean Air Act. Section 112 is the provision regulating toxic air pollutants, such as mercury. The question before the Court was whether EPA reasonably interpreted the Clean Air Act to allow EPA to decline to consider costs in deciding whether to regulate power plants under section 112. The Court held that it was not reasonable to interpret the Act in this way. Thus, from the Court's decision, we know that EPA must consider costs in deciding whether to regulate power plants under section 112. There are, however, important questions that remain: Tue, 30 Jun 2015 11:55:22 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B1A3BCD4-C20B-289C-88A0ECBA0C9E1216 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B1A3BCD4-C20B-289C-88A0ECBA0C9E1216 Yesterday, the Supreme Court in Michigan v. EPA threw out EPA's regulations protecting the American public from mercury and other hazardous emissions of power plants. In another instance of judicial activism by the Roberts court, the majority refused to defer to EPA's decision to ignore costs in deciding whether to regulate power plant emissions. The decision turned on the meaning of the word "appropriate" in a section of the Clean Air Act that addressed hazardous air pollutant (HAP) emissions from fossil fuel-fired power plants. Before EPA subjected HAPs emissions from power plants to stringent technology-based regulations, it had to decide whether regulating those emissions was "appropriate and necessary," given the other controls that the statute imposed on power plants to reduce acid rain. Tue, 30 Jun 2015 11:33:13 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B0D88F20-BF5D-C9FF-07FF674539A06A12 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B0D88F20-BF5D-C9FF-07FF674539A06A12 Today the Supreme Court blocked a key effort by the Obama administration to keep unsafe levels of mercury and other toxins from spilling into our air. The ruling, issued in Michigan vs. EPA, is a loss for the EPA and public health advocates. But the damage can be contained and will hopefully not prevent the agency from re-issuing its so-called Mercury Rule under a rationale that can satisfy the Court's newly divined decision-making standards. At issue was whether the Clean Air Act required the EPA to consider costs to industry when it made the decision to regulate mercury, a known neurotoxin. Because the Act does not mention cost considerations at this early stage of rulemaking, the EPA reasoned such review was unnecessary. At any rate, the EPA had explicitly considered costs in the second stage of analysis when it chose the actual numeric pollution limit. And what it found was that the benefits of the Mercury Rule would exceed the costs by tens of billions of dollars. Writing for the majority, Justice Antonin Scalia found that the EPA's failure to consider costs in the early stage of the rule doomed the whole enterprise. The EPA's decision-making process, according to the Court, did not meet the Act's requirement of considering all "appropriate and necessary" information. That's disappointing, but the loss could have been much worse. In the briefing, opponents of the mercury rule argued to require full cost-benefit analysis rather than simply considering costs. Opponents had also argued that EPA should not be able to count all the indirect health benefits (from reductions in accompanying pollutants) that come from mercury limits. Funny those opponents of the rule had no problem counting the indirect costs that come from mercury limits. The Court's decision did neither of these two things. And that leaves open the possibility that the Obama Administration can still keep mercury out of our air. If the courts allow the Mercury Rule to stand until EPA is able to revise its analysis, the agency can then insert a consideration of costs at the earlier stage of its examination. That's only fair. Regulations to protect Americans from mercury pollution have been in the works for a long time. Rules to regulate mercury emissions from coal-fired power plants and their co-pollutants were first proposed by the EPA under the Bush Administration. The Obama Administration's efforts to move the mercury rule would result in between 4,200-11,000 fewer premature deaths a year, 4,700 fewer heart attacks and 130,000 fewer asthma attacks, among other public health benefits. The Court's decision was narrow enough to preserve the rule and its vital contribution to public health and the environment. Mon, 29 Jun 2015 20:57:39 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9187D401-95C1-3872-F88F24CD68C9A53E http://www.progressivereform.org/CPRBlog.cfm?idBlog=9187D401-95C1-3872-F88F24CD68C9A53E In a sweeping display of judicial activism the Supreme Court has made it much harder for the EPA to protect Americans from the dangers of exposure to mercury emissions. The Supreme Court today tossed out EPA's regulations protecting the American public from mercury and other hazardous emissions of power plants. Justice Scalia refused to defer to EPA's decision to ignore costs in deciding whether to regulate power plant emissions. Unfortunately, this means that EPA will have to go back to the drawing board and make a fresh determination whether it is appropriate to regulate mercury emissions from power plants after considering the costs of the regulations. Fortunately, EPA has already determined that the benefits of the regulations far outweigh the costs. The agency just needs to formalize that determination after allowing public comment on it. The Supreme Court's decision will not have much of an impact in states that have already established stringent emissions limitation for mercury under their own laws. But in states like Ohio and Texas, old power plants that have been belching large quantities of mercury and other hazardous pollutants into the air just got an inappropriate reprieve. Mon, 29 Jun 2015 12:12:04 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7EBD4198-F7C1-F8DB-DCEDF615CABD6287 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7EBD4198-F7C1-F8DB-DCEDF615CABD6287 Earlier this week, the House of Representatives passed H.R. 2576, an update to the long-outdated Toxic Substances Control Act (TSCA), which governs regulation of toxic chemicals. CPR Member Scholar and University of Richmond Law School professor Noah Sachs and CPR Executive Director Matthew Shudtz wrote a piece for The Hill, highlighting some crucial problems with the bill the House passed. They note: Both bills, for example, require EPA to move through the backlog of untested chemicals and make safety determinations. A safety determination is a ruling by the agency about whether the chemical poses 'unreasonable risk' to human health or the environment - a first step for further regulatory action. But astoundingly, the House bill requires the agency to initiate only 10 chemical evaluations per year 'subject to the availability of appropriations,' and the Senate bill requires EPA to make these safety determinations for only 25 chemicals over five years. Worse yet, the key phrase 'unreasonable risk' is left undefined in both bills. What that means is that when EPA does get around to taking regulatory action, it will be challenged in court. We will likely see a decade of litigation before the courts sort out the ambiguity and decide how much risk is 'unreasonable.' To read the entire piece, click here. Fri, 26 Jun 2015 18:13:58 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F1246987-EBFF-FCC5-A1DFC8D6DC041486 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F1246987-EBFF-FCC5-A1DFC8D6DC041486 The Supreme Court's decision in King v. Burwell is, of course, most important for its central holding that the Affordable Care Act's federal subsidies are available even on federally established health exchanges. The decision preserves health insurance subsidies for millions of people who have begun to benefit from them and avoids the ridiculous spectacle of taking the subsidies away based on four words ("established by the State") in a lengthy and complicated statute. But for those who, like me, are not health care experts but teach and write in environmental law, the majority opinion by Chief Justice Roberts is principally worth studying for its approach to statutory interpretation. Especially for those following EPA's impending regulation of greenhouse gases from power plants under section 111 of the Clean Air Act, which has already drawn attacks based on a purported lack of statutory authority, the Court's opinion in King v. Burwell strikes some familiar (and possibly unpleasing) chords. First, the Court in King v. Burwell declined to apply the two-step Chevron framework. Fri, 26 Jun 2015 17:54:21 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F0711071-F523-A4D1-6D9EB7BF4FEC6536 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F0711071-F523-A4D1-6D9EB7BF4FEC6536 Anyone who cares about the development of sound public policy has grown distraught over congressional gridlock. The House and Senate are dysfunctional to an extent not seen in modern times. Neither is able to develop bipartisan legislation to deal with a slew of urgent social problems, from immigration and the minimum wage to the strengthening of outdated health and safety laws. But the kneejerk glee that accompanies any bipartisan action regardless of content is just as dangerous. Take, for example, the bill to "reinvigorate" the Toxic Substances Control Act (TSCA) that just passed the House by a vote of 398 to 1. The sad truth is that we don't require enough testing on toxic chemicals before chemical manufacturers market them in this country, and public health has paid a heavy price for this omission. It's difficult to think of more than a very small handful of industrial chemicals that have proved less toxic than we originally thought; instead, the more we learn, the more dangerous the vast majority of toxic chemical mixtures prove to be. TSCA (pronounced like the opera Tosca) was written in 1976 and is overdue for an overhaul. But the House bill will not solve the acute problems caused by toxic chemicals in the environment, and could even make matters much worse. This flawed product will meet a Senate bill that is also quite weak, setting up the potential for a "race to the bottom" in conference. Industry advocates are clearly counting on this dynamic when conferees meet. And rumor has it that the White House has signaled presidential eagerness to sign a bill, eliminating that critical counterweight to a bipartisan sell-out. Thu, 25 Jun 2015 16:47:21 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BA8D7CBB-A4C6-3EA2-62B4E3280373487D http://www.progressivereform.org/CPRBlog.cfm?idBlog=BA8D7CBB-A4C6-3EA2-62B4E3280373487D Editors' Note: This is the fifth in a series of posts on measuring progress toward the 2017 interim goal of the Bay TMDL. The first four posts cover the region as a whole, and then Pennsylvania, Virginia, and Maryland. Future posts will explore the progress of the remaining three jurisdictions. So far, we have evaluated progress of the three core jurisdictions in the Chesapeake Bay Watershed in reducing nutrient and sediment pollution under the Chesapeake Bay Total Maximum Daily Load (Bay TMDL). These "big three" states and members of the Chesapeake Bay Commission are the biggest contributors to the pollution problem affecting the Bay and, at least in the case of Maryland and Virginia, appear to have the most at stake if the Bay itself is finally restored. But we now turn to the region's periphery, where the big challenge may be how to motivate the people and policymakers in the Bay's hinterlands - such as Upstate New York. Whatever their motivation, officials in New York State must get their act together quickly. Looking at data from the Chesapeake Bay Program's 2014 Model run, New York ranks right up there with Pennsylvania as among the biggest laggards in the watershed. These are the only two states that the Bay Model indicates have not yet achieved the 2017 interim phosphorus reduction goals. And New York is dead last among states in reducing its nitrogen loads on a percentage basis, which have actually increased since 2009. The only good news, if it can be referred to as such, is that New York is a fairly small contributor to Bay pollution at about five percent of the total nutrient loads to the watershed. Wed, 24 Jun 2015 12:14:01 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7D468922-A631-8094-2DA6F655E3A99FC5 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7D468922-A631-8094-2DA6F655E3A99FC5 When your public approval rating has hovered at or below 20 percent for the last several years, maybe the last thing you should be doing is maligning other government institutions. That didn't stop a group of Senators from spending several hours doing just that today during a joint hearing involving the Senate Budget and Homeland Security and Government Affairs Committees. The joint hearing was nominally about a nonsense regulatory reform proposal called "regulatory budgeting" (for more on that, see here), but it quickly devolved into a no-holds-barred hate session directed at federal agency employees, as the upright and honorable members of the "world's greatest deliberative body" repeatedly attacked the prevailing "culture" at agencies. Tue, 23 Jun 2015 18:09:04 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=567BBB76-9459-3118-42473DED1B5810DC http://www.progressivereform.org/CPRBlog.cfm?idBlog=567BBB76-9459-3118-42473DED1B5810DC Every day, millions of consumers endure Walmart's crowded parking lots and cramped aisles for the chance to buy retail goods and groceries at low prices. Perhaps some visitors find value in the prospect of starring in the next caught-on-camera video like last week's hit filmed at a store in Beech Grove, Indiana. But the lower prices Walmart offers come at a high cost elsewhere. According to a new report by the Food Chain Workers Alliance, Walmart's low cost strategy induces poor labor and environmental practices throughout its food supply chain, and these hidden costs are passed back to workers, suppliers, the environment, and communities. "Walmart's business model . . . . creates the conditions to force suppliers to cut costs, which often means cutting wages for workers, lowering prices to farmers, and externalizing costs on to the environment and the communities surrounding the suppliers' business," the report states. Tue, 23 Jun 2015 12:58:27 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4B609EEA-07A1-61F4-09EB89E2B52DEBFE http://www.progressivereform.org/CPRBlog.cfm?idBlog=4B609EEA-07A1-61F4-09EB89E2B52DEBFE For decades, so-called regulatory "reformers" have backed up their sales pitches with the same basic promise: Their goal is not to stop regulation per se but to promote smarter ones. This promise, of course, was always a hollow one. But it gave their myriad reform proposals - always involving some set of convoluted procedural or analytical requirements designed to surreptitiously sabotage the rulemaking process - some shred of legitimacy, while insulating the proponents against any public backlash that might follow from such cynical attacks on broadly popular public health, safety, and environmental programs. If the real motivation behind the "regulatory reform" movement wasn't clear before, then tomorrow's hearing before the Senate Homeland Security and Government Affairs and Budget Committees on "regulatory budgets" ought to peel away the last of any lingering doubts. The idea behind "regulatory budgeting" (or "regulatory pay-go," as it is sometimes known) is that Congress would set a hard cap on total regulatory costs, and once the cap has been met, agencies would be prohibited from issuing any rules until their costs have been offset by the removal of existing regulations. Its proponents claim that this cap on regulatory costs somehow reflects all the safeguards our country "needs" or "can afford." Ask them to substantiate that claim, though, and all you'll get is a lot of arm waving and vague platitudes. Mon, 22 Jun 2015 18:44:59 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=24457D50-9A5C-9B13-0D4B7AD94C4F169F http://www.progressivereform.org/CPRBlog.cfm?idBlog=24457D50-9A5C-9B13-0D4B7AD94C4F169F Last week, OSHA issued noteworthy citations against a poultry slaughtering facility in Delaware. The agency is using its General Duty Clause to hold Allen Harim Foods in Harbeson, Delaware responsible for ergonomic hazards that plague the entire industry - hazards involving the repetitive cutting and twisting motions that lead to musculoskeletal disorders like tendonitis and carpal tunnel syndrome. This case follows another from October of last year, when, in response to a complaint by workers and their advocates from the Southern Poverty Law Center, OSHA cited Wayne Farms in Jack, Alabama for General Duty Clause violations, also related to ergonomic hazards. As it turns out, the Wayne Farms case was a shot across the bow for an industry that subjects its workers to punishingly repetitive work in a variety of situations. Today's announcement may be evidence of a trend developing in OSHA enforcement. Mon, 22 Jun 2015 14:45:06 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1BAFE1CC-94E8-335E-E8D9FB015FD96969 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1BAFE1CC-94E8-335E-E8D9FB015FD96969 Editors' Note: This is the fourth in a series of posts on measuring progress toward the 2017 interim goal of the Bay TMDL. The first three posts cover the region as a whole, and then Pennsylvania and Virginia. Future posts will explore the progress of the remaining four jurisdictions. Judging from the Chesapeake Bay Program's modeling of pollution in the Chesapeake Bay, Maryland is a tale of two states when it comes to reducing its polluting emissions. On the one hand, the state is clearly lagging in reducing nitrogen pollution, one of two main contributors to the algal blooms that lead to "dead zones" in the Bay. On the other hand, it has made some progress. Indeed, Maryland's experience appears to be quite similar to that of Virginia, a leader in reducing nitrogen to date, in that it owes most of its success to significant early investments in wastewater treatment plant upgrades. Like Virginia, Maryland has committed well over $1 billion to installing advanced technology on its major wastewater treatment plants, albeit a few years later than Virginia. In an important respect, however, Maryland is unlike Virginia, or any state for that matter. Maryland has crafted its Watershed Implementation Plan (WIP) for meeting the Chesapeake Bay Total Maximum Daily Load (TMDL) with an ambitious "all of the above" strategy that seeks significant pollution reductions broadly across each main sector. Unfortunately, the data so far indicates that this strategy has yet to really bear fruit, and it is too early to tell if it will in time for the 2025 TMDL deadline. Ambition has been in evidence in Maryland's plan since the Obama Administration established the Bay TMDL in 2010. In fact, former Governor O'Malley's first WIP called for implementing practices to achieve 70 percent of its reduction targets by 2017, not just the 60 percent required, and it also anticipated implementing all practices by 2020, instead of 2025. Alas, Maryland quickly backtracked, perhaps after understanding just how difficult a task this might be. Mon, 22 Jun 2015 12:36:16 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1714D5D4-C6F8-F454-C8ABBEFAB87E76C0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1714D5D4-C6F8-F454-C8ABBEFAB87E76C0 Regular readers of this blog are already well acquainted with her, but for everyone else, CPR is pleased to introduce our new workers' rights policy analyst, Katie Weatherford. Weatherford joins CPR after several years with the Center for Effective Government, where she was a regulatory policy analyst and advocated for strong regulations to protect public health, safety, and the environment. "Katie is insightful, thorough, and poised to be a great fit for CPR," says Executive Director Matthew Shudtz, "along with our Scholars, I'm looking forward to working with her to fight for stronger worker health and safety protections." Among her achievements at CEG, Weatherford produced a report examining OSHA's whistleblower protection program and proposing model state legislation to protect workers from retaliation. Her expertise on the subject will be invaluable as she takes on the job of working with CPR's allies to help promote the policy reforms outlined in our groundbreaking manual, Winning Safer Workplaces: A Model for State and Local Policy Reform. Fri, 19 Jun 2015 20:11:43 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8CE0E252-DC68-9EC6-5BE6F0552682B35C http://www.progressivereform.org/CPRBlog.cfm?idBlog=8CE0E252-DC68-9EC6-5BE6F0552682B35C ROME - On my first visit to Vatican City, before my meeting with Michelangelo, I greeted the Pope via the city's ubiquitous souvenir stands. I love this stuff. You can try on the "Papa Francisco" kitchen apron and imagine the pontiff's smile beaming over your Spaghetti Bolognese. Or gently joggle the pate of a Pope Francis bobble-head. Postcards are everywhere, of course. And for €10 you can score the annual "Hot Priests Calendar," featuring hunky young men of the cloth. In this "G-rated" feature, priests from all over the world help promote the Eternal City and breathe into the Catholic brand a wisp of hipness, to say nothing of hotness. But back to the Pope. This week Pope Francis released the much anticipated encyclical on the environment and climate change. And there's a connection between that, the souvenir aprons, and even the hot priests. I'll leave it to others to examine the language of this compelling and lyrical document. Suffice it to say that, in terms of substance, the edict says nothing we don't already know. For a generation, experts and activists have hammered the shackles of climate, pollution, and poverty within earshot of anyone willing to hear. What is new - and very exciting - is that now the head of the Roman Catholic Church, an extremely popular and charismatic figure, is calling out this injustice and demanding that world leaders take action. Thu, 18 Jun 2015 16:31:48 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5183431D-FBD7-3589-BCA091A0791F2439 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5183431D-FBD7-3589-BCA091A0791F2439 We recently explored how Virginia's progress toward meeting the 2017 interim goal for the Chesapeake Bay Total Maximum Daily Load (Bay TMDL) is mostly the product of decades' old financial commitments. So, we might hope to see much of the same from Pennsylvania, a fellow member of the Chesapeake Bay Commission since 1985. Unfortunately, despite decades of participation in the various agreements to clean the Bay, Pennsylvania's lack of progress is the single biggest reason to worry about the future health of the Chesapeake. Although no part of Pennsylvania borders the Chesapeake, much of the state is in the Bay watershed. Its agriculture sector alone contributes more than one-quarter of all nitrogen pollution in the watershed. Put another way, this one sector contributes more nitrogen than the entire Commonwealth of Virginia, or more than every sector in Delaware, the District of Columbia, Maryland, and West Virginia combined. That's why the single most discouraging fact facing policymakers, regulators, and advocates in the Bay is that nitrogen from the agriculture sector in Pennsylvania has actually increased by about 4 percent between 2009 and 2014 according to the most recent data from the Chesapeake Bay Program's Model, whereas the goal is to reduce such pollution by about 26 percent by 2017. Wed, 17 Jun 2015 13:50:05 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=183DEA5A-CF99-687D-4BC0425A25D7565E http://www.progressivereform.org/CPRBlog.cfm?idBlog=183DEA5A-CF99-687D-4BC0425A25D7565E This is the second in a series of posts to explore progress in cleaning up the Chesapeake Bay, as reflected in recent data from the Chesapeake Bay Program's elaborate computer model of the Bay, which accounts for what the states are actually doing to reduce pollution. Read the first post, taking a look at the overall region's progress, here. Judging solely from the Chesapeake Bay Program's Watershed Model, the Commonwealth of Virginia is doing a pretty good job of reducing its pollution "contribution" to the Bay. The most recent data (2014) from the Model indicate that the Commonwealth has achieved 97.6 percent of its nitrogen reduction goal for 2017 and 150.4 percent of its phosphorus reduction goal, three years ahead of schedule. Wed, 17 Jun 2015 13:15:09 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=16FF46CF-B844-A575-325AB057FF47E564 http://www.progressivereform.org/CPRBlog.cfm?idBlog=16FF46CF-B844-A575-325AB057FF47E564 This morning CPR Scholar and George Washington University Law School professor Robert Glicksman will testify in support of EPA's proposed rule to regulate ozone. The Hearing, held by the House Energy and Commerce Committee's Subcommitee on Commerce, Manufacturing and Trade will focus on the potential impacts of the proposed ozone rule on manufacturing. Glicksman's testimony corrects misinformation about the ozone rule's potential negative impact on manufacturing. He notes, My testimony makes four key points: A strong national ozone pollution standard that fulfills the public health goals of the Clean Air act will deliver significant benefits for human health and the environment. Regulations, such as the Environmental Protection Agency's (EPA) pending ozone standard, can and do provide important economic benefits for U.S. businesses, including those in the manufacturing sector. A frequently cited study purporting to find catastrophic economic effects from a strong ozone standard is flawed and fails to provide a reliable accounting of the rule's potential impacts. To the contrary, the available evidence confirms that strong national standards for ozone pollution are not an impediment to economic growth. To read Glicksman's full testimony, click here. Tue, 16 Jun 2015 10:54:56 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DE7B643F-D61F-C1B5-07D6547F302C8B10 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DE7B643F-D61F-C1B5-07D6547F302C8B10 In the shadow of the upcoming Supreme Court decisions on Obamacare and same-sex marriage is an important environmental case that has important implications for the health of women of childbearing age in America. The Court will decide whether to uphold the Environmental Protection Agency's stringent limitations for emissions of the toxic metal mercury from the nation's coal- and oil-fired power plants. And as with the Obamacare case, the case turns on a matter of language: the single word, "appropriate." If the Court adheres to a long line of its own precedents on how courts are to interpret statutes that delegate decisionmaking power to regulatory agencies, the case should be an easy win for EPA. If, however, some of the Justices cannot resist the temptation to impose their own policy preferences on EPA, the upcoming decision could be a very bad one for environmental regulation and, more importantly, for millions of expectant mothers in the future. All coal contains small amounts of mercury, and that contaminant is not consumed when the coal is burned. Consequently, all coal-burning power plants send small amounts of mercury up their smokestacks. Eventually, the mercury falls back to earth, and is converted by natural processes to methyl mercury, a chemical that is a potent neurotoxin in adults, children and fetuses. There is no known "safe" level of methylmercury in the bloodstream below which it no longer demonstrates these effects. Mon, 15 Jun 2015 10:56:53 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AB0CCE6C-965B-F1CF-06BABB4B6F0E2028 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AB0CCE6C-965B-F1CF-06BABB4B6F0E2028 Further reflections on the April 16th Oral Argument in Murray v. EPA and West Virginia v. EPA In an earlier blog entry, I predicted that the D.C. Circuit will refuse, on standard administrative law grounds, to consider the arguments of the petitioning states and coal and utility companies for overturning EPA's proposed Clean Power Plant rule. In short, a challenge to an on-going rulemaking is not ripe for judicial review until the agency issues its final rule. But whether I am wrong or not, the court will surely reach the merits sooner or later, either now, or after the inevitable new lawsuit is filed when the rule is finalized. What is clear, however, is that there is just no way of escaping administrative law in this case. Like the jurisdictional issue, the merits would also seem to turn on a question of administrative law, that of the permissible scope of the familiar Chevron doctrine that directs a court to defer to an agency's reasonable construction of an ambiguous statutory provision. Mon, 27 Apr 2015 17:11:04 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DD018CD8-BC1E-F2F3-3D8FD9EC6AA7E1CD http://www.progressivereform.org/CPRBlog.cfm?idBlog=DD018CD8-BC1E-F2F3-3D8FD9EC6AA7E1CD The Bureau of Labor Statistics (BLS) has reported that the occupational fatality rate of 3.3 deaths per 100,000 workers for 2013 was the lowest reported rate since the BLS started using its current tracking methodology in 2006. That's good news, but we've got a very long way to go still. The simple truth is that workers are not as safe as they could and should be. Although the fatality rate is down, there were still 4,585 occupational fatalities in 2013. The principal method for making workers safer is regulation and enforcement by the Occupational Health & Safety Administration. While about 40 percent of the deaths resulted from motor vehicle-related accidents, which is outside of OSHA's regulatory authority, OSHA has tried to address the job risks within its jurisdiction by targeting the most dangerous industries and imposing the maximum penalties in appropriate cases. No doubt these efforts have resulted in the reported fatality reductions. To do better, however, OSHA faces a number of challenges. Mon, 27 Apr 2015 15:33:16 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D97FA0D0-01F1-EDD5-600CC806AD9B617F http://www.progressivereform.org/CPRBlog.cfm?idBlog=D97FA0D0-01F1-EDD5-600CC806AD9B617F Nearly five years ago, BP introduced a flippered mammal Americans never knew we had: the Gulf Walrus! If you don't know the story, you should, because the tale of the Gulf Walrus tells you everything you need to know about what was wrong with deepwater drilling back in 2010, and worse, still is. The story goes like this: After the Deepwater Horizon oil rig exploded, leaving 11 workers dead and a gusher of oil billowing a mile under the sea, a watchdog group called the Public Employees for Environmental Responsibility unearthed the regional oil spill response plan BP had submitted to the Department of Interior as part of the process to begin drilling. The document was riddled with omissions, errors, and implausible assumptions. There was no plan for a failed "blowout preventer," no plan for oil reaching the coast, no plan for oil-soaked turtles and birds. But, BP's regional plan did pay lip service to such "Sensitive Biological Resources" as "Sea Lions, Seals, Sea Otters [and] Walruses." The media howled. Congressional hearings were held. And in New Orleans, "Save the Gulf Walrus" t-shirts sold like fried oysters. What had happened, it turned out, was that BP had been so eager to gets its rig in the water, that it had cribbed from an earlier plan intended for Arctic drilling. No one had bothered to change the details, and the Department of Interior was happy to give its rubber stamp of approval. And thus an imaginary, large-flippered, sea mammal was born. Thu, 23 Apr 2015 14:14:37 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=08A7E085-FF1B-B426-BAB22550355FFB4B http://www.progressivereform.org/CPRBlog.cfm?idBlog=08A7E085-FF1B-B426-BAB22550355FFB4B Urban parks are a much-prized resource. They provide city dwellers with safe places to relax, walk their dogs, supervise their children at play, plant gardens, contemplate nature, pursue recreational activities, and escape the multiple stresses of urban life. At the same time, however, particularly in prosperous cities where open land is scarce and real estate values are high and growing ever-higher, some urban parks are under threat. Where they feel they can find legal avenues to do so, developers who wish to acquire land on which to construct new structures for private use often target parcels of parkland for purchased and development. Wed, 22 Apr 2015 16:32:50 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DA23E728-0989-3DC0-1CF3673F09C8E1EE http://www.progressivereform.org/CPRBlog.cfm?idBlog=DA23E728-0989-3DC0-1CF3673F09C8E1EE Forty-five years ago I joined hundreds of people in Fairmont Park in Philadelphia for the first Earth Day. The sad state of the environment on that day was all too apparent. The Cuyahoga River in Cleveland was so polluted that it caught on fire the year before. The 1969 Santa Barbara oil spill is still the third largest oil spill in American history. The air pollution in America's cities - palpable air - had reached epidemic proportions. Rachael Carson's book, Silent Spring, detailing the adverse impact of toxic chemicals on the environment was eight years old, having been read by hundreds of thousands of people. In today's gridlocked political environment, it is worth asking whether Earth Day still provides any lessons for the continuing struggle to protect the environment. Wed, 22 Apr 2015 11:25:03 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CF26C894-A547-3027-1835AFBDB909E17C http://www.progressivereform.org/CPRBlog.cfm?idBlog=CF26C894-A547-3027-1835AFBDB909E17C Last week, the D.C. Circuit heard oral argument on a highly unusual attempt to short-circuit EPA's rulemaking process for greenhouse gas regulation of existing power plants. Despite statutory and constitutional hurdles to premature litigation, the petitioners - the coal-fired industry and coal-producing states - argued that the importance of the proposed rule justifies court intervention. The rule's importance is precisely why it is critical that the agency complete the administrative process. That industry groups will file lawsuits over EPA's greenhouse gas initiatives is unremarkable. After all, litigation is to be expected: frequently, both the regulated community and public interest groups challenge major environmental rules. Nor is it unusual that interested parties may attempt to hijack a regulatory policy before a rule is finalized. Scholars have documented (for example, here, here, and here) the many contacts between agencies and regulated industries that occur at various stages of a rules' development. What is more, contacts - from any interested party - are perfectly legal provided the agency discloses anything it relies on in support of the rule. Congressional pressure and Presidential direction may also be brought to bear on agencies during their decisionmaking processes. Tue, 21 Apr 2015 17:39:09 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A9077A93-0EF5-5F9F-104F13F1F1902233 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A9077A93-0EF5-5F9F-104F13F1F1902233 The Center for Progressive Reform is excited to welcome its new policy analyst, Evan Isaacson who will focus on the Chesapeake Bay. Isaacson succeeds Anne Havemann, and will continue her sterling work on the intersection of state and federal environmental regulations and the Bay. Mr. Isaacson joins CPR after eight years on staff at the Maryland General Assembly, where he served as an analyst in the Natural Resources, Environment, and Transportation workgroup, as well as counsel to the Joint Committee on Administrative, Executive, and Legislative Review. According to CPR Executive Director Matt Shudtz, "Evan has been involved in practically every important legislative effort affecting the Bay in Maryland for the past 7 years. We are looking forward to tapping into his expertise to continue Anne Havemann's great work in watchdogging federal and state agencies tasked with protecting the Bay." Mon, 20 Apr 2015 17:21:41 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=74E7DFC1-BFE0-9231-DA34D5A60B6C2550 http://www.progressivereform.org/CPRBlog.cfm?idBlog=74E7DFC1-BFE0-9231-DA34D5A60B6C2550 Reflections on the April 16th Oral Argument in Murray v. EPA and West Virginia v. EPA In a rulemaking there is a provision for judicial review, right, it's not going to be a question that's avoided . . . when the rule comes out, it's going to be challenged, we're going to get to it. Why in the world would we resort to an extraordinary writ, which we have never used before? So it really is quite unusual. - Judge Griffiths, remarking on the petitioner's claim to jurisdiction in Murray Energy v. EPA and West Virginia v. EPA, D.C. Circuit Court, Oral Argument, April 16, 2015. This statement by Judge Griffiths during Thursday's oral argument on the states' and utility companies' challenge to EPA's proposed Clean Power Plan rule pretty much sums up the skepticism voiced by he and Judge Kavanagh in hearing the case prior to EPA's promulgation of a final rule. Despite the petitioners' efforts to paint their challenge as justified by extraordinary aspects of the case, at least these two judges seemed to be having a hard time understanding the case as posing anything other than a garden-variety question of administrative law. As a result, while it is always somewhat risky to predict a case outcome based upon oral argument, all clues point to a 2 - 1 majority (Judge Henderson dissenting), dismissing the appeal. It could be a short-lived victory, however, as in contrast to the jurisdictional question, the panel's views on the merits of the petitioners' challenge - that EPA lacks authority to regulate existing power plants under Section 111(d) of the Clean Air Act considering the agency's prior regulation of the mercury emissions of such plants - was anything but clear. Mon, 20 Apr 2015 11:36:07 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=688E613C-CA5C-1626-5FCE32B0615629E8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=688E613C-CA5C-1626-5FCE32B0615629E8 Growing up in Port Neches, Texas, long before anyone ever heard of Earth Day, it was not hard to be an environmentalist. When my father announced that the family would be moving to Port Neches, he tried to soften the blow to his 13-year-old son by stressing the fact that we would be living across the street from the city park and that the Neches River ran along one end of the park. For the remainder of the summer, I could go fishing any time I wanted. Fri, 17 Apr 2015 17:04:43 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D9CF4D84-EDC9-EDAB-E7947CE9CFCE8038 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D9CF4D84-EDC9-EDAB-E7947CE9CFCE8038 Rena Steinzor Steps Down after Seven Years at Helm, Succeeded by Loyola University New Orleans College of Law Professor, Former EPA Official The board of directors of the Center for Progressive Reform today announced the appointment of Robert R.M. Verchick to be the organization's third president, succeeding Rena Steinzor, who has served in the post for the past seven years. Verchick holds the Gauthier~St. Martin Eminent Scholar Chair in Environmental Law at Loyola University New Orleans College of Law, and is also the Faculty Director of Loyola's Center for Environmental Law. In addition, he is a Senior Fellow in Disaster Resilience Leadership at Tulane University. He is an expert in climate change law, disaster law, and environmental regulation. In 2009 and 2010, he served as Deputy Associate Administrator for Policy at the U.S. Environmental Protection Agency. In that role he helped develop climate adaptation policy for the EPA and served on President Obama's Interagency Climate Change Adaptation Task Force. In the fall of 2012, he researched climate adaptation policies in India as a Visiting Scholar at the Centre for Policy Research in New Delhi, supported by a Fulbright Award. Verchick succeeds Professor Rena Steinzor of the University of Maryland's Carey School of Law, who has served in the post since January of 2008. Steinzor continues as a Member Scholar of the organization. "Rob Verchick is the ideal choice to be CPR's next president," Steinzor said in announcing the transition. "He brings a wealth of policy experience - in government and in academia, and more than that he brings the energy, talent, and enthusiasm to the task that I know will make him a great success. I've enjoyed my work as President of CPR more than words can express, and I'm particularly proud to have been able to guide the organization to the point that a second generation of organizational leaders, led by Rob, is now taking on the challenge of guiding the organization. That's a milestone for us, as it would be for any organization." Thu, 16 Apr 2015 11:11:54 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=99ACF386-BA48-77DD-F7FDFF3ED00CAFB9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=99ACF386-BA48-77DD-F7FDFF3ED00CAFB9 This morning, the House Judiciary Committee is holding a markup on the Regulations from the Executive in Need of Scrutiny Act of 2015, or REINS Act (H.R. 427). Even among the many extreme antiregulatory bills that Congress has considered this session, the REINS Act still stands out for its breathtaking audacity. If enacted, this bill would block the most important environmental, safety, and public health regulations from taking effect unless Congress affirmatively approves them within the extraordinarily short period of 70 session days or legislative days. It is not a stretch to say that many regulations that are now benefitting millions of Americans - such as those limiting lead in gasoline or requiring air bags in automobiles - would never have seen the light of day had the REINS Act been in place. Versions of this bill have been introduced in both chambers of Congress over the last several sessions, but fortunately none have been enacted into law. In response to this bill, 83 of the nation's leading experts on administrative law and regulatory policy have signed on to a letter to the members of Congress expressing their concerns with the REINS Act. Among the concerns described in the letter are that "the REINS Act would replace the strengths of agency rulemaking with the weaknesses of the legislative process" and that the bill is "counter-democratic." Twenty-six CPR Member Scholars were among the experts to sign on to the letter. Wed, 15 Apr 2015 11:08:38 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=66135B1F-A2DF-5B00-F551263AA4C10AA3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=66135B1F-A2DF-5B00-F551263AA4C10AA3 Background: Tomorrow, the full House Judiciary Committee will be holding a markup of the H.R. 1759, the All Economic Regulations are Transparent Act of 2015 (ALERT Act), sponsored by Rep. John Ratcliffe (R-Tex.). The House of Representatives considered a similar bill during its last session. (The hearing is also noteworthy, because the committee will be marking up H.R. 427, the Regulations from the Executive in Need of Scrutiny Act of 2015, or REINS Act. For more information on the REINS Act, see here.) What the ALERT Act does: The bill would impose a series of new burdensome reporting requirements on agencies and the White House Office of Information and Regulatory Affairs (OIRA) regarding the progress and impacts of the agencies' pending rulemakings. Once a month, agencies would have to provide detailed information about any rules that they are working on, while OIRA would have to issue an annual report detailing the cumulative costs of all rules that have been proposed or finalized during the previous 12 months. Agencies also would be blocked from implementing their final rules for at least six months until after they have published certain information about the rules on the internet. Tue, 14 Apr 2015 17:35:11 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=405EE816-A3E8-4DBF-7A9DF5950423E662 http://www.progressivereform.org/CPRBlog.cfm?idBlog=405EE816-A3E8-4DBF-7A9DF5950423E662 CPR Scholar and Georgetown University Law School professor William Buzbee testified at a House Subcommittee on Water, Power and Oceans Oversight hearing today entitled, "Proposed Federal Water Grabs and Their Potential Impacts on States, Water, and Power Users, and Landowners." The Hearing concerned the EPA and Army Corp of Engineers' proposed "Waters of The US," rule related to water pollution and agriculture. According to his testimony: The legal uncertainty of recent years about what are protected federal waters has benefitted no one. For those concerned about protection of America's waters, regulatory uncertainty has led to regulatory forbearance, problematic or erroneous regulatory and judicial decisions, and increased regulatory costs. By now linking the "waters of the United States" question to peer reviewed science and clarifying which waters are subject to categorical or case-by-case protection and revealing the reasons for such judgments, the Corps and EPA have moved the law in the direction of certainty and clarity. This is an area calling for difficult, expert regulatory judgments. There was a reason for the thirty years of bipartisan consensus in favor of broadly protecting America's waters. These proposed regulations, if finalized in a substantially similar form but with explanations and changes addressing concerns voiced during the process, could once again bring clarity and stability to the law, while also respecting the protective mandates of the Clean Water Act. To read the full testimony click here. Buzbee also testified on the proposal last year for a House Subcommittee on Small Business Administration Hearing. Tue, 14 Apr 2015 12:32:36 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3594897A-FB49-1F10-F5E7B30C17A5A9D6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3594897A-FB49-1F10-F5E7B30C17A5A9D6 As climate scientists have been telling us for years, and as all but the most obstinate climate deniers acknowledge, greenhouse gas (GHG) emissions from the combustion of fossil fuels are contributing to climatic changes. These changes have taken the form of melting ice sheets, rising sea levels, changes in wind and ocean current patterns, and increases in the frequency of severe weather events, to name but a few effects. Rising temperatures linked to GHG emissions also exacerbate public health problems associated with the release of more conventional air pollutants, because temperature increases facilitate the formation of tropospheric ozone, which can cause breathing difficulties and cardiovascular problems. It is not a stretch to characterize climate change as the most challenging environmental problem of our time. Since taking office in 2009, the Obama Administration has taken important steps to reduce GHG emissions, both in the U.S. and through negotiations with foreign countries such as China. These steps have included using the authority that Congress vested in the federal Environmental Protection Agency (EPA) under the Clean Air Act (CAA). Although Congress enacted the CAA decades before human contributions to climate change were broadly recognized, Congress consciously provided EPA with a flexible mandate to address the health and environmental risks linked to air pollution as the agency became aware of them. In 2007, the Supreme Court concluded that GHGs qualify as "air pollutants" under the CAA, giving EPA the authority to regulate emissions of carbon dioxide and other GHGs from new motor vehicles. After President Obama took office, EPA issued a finding that EPA's subsequent regulation of GHGs from cars and trucks triggered EPA's authority under the CAA to regulate GHG emissions from factories and other stationary sources as well. Once again, the Supreme Court last year ruled that EPA has the power to regulate GHG emissions from stationary sources, at least in some contexts. Fri, 10 Apr 2015 12:23:42 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6747EF06-E05A-0502-3DB2C1EC5EC9339B http://www.progressivereform.org/CPRBlog.cfm?idBlog=6747EF06-E05A-0502-3DB2C1EC5EC9339B Last year, the Center for Progressive Reform published Winning Safer Workplaces: A Manual for State & Local Policy Reform. The manual is intended as a tool for state and local advocates. It highlights successful local campaigns to adopt workplace safety policies, and offers a series of innovative proposals to help state and local advocates make headway even in the face of intense opposition from big-moneyed, anti-regulatory interests. We focused on cross-cutting ideas that will empower workers, ensure crime doesn't pay, and strengthen the institutions that are meant to protect workers. Our day-of-release blog post with more information is here. Since its release, we've received positive feedback from many advocates about the manual. Among the suggestions that we heard was that the manual ought to be translated into Spanish. Today, we're excited to announce that a Spanish-language version of the manual is available on our website. Credit for this massive endeavor goes to Celeste Monforton for coordinating the translation, along with Nico Udu-Gama, Jazmin Rumbaut, Lucy Acevedo, Tony Macias, and Ximena Camou-Guerrero for thoughtfully interpreting the manual. Their efforts were supported by the Public Welfare Foundation and the Public Health Advocacy Institute at Northeastern University School of Law. Please take a look and share this with your colleagues. Thu, 09 Apr 2015 13:56:20 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3717AAC9-C800-42B0-3BC4371C299AFBF9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3717AAC9-C800-42B0-3BC4371C299AFBF9 States will only lose out if they refuse to cooperate with the Clean Power Plan. Mitch McConnell has urged states to refuse to submit plans if the Clean Power Plan is upheld by the Court. He has been accused of inciting lawless behavior on the part of state governments. Let me come to his defense on this. (How often do I get to do that??) The states are under no legal obligation to submit plans. The Clean Air Act does not require them to do so. Coercing states to administer a federal regulatory program would violate the Constitution, at least as the current Court sees things. So there's nothing illegitimate about McConnell exercising his American right of free speech and advising them what to do. The fact that he's doing so presumably reflects his own inability as the leader of the Senate to do anything about it. Tue, 07 Apr 2015 15:32:14 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D380156D-B1E2-2F0A-9737790F928C1A32 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D380156D-B1E2-2F0A-9737790F928C1A32 When it comes to the size of the federal workforce, most of the rhetoric in Washington revolves around how to cut it. That's particularly true where Republicans are concerned, and perhaps nowhere truer than with the Environmental Protection Agency, a favorite GOP target. What they almost never mention is that cutting staff means making sacrifices in protecting the quality of the air we breathe, the water we drink, bathe, swim and fish in, and the many individuals - including infants, the elderly, pregnant women, and those who already suffer from illness - whose health can be severely impaired by environmental pollution. The recent testimony of EPA Administrator Gina McCarthy at a hearing of a House Appropriations subcommittee is a case in point. McCarthy informed the panel that EPA's staffing has now declined to its lowest level since the late 1980s, now "down in the 14,000s." "I am trying to work [our] way back up to the 15,000s," she declared. In fact, even that would leave staffing well below the agency's historic high of 18,110 employees in 1999. Tue, 31 Mar 2015 13:29:02 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=669F3676-FD83-A5CF-CE38B2D1B91F6BF2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=669F3676-FD83-A5CF-CE38B2D1B91F6BF2 There must be a global template for business complaints about regulation, located on some secret right-wing server. Just type in the industry and the name of the regulation: Billions of dollars are at stake, companies will be driven out of the industry and consumers will lose access to low-priced products, if the government dares to impose an ordinary, common-sense rule. Such as, making drug companies responsible for the safety of their products? Aren't pharmaceutical companies already responsible for warning their customers of known adverse effects? If you answered "yes, of course," then you missed the Supreme Court's 2011 ruling in Pliva v. Mensing. Currently, generic drug companies are required by the Food and Drug Administration (FDA) to use exactly the same labels and warnings as the corresponding brand-name drugs. Therefore, the Court ruled in Mensing, the producer of a generic drug cannot be held responsible for failure to warn customers of known hazards that are not mentioned on the brand-name drug label. This is particularly problematic in the frequent cases where generic drugs drive the brand-name producer out of the market, so that no one is updating the label to reflect new information. Mon, 30 Mar 2015 17:36:05 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3BF128B2-BE59-D3A3-AEDA9A63B033D3C4 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3BF128B2-BE59-D3A3-AEDA9A63B033D3C4 The U.S. Supreme Court yesterday heard oral argument in the consolidated cases challenging the Environmental Protection Agency's rule regulating mercury and other toxic emissions from coal- and oil-fired power plants. These utilities remain by far the largest domestic source of mercury emissions, contributing more than half of the mercury releases nationwide. Mercury emissions are at the root of widespread methylmercury contamination in the nation's fish. Fish consumption is the primary way by which humans are exposed to what is, after all, an "extremely poisonous neurotoxin," as the attorney for those industries that joined EPA as respondent reminded the justices. (Transcript at 84). The exchange captured by the transcript may not permit a confident prediction as to how the Court is likely to rule (an assessment shared by Lyle Denniston at SCOTUSblog ). But it provides a glimpse of precisely how monetized costs and benefits can hijack deliberation. Once dollar values are available, these numbers tend to dominate a discussion of what is at stake in regulation. For mercury, the costs are readily quantified, whereas many facets of the benefits resist monetization. So the case for regulation will not only get short shrift - it may be profoundly misunderstood. Thu, 26 Mar 2015 19:04:37 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7121CC6B-0927-F268-12B01DC225641068 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7121CC6B-0927-F268-12B01DC225641068 When it comes to public safeguards, industry never wants to talk about keeping people healthy and protecting the environment; they'd much rather have a conversation about how safeguards will cut into their profits - the costs in the cost-benefit equation. Even on matters where Congress, by statute, has made the discussion of regulatory costs legally irrelevant or a matter of only secondary importance, you can rest assured that industry will still be there talking exclusively about costs. That is largely what is at issue in Michigan v. Environmental Protection Agency, which is being argued today before the U.S. Supreme Court - another attempt by polluting industries to inject discussions of costs where they don't belong. But, for the EPA's rule to limit mercury and other toxic pollutants from fossil-fueled power plants, the subject of the case, perhaps the most critical issue is the regulatory benefits at stake, and how the fulfillment of those benefits has been on a circuitous journey that is now extending into its 25th year. You read that right. It has been a quarter of a century since Congress first directed the EPA to issue this rule. That's when it passed the 1990 Clean Air Act Amendments. As explained in a 2009 CPR white paper, the rule should have been completed by no later than 2000. This ongoing delay has come at a huge price for the public health. With every year that this rule has not been in effect, as many as 94,000 babies have been born in the United States with elevated blood mercury levels - levels high enough to leave them with irreversible brain damage - and as many as 231 children have suffered significant enough impairment of brain function to result in permanent mental retardation. The fossil fuel industry no doubt wants to distract the public from contemplating the harmful health effects of its polluting activities; hence, it is trying to steer the conversation to regulatory costs in today's case. (The fact that these regulatory cost estimates are systematically overstated only provides them with further impetus on this score.) It might be a useful PR move from their perspective, but it is not a legal requirement under the relevant provision of the 1990 Clean Air Act Amendments. Let's hope the Supreme Court will recognize this difference and reject industry's abhorrent attempt to further delay this already long overdue safeguard for protecting our children's health. Wed, 25 Mar 2015 10:18:24 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2AC68FA3-C528-3C12-1C9B73B8585E0FA3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2AC68FA3-C528-3C12-1C9B73B8585E0FA3 In the United States, a handful of large corporations including Perdue and Tyson direct and oversee nearly every step in the poultry production process, essentially serving as overlords to the tens of thousands of small farmers with whom they contract to raise their chickens for slaughter. While deriving the lion's share of the profit, these corporations have so far managed to avoid all responsibility for the pollution their chickens produce. The Environmental Protection Agency (EPA) and state agencies have been largely afraid to tackle the issue because of the well-heeled and politically powerful farm lobby. A new CPR Issue Alert urges government to hold these bad actors accountable and explains how to do so under existing law. These companies, known as "integrators," own virtually all aspects of poultry production - from hatching the chicks, to processing and retailing them, even transporting poultry products to grocery stores and restaurants. The integrators outsource the physical raising of the birds to contract growers but the contracts dictate the size of the flock, the temperature of the chicken houses, the ingredients of the feed, and the medication the chickens receive, among other minutiae. According to a North Carolina grower, his contract with Perdue explicitly prohibited him from exposing his chickens to sun or fresh air. Corporate representatives typically visit each producer and chicken house weekly to supervise the grower's work. Tue, 24 Mar 2015 11:18:51 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F96F8C18-FE44-2EE8-6D16A76FE0D1D958 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F96F8C18-FE44-2EE8-6D16A76FE0D1D958 Last Friday marked the 10 year anniversary of the BP Texas City Refinery explosion that killed 15 people and injured 170 others. In an opinion piece for the Houston Chronicle, CPR President Rena Steinzor describes the systemic failures which led to the explosion and the regulatory gaps that remain. She calls for criminal investigations, "everytime refinery operations kill, maim, or threaten public health." She notes: BP executive Ross Pillari blamed low-level workers for not "doing their jobs." Yet some of the men stationed at the tower had worked 12-hour shifts for 29 consecutive days, as required by BP policy. The company fired six of them, in effect reinforcing the perception that human error, as opposed to systemic mismanagement, was to blame. This spin was refuted by the evidence. Several weeks before the explosion, Texas City plant manager Don Parus prepared a PowerPoint containing pictures of men killed in accidents on site and showed it to BP senior executives John Manzoni and Michael Hoffman. Parus had also commissioned a consulting firm to survey employees about safety. It reported that "[w]e have never seen a site where the notion, 'I could die today,' was so real." Post-explosion reports by the Baker panel, the U.S. Chemical Safety Board, an internal BP review team, and investigative reporting by ProPublica and the Center for Public Integrity, ratified these fears. To read the full piece, click here. Mon, 23 Mar 2015 14:17:24 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CC4EF06C-F7E2-6F64-AF1E60F8EB0832A6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CC4EF06C-F7E2-6F64-AF1E60F8EB0832A6 Last week, workers' advocates at the Southern Poverty Law Center and Nebraska Appleseed got the official word that OSHA will not develop new regulations to protect the men and women who do the dirty work of turning clucking chickens into boneless cutlets. It's an industry where vulnerable workers - mostly women, immigrants, and folks geographically isolated from other job opportunities - face great hazards from the strains of repetitive motion. Some of the plants process tens of thousands of birds on every shift, and a recent NIOSH review of one facility uncovered evidence of chronic musculoskeletal injuries in more than 40 percent of the workers who took part in the evaluation. The industry has a problem. Lobbyists from the Chicken Council will proudly proclaim that the industry's injury and illness rates have been dropping for years. But those numbers simply cannot be trusted. The chronic pain that workers suffer doesn't always meet the definition of a reportable injury because it can be treated with first aid and doesn't necessarily require time away from work. So even if you're the kind of company that's inclined to report accurately, risking elevated workers' comp premiums, workers' experiences of pain and suffering don't match up with the numbers. Fri, 20 Mar 2015 13:02:07 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2F1B25EA-AFA7-30D6-18AB2288FE68BDD5 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2F1B25EA-AFA7-30D6-18AB2288FE68BDD5 Today, CPR Senior Policy Analyst James Goodwin will testify as an expert witness on the regulatory process for a House Committee on Small Business Hearing, "Tangled in Red Tape: New Challenges for Small Manufacturers." Goodwin's testimony highlights the economic as well as public health and safety benefits of regulations in relation to small businesses. He notes: Over the past four decades, U.S. regulatory agencies have achieved remarkable success in establishing safeguards that protect people and the environment against unreasonable risks. During the 1960s and 1970s, rivers caught fire, cars exploded on rear impact, workers breathing benzene contracted liver cancer, and chemical haze settled over the industrial zones of the nation's cities and towns. But today, the most visible manifestations of these threats are under control, millions of people have been protected from death and debilitating injury, and environmental degradation has been slowed and even reversed in some cases. In short, the United States is much better off because of the regulations adopted over the past 40 years. But serious hazards remain, and indeed new ones continue to emerge as new technologies develop and the U.S. economy evolves. Americans would be even better protected if the gaps that leave them and their environment vulnerable to unnecessary risks were closed. To gauge the positive impact of regulation on Americans' lives, consider: The White House Office of Management and Budget (OMB) estimates that regulatory benefits exceed regulatory costs by about 8 to 1 for significant regulations. The Environmental Protection Agency (EPA) estimates that the regulatory benefit of the Clean Air Act exceeds its costs by a 25-to-1 ratio. The failure to regulate some hazards related to the workplace, the environment, product safety, food safety, and more, and the failure to enforce existing regulations on such hazards results in thousands of deaths, tens of thousands of injuries, and billions of dollars in economic damages every year. Sometimes, the damages are spectacular on a world-wide scale. The BP Oil Spill caused tens of billions of dollars in damages.3 The Wall Street collapse may have caused trillions. Regulation to prevent catastrophe can be far cheaper, and less painful, than cleaning up damage to lives, property, and the environment later. To read his full testimony click here. Wed, 18 Mar 2015 11:46:52 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C57683AC-F731-8E27-BF9412782FADFE8B http://www.progressivereform.org/CPRBlog.cfm?idBlog=C57683AC-F731-8E27-BF9412782FADFE8B What's old is new again. This week, competing bills to reform the 40-year old Toxic Substances Control Act (TSCA) hit the Senate - one from Senators Vitter and Udall, the other from Senators Boxer and Markey. Both the environmental community and the chemical industry agree that TSCA is broken and must be fixed. This is a law that's so poorly designed; EPA has been stymied in its efforts to ban asbestos. Yes, that asbestos. But where environmentalists and the chemical industry diverge is on the details of how to fix TSCA. CPR Member Scholars and staff are still analyzing the bills, but one issue stands out as a fatal flaw in the Vitter-Udall proposal, and is addressed wisely in the Boxer-Markey proposal: the proposed safety standard. The "safety standard" is the focal point of the legislation: EPA's central task under both proposals is to determine whether chemicals meet the standard. If a chemical meets the standard, then restrictions on manufacture, processing, and use will be limited. If it doesn't, then EPA must consider tight controls, even banning the chemical. But the safety standard in this legislation is very problematic. With colleagues from the environmental community, one dozen CPR Member Scholars sent this letter to the Chairman and Ranking Member of the Senate EPW Committee to explain our concerns. Chief among them is that the Vitter-Udall legislation retains a key phrase, "unreasonable risk," that has been the Achilles Heel of EPA's TSCA program for decades. If Congress intends to fix TSCA, the statute must be rid of that phrase and amended to use a standard that ensures a 'reasonable certainty of no harm' from chemicals in commerce. Such a standard - found in the Boxer-Markey bill - is better for both people and the environment. Mon, 16 Mar 2015 19:35:58 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6F2D922A-D8F0-BF05-0B0651DB255A1E85 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6F2D922A-D8F0-BF05-0B0651DB255A1E85 There are troubling indications that Keith Hall lets ideology blind him to basic economics. Last week, in a post about the employment effect of regulations, I mentioned briefly that the new Director of the Congressional Budget Office, Keith Hall, had endorsed some questionable views on the subject. A reader pointed me toward an additional writing that has done a lot to escalate my concerns. There are disturbing signs about both Hall's ideological bias and even his grasp of basic economics. Mon, 09 Mar 2015 15:34:54 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FE1CF4BC-A75B-3497-C6279694000E060B http://www.progressivereform.org/CPRBlog.cfm?idBlog=FE1CF4BC-A75B-3497-C6279694000E060B It's a rare thing on Capitol Hill when a member of the Administration is on the hot seat from both sides of the aisle. But that's what happened on Tuesday when President Obama's regulatory czar, Howard Shelanski, JD, PhD, testified at a joint hearing of two subcommittees of the House Committee on Oversight & Government Reform. The Republican Chairman Mark Meadows (R-NC) and Ranking Member Gerry Connolly (D-VA)and other subcommittee members, peppered him with questions about OIRA's lack of transparency in numerous arenas. Their motivations were different, but they were equally tough in their questioning. Republicans don't think OIRA is doing enough to reign in regulatory agencies, while Democrats want OIRA to complement, not impede, agencies' work. Mon, 09 Mar 2015 15:27:51 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FDCD64FC-B286-66D2-49F09EBBFDD5257C http://www.progressivereform.org/CPRBlog.cfm?idBlog=FDCD64FC-B286-66D2-49F09EBBFDD5257C Yesterday, the House Oversight Committee held a hearing on "Challenges Facing OIRA in Ensuring Transparency and Effective Rulemaking" that featured as its only witness the head of the White House's Office of Information and Regulatory Affairs (OIRA), Administrator Howard Shelanski. Given that regulations are a huge source of consternation on the Hill, and the prominent role that OIRA plays in the federal regulatory apparatus, oversight hearings involving OIRA always have the potential for fireworks. Despite this potential, these hearings - which take place once a year or so - tend to be pretty staid affairs with some mild grousing over a few key issues that are undoubtedly worthy of congressional attention - including the delays caused by OIRA's unacceptably long rule reviews and OIRA's semiannual tradition of issuing regulatory agendas behind schedule and/or at inconvenient times of the year (i.e., before major holidays). Yesterday's had all of this, but it had a few big surprises, too. Wed, 04 Mar 2015 13:59:48 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FD91A096-9330-278D-F1FD917F6027128F http://www.progressivereform.org/CPRBlog.cfm?idBlog=FD91A096-9330-278D-F1FD917F6027128F The Texas Public Utility Commission, which sets electricity rates for the state and allows adjustments for fuel costs, has recently proposed amendments to its procedural rules that would limit consumer advocate input into potentially abusive rate changes. Prior to any rate changes, the Commission holds public hearings where experts for the utility companies present highly technical reports drawn from their own data. Representatives of consumer groups can participate in these hearings, but they typically advance consumer interests by challenging the data and assumptions presented by the industry's experts. The Commission has proposed to limit the amount of demands for information that consumer advocates can make of utility companies and the number of written question they can submit at public hearings. In an op-ed for yesterday's Austin-American Statesman, CPR Scholar and University of Texas School of Law professor Tom McGarity lays out the potential problems for consumers if the rule goes forward. McGarity notes: Most of us take for granted the large role that electricity plays in our daily lives until we receive our monthly electric bills. And most of us are unaware of the role that consumer advocates play in keeping those bills as low as possible. But we had best pay attention to a battle that is brewing between consumer advocates and the electric utility industry in the Texas Public Utility Commission, because it has serious implications for the rates that we will pay for electricity in the future. Lawyers for the electric utility companies have persuaded the commission to propose amendments to its procedural rules that will seriously impede consumer advocates' efforts to keep utility companies honest in most of its hearings related to electricity rates. To read the full piece, click here. Tue, 03 Mar 2015 16:36:42 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CFAE70CB-F0CF-9D61-93227EB28326469D http://www.progressivereform.org/CPRBlog.cfm?idBlog=CFAE70CB-F0CF-9D61-93227EB28326469D The Republicans' choice for head of the CBO, Keith Hall, spent some time at a libertarian think tank reportedly funded by the Koch brothers, where he wrote about the effect of regulation on employment. Hall argued that regulations cause unemployment (include indirect effects because of price changes), and that the costs of unemployment should be included in regulatory cost-benefit analysis. In principle, it seems right to include the special harms associated with job loss in cost-benefit analysis (not just for regulations but everything else too). There's all kinds of evidence that being fired or laid off is very damaging to people, and that's a genuine cost - assuming that we can reliably quantify the effect. As Hall has said: "The immediate impact of job loss includes lost wages, job search costs, and retraining costs. Further, research shows that even after reemployment it can take as long as 20 years for workers to catch up on lost earnings, largely due to skill mismatches between the jobs lost and the new jobs created in the economy. These losses occur at different lengths of job tenure, in all major industries, and with workers of any age." As I said, this seems right in principle. But there are some important caveats. Mon, 02 Mar 2015 17:02:14 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9D098088-92EF-65DB-90798D201D7007C0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9D098088-92EF-65DB-90798D201D7007C0 Last December, the Justice Department announced the indictiment of the owner/head pharmacist, the supervising pharmacist, and 12 others associated with the New England Compounding Compounding Center. The 131-count indictment, which included 25 charges of second-degree murder, grew out of a 2012 outbreak of fungal meningitis caused by contaminated drugs manufactured by the company. More than 750 patients were diagnosed with the illness as a result, and 64 patients in nine states died from it. ? In a February 28, 2015, op-ed in USA Today, CPR President Rena Steinzor, author of Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction, recounts the story and then takes a look at how policymakers reacted, and what came of their response. The tragedy laid bare a gaping hole in the nation's regulatory fabric, and rather than addressing it with straightforward legislation and resources to enforce it, Congress pass a "market-based" bill that allowed individual compounding pharmacies to decide for themselves if they'd like to be regulated or not. She writes: In March 2013, Congress passed bipartisan legislation to fix the problem. Incredibly, though, it allowed compounding pharmacists to decide whether to volunteer to be regulated. Unless they register with the FDA, the agency has no way of knowing about them except through patient and medical professional complaints, a reporting method that in many cases comes far too late. The rationale? Market forces will take care of the problem because no hospital or treatment center will want to deal with an unregistered company. Sun, 01 Mar 2015 09:58:23 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5A704939-DF70-F78F-AE88A3E627EB4E8F http://www.progressivereform.org/CPRBlog.cfm?idBlog=5A704939-DF70-F78F-AE88A3E627EB4E8F In keeping with an apparent effort to hold an antiregulatory hearing on any and all days ending in "y," Congressional Republicans have teed up yet another humdinger for Monday, March 2. That's when the House Judiciary Committee's Subcommittee on Regulatory Reform, Commercial and Administrative law will take a closer look at three more antiregulatory bills that have been recycled from previous congresses, including the Responsibly and Professionally Invigorating Development Act of 2015 (RAPID Act), the Sunshine for Regulatory Decrees and Settlements Act of 2015 (SRDSA), and the Searching for and Cutting Regulations that are Unnecessarily Burdensome Act of 2015 (SCRUB Act). And by "take a closer look," I mean "recite tired free market platitudes en route to their predetermined conclusion that the passage of these three bills is the only way to prevent regulation-induced economic disaster." Others and I have written about all three of the bills in the past, so there's no need to rehash all of the gory details here. But, in approaching the hearing, a few thoughts are worth keeping in mind on each of these absurd bills: The SRDSA. Last week, I blogged about the SRDSA - a bill that its supporters claim is necessary to prevent so-called "sue and settle" agreements that lead to environmental regulations - to highlight how a recent Government Accountability Office (GAO) report had thoroughly demolished the "sue and settle" myth. In fact, every claim made by the lead House and Senate sponsors of the SRDSA in their joint press release announcing the bill was directly refuted by the GAO. Hopefully, this GAO report will be discussed at great length on Monday. There is, however, a real "sue and settle" problem that is quite distinct from the fallacious one that congressional Republicans are constantly complaining about. This one involves industrial polluters urging conservative state governments to sue them for their environmental violations, as a means of forestalling citizen suits that seek to hold companies liable for the same environmental violations. The state dutifully steps in, blocks the citizen suit, and then settles with the company with a slap on the wrist. The most infamous example of this maneuver took place just before the Duke coal ash spill in North Carolina last year. Any guesses on whether the Republicans will bring that up on Monday? Fri, 27 Feb 2015 15:30:44 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FF541B79-F34F-CE56-4C051CE80504AE71 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FF541B79-F34F-CE56-4C051CE80504AE71 A clock hangs in Room 342 of the Dirksen Senate Office Building - the room where tomorrow at 10:00 am the Republican leadership of the Senate Homeland Security and Government Affairs Committee will convene its first antiregulatory circus hearing of the new Congress. Below that clock, the hearing will play out according to a now-familiar script: the Republican members will cite vague constituent concerns about the regulatory system harming their families and businesses; the three industry shills invited by the majority will rehash the same tired and unsubstantiated arguments about how regulations are a drain on the economy; and, by the hearing's end, a consensus will emerge among the Republican members and their hand-picked witnesses that drastic reforms of the regulatory system are in order. Along the way, hands will be wrung, fists will be pounded, and vitriol will be spewed. Something must be done, they'll exclaim. That something will assuredly involve more rulemaking procedures that would increase corporations' already tight grip on the rulemaking process and more lookback procedures for existing regulations that will tie up agencies in knots and waste their dwindling resources. Meanwhile that clock in Room 342, the one looming just over the Republican members' heads, will keep ticking. Tick tick tick. As each second passes, the country's most pressing problems will remain unaddressed. We'll be no closer to securing funding for transportation infrastructure, which is due to run out in May. We'll be no closer to tackling the existential threat of global climate change or the stagnant wages that are holding back millions of American families. Most astonishingly of all for the members of the Senate Homeland Security Committee, with each tick, we'll be one second closer to a shutdown of the Department of Homeland Security set to take place this Friday when the agency's funding officially expires. Tick tick tick. Frankly, the timing of this hearing couldn't be worse for the congressional Republicans who are singularly responsible for the unnecessary game of chicken with the Department of Homeland Security's funding. But, if they are going to go through with it, at least they should endeavor to not make it a complete waste of everyone's precious time. The Republican committee members are right that the regulatory system is not functioning as well as it could, but their diagnosis of the problem - and the remedies they prescribe as a result - are grossly off the mark. Over the last 30-plus years, the rulemaking process has become increasingly captured by corporate interests that are intent on avoiding any public accountability, including through compliance with any regulatory safeguards they find inconvenient to their bottom line. For example, while the rulemaking process was intended to follow a pluralistic model in which agencies would develop new rules based on input from a variety of public stakeholders, industry has been able to leverage its superior resources to dominate these public input processes with the result of diluting and marginalizing the public's voice. While regulations are supposed to be grounded in the best available science, industry has succeeded in degrading the scientific method into something more reminiscent of "Calvinball," manufacturing uncertainty to suit its own ends by keeping the rules of the game in a constant state of flux. Tue, 24 Feb 2015 14:27:28 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6292FA28-AE2D-893D-D22EE62DCEC32384 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6292FA28-AE2D-893D-D22EE62DCEC32384 This week, the Maryland General Assembly will review new legislation that could help ensure safer workplaces in the state's construction industry. The proposal, which is a type of "responsible contracting" legislation similar to other policies being tested out in states and municipalities across the country, would require companies that put in bids for work on public works projects in Maryland to attest that they have workplace health and safety programs and that they would implement the programs in construction projects done on the public dime. It's an important piece of legislation, given the dangers in the industry. As we noted in our Winning Safer Workplaces manual, "Construction is one of the most hazardous industries for workers. Frequent injuries and deaths from falls, electrocutions, and striking objects impose unbearably high costs on individuals, families, and local economies. Public Citizen estimates that, between 2008 and 2010, fatal and nonfatal construction injuries cost the states of Maryland $713 million, Washington $762 million, and California $2.9 billion in medical services, lost productivity, administrative expenses, and lost quality of life. The firms responsible for many of these injuries and fatalities, and those with histories of citations for unsafe practices, continue to receive contracts from state and local governments." Today, the House Economic Matters committee will hear testimony on a proposal to use the Maryland government's vast purchasing power as a tool for promoting safer construction work practices. I submitted testimony in support of the bill because it is a smart way to ensure workers are being protected in a state where the AFL-CIO estimates it would take 108 years for occupational health and safety inspectors to visit every workplace. Tue, 24 Feb 2015 09:40:20 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5819C1BE-9719-7D52-5F8EBFB79CAADE4C http://www.progressivereform.org/CPRBlog.cfm?idBlog=5819C1BE-9719-7D52-5F8EBFB79CAADE4C Today I joined a group more than 40 environmental law professors and clinicians from institutions around the nation in a joint letter to the University of North Carolina System Board of Governors urging that they reject a recommendation to shutter the Center on Poverty, Work and Opportunity, housed at the University of North Carolina Law School. That unfortunate recommendation arose from a special committee created by the board at the direction of the legislature to review all 237 of the state university system's centers, in the wake of criticism of state anti-poverty efforts by the Center's director, Professor Gene Nichol. To be clear, the Center takes no money from the state, and hasn't since 2009. It's funded by private contributions. It's being targeted not to save money, but because some in the legislature would rather not have to be reminded of poverty, and don't have the stomach for criticism of their policies. And since Professor Nichol's criticisms were a trigger for the special committee's review, it's no surprise that the committee has taken aim at the Center. I'm not directly affiliated with the Center, but our Center for Law, Environment, Adaptation, and Resources (CLEAR) at UNC Law has been looking to work with both the Poverty Center and the Carolina Law School's Center for Civil Rights to try and address how to minimize the disparate impacts on the poor and minorities from climate change that are going to happen at the North Carolina coast. But aside from my belief that the Poverty Center has much to contribute to advancement of environmental protection, I and my environmental colleagues around the country are writing because we find it hard to sit by while legislators seek to muzzle their critics in academia. Here's what we say in the letter: We represent a national group of environmental law professors and clinicians from over forty public and private law schools. Our discipline has faced similar politically motivated criticisms in the past, and will likely do so again in the future. We urge the North Carolina Board of Governors, and all regulators of institutes of higher education, to reject basing university decisions on the popularity of political positions. We come to this position based on important experience in our environmental legal field. Mon, 23 Feb 2015 09:43:52 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=20976F6A-DD09-F70A-51A11EEA0410FC1E http://www.progressivereform.org/CPRBlog.cfm?idBlog=20976F6A-DD09-F70A-51A11EEA0410FC1E Our intrepid colleague Celeste Monforton, who writes at the Pump Handle blog, recently passed along a neat example of a tool that we wrote about in our Winning Safer Workplaces manual. Minnesota's Office of the Legislative Auditor released a report on the state's regulatory protections for meatpacking workers. As we noted in the Winning Safer Workplaces manual, state-level oversight of government regulation can be a valuable tool for advocates who are fighting for stronger workplace protections. The results of new audits can clarify what is working - and what is not working - about the regulatory system, giving advocates critical information that they might use in new campaigns. The audit process itself, by focusing outside attention on programs that may be insulated from regular or public oversight, can also have positive effects for the programs' intended beneficiaries (here, workers). Thu, 19 Feb 2015 18:05:34 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=68C65528-9B72-6E1B-E52942E3677EEFE9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=68C65528-9B72-6E1B-E52942E3677EEFE9 Last week, Rep. Doug Collins (R-Ga.) and Sen. Chuck Grassley (R-Iowa) continued the parade of anti-regulatory bills resurrected from past sessions of Congress by introducing in their respective chambers the Sunshine for Regulatory Decrees and Settlements Act of 2015 (SRDSA). While all of these anti-regulatory bills are categorically terrible, the SRDSA really needs to be singled out for special condemnation. After all, it is the only one of the lot that purports to take on a problem - so-called "sue and settle" litigation - that no less than the Government Accountability Office (GAO) has debunked as a myth. Nevertheless, Messrs. Collins and Grassley have pressed ahead with the bill - versions of which they introduced previously in 2013 - despite the pressing real problems confronting their constituents and our country. Tue, 17 Feb 2015 16:43:07 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FEE5B696-D945-8CE6-42FA1CBCF969BD91 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FEE5B696-D945-8CE6-42FA1CBCF969BD91 At last, the Obama Administration is articulating a sense of urgency about moving vitally needed health and safty regulations through its pipeline. Here's Howard Shelanski, White House Office of Information and Regulatory Affairs, in a Bloomberg BNA story this week: "So we are working now, here in January of 2015, on getting priorities lined up, so that we do not find ourselves at some point in 2016 with really important policy priorities unexecuted," Shelanski said. Later in the interview: Still, the reason OIRA is working hard with agencies in early 2015 is so they can bring the most important rules through the process this year and finalize them sometime in early 2016, Shelanski said. It's about time. Last November, CPR released an Issue Alert calling on the Obama Administration to seize the opportunity offered by its remaining time in office and complete a slate of 13 essential regulatory safeguards that would deliver long-lasting protections for public health, safety, and the environment. In particular, the Issue Alert urged the Administration to immediately begin taking steps toward charting a course for these and other safeguards that would ensure their completion "by no later than June 30, 2016," which would ensure that they are not swept up in any political riptides in the months leading up to the 2016 presidential elections and to otherwise insulate them against potential repeal under the Congressional Review Act. Fri, 13 Feb 2015 12:12:02 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2734B896-B3D6-BABB-C5611170FBC10DA0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2734B896-B3D6-BABB-C5611170FBC10DA0 Today, the Government Accountability Office (GAO) reiterated its conclusion that EPA's regulation of toxic chemicals is in crisis, unable to deliver badly needed protection to the American people. These benighted programs are among a couple of dozen of "high priority" failures that cause serious harm to public health, waste resources, or endanger national security, and Congress is giving the report red carpet treatment, with House and Senate hearings on the report scheduled the very day it was released. In auditor speak, GAO says that "[b]ecause EPA had not developed sufficient chemical assessment information under these programs to limit exposure to many chemicals that may pose substantial health risks, we added this issue to the High Risk List in 2009." At the time, then-Administrator Lisa Jackson took clear steps to rescue the program. Since then, very little progress has been made, largely because the Obama Administration has narrowed its focus to climate change, and a major overhaul of initiatives swamped by chemical industry nitpicking does not seem to be in the cards until at least 2017. Wed, 11 Feb 2015 11:33:53 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BEDFFAF4-E18C-35C1-1FB8D44EEA216B71 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BEDFFAF4-E18C-35C1-1FB8D44EEA216B71 According to the Office of Information and Regulatory Affairs' (OIRA) records, the Department of Transportation submitted its draft final crude-by-rail safety rule for White House review late last week. OIRA's review of draft final rules represents the last hurdle in what can be a long and resource-intensive rulemaking process; just about any rule of consequence cannot take effect without OIRA's final approval. Once completed, the crude-by-rail rulemaking would help to avoid train derailments and crashes involving the more than 415,000 rail-carloads of flammable crude oil traveling across the United States each year, and to minimize the consequences of such catastrophes if and when they do occur. A recent CPR Issue Alert featured the rulemaking as among the essential 13 regulatory actions that the Obama Administration should commit to completing during its remaining time in office. OIRA's centralized review can be a highly contentious and politically charged process, as it allows corporate interests to attack rules they find inconvenient behind closed doors out of the public view. A 2011 CPR White Paper found that industry lobbyists dominate these closed-door meetings, with 65 percent of the meetings' participants representing regulated industries. In these meetings, industry lobbyists typically find an audience - often made up of the conservative economists that comprise much of OIRA's staff as well as political operators from the West Wing - that is sympathetic to their pitch. This White Paper and other academic research has shown that industry dominance of the OIRA review process has its desired antiregulatory effect, resulting in rules being delayed, watered down, and sometimes blocked altogether. Mon, 09 Feb 2015 15:22:10 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=600C9DC9-B974-E39E-2BEF6D8DD674BC97 http://www.progressivereform.org/CPRBlog.cfm?idBlog=600C9DC9-B974-E39E-2BEF6D8DD674BC97 In Kansas and Maryland, two states separated by geography and politics, Republican state lawmakers are touting plans that could seriously alter the institutions that workers in those states rely upon to keep them safe on the job. Two weeks ago, Maryland Delegate (now State Senator) Andrew Serafini introduced a bill that would make drastic changes to the way the Maryland Occupational Safety and Health agency (MOSH) does its job. So drastic, in fact, that the feds would likely have to step in and take over the state's program. The biggest problem with the bill is a requirement that the agency send employers a letter, warning them that MOSH inspectors are on the way. Tipping off employers is bad policy for an enforcement agency trying to regulate conditions that can be easily be disguised or altered. In many cases, it's also a criminal act. The bill has a few other features that likely wouldn't sit well with the federal OSHA auditors, who annually review state-plan agencies' policies and practices to ensure that they continue to operate programs that are at least as effective as what Fed-OSHA is doing in other states (not all states run their own state-plan programs). For example, the bill would prevent MOSH from issuing fines in a number of circumstances that would lead to citations in other states. Given the evidence that shows inspections and citations lead to safer workplaces, this kid-glove approach to enforcement puts workers at risk and creates a policy that is not as effective as the Fed-OSHA approach. Mon, 09 Feb 2015 15:13:55 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5FC02D56-DC58-689E-C4014EB738F48663 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5FC02D56-DC58-689E-C4014EB738F48663 Tomorrow, the House is set to vote on the Small Business Regulatory Flexibility Improvements Act (SBRFIA), a piece of legislation that CPR Senior Policy Analyst James Goodwin has explained would "further entrench big businesses' control over rulemaking institutions and procedures that are ostensibly intended to help small businesses participate more effectively in the development of new regulations." As Members of the House prepare for Thursday's vote, CPR has something to add to their files: a new Issue Alert with details about how the Regulatory Flexibility Act is failing small businesses. In The Small Business Charade: The Chemical Industry's Stealth Campaign Against Public Health, CPR President Rena Steinzor, Senior Policy Analyst James Goodwin, and I explain how the American Chemistry Council (ACC) and other large trade associations manipulated the procedures outlined in the Regulatory Flexibility Act to protect their profits at the expense of the public interest - all while wasting taxpayers' money and silencing legitimate small business input into the regulatory process. We take a close look at emails obtained through the Freedom of Information Act (h/t Center for Effective Government) and explore how ACC tried to manipulate OSHA's ongoing efforts to better protect workers from respirable crystalline silica, a ubiquitous and under-regulated carcinogen. Wed, 04 Feb 2015 09:52:59 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=52C4432F-B500-6FD4-97294A4696E8064B http://www.progressivereform.org/CPRBlog.cfm?idBlog=52C4432F-B500-6FD4-97294A4696E8064B While meteorologists' recent doom-laden predictions of an apocalyptic blizzard hitting the mid-Atlantic may not have exactly panned out, I have a forecast that you can take to the bank: A large mass of conservative hot air has recently moved into the Washington, DC, region where it is now combining with a high pressure zone of intense industry lobbying. As a result, we can expect over the next several days a heavy downpour of bills aimed at eviscerating our nation's regulatory safety net with long-lasting, if not irreversible, damage to the public health, financial security, and the environment. The powerful corporate interests that find compliance with these safeguards to be inconvenient to their bottom lines, however, stand to reap a windfall from this storm if any of these bills are enacted into law. I have already highlighted one of these bills - the Small Business Regulatory Flexibility Improvements Act (SBRFIA) - in this space earlier. As I explained there, the bill - which the House Judiciary Committee marked up today without the benefit of a formal background hearings - would further entrench big businesses' control over rulemaking institutions and procedures that are ostensibly intended to help small businesses participate more effectively in the development of new regulations. As it stands now, the Small Business Administration's (SBA) Office of Advocacy already wastes taxpayer money by working on behalf of powerful corporate interests to block or delay regulatory safeguards to the detriment of both small businesses and the general public. But the antiregulatory members of Congress aren't stopping there. They have several other bills teed up that are similarly aimed at weakening the ability of regulatory agencies - such as the Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), and the Consumer Financial Protection Bureau - from carrying out their statutory missions of protecting the public. Wed, 28 Jan 2015 12:35:06 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F015C4BE-C064-A608-D41EA2BAB7B12331 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F015C4BE-C064-A608-D41EA2BAB7B12331 Just as The Sixth Sense makes more sense when you realize that Bruce Willis's character has been dead the whole time, the Small Business Regulatory Flexibility Improvements Act (SBRFIA) - the latest antiregulatory bill being championed by antiregulatory members of the House of Representatives - makes more sense when you realize that it has nothing to do with helping small businesses at all. Rather, it's all about helping powerful corporate interests increase their profits at the expense of public health, safety, and the environment. The twist ending to this nightmare of a bill is that real small businesses - the very entities the bill's sponsors claim to be helping - are left in a worse position than if the bill were never enacted at all. Conservative members of Congress have long pretended to care about small businesses - at least, insofar as it helps advance their broader antigovernment campaign. To this end, these lawmakers have succeeded in building a complex legal apparatus that purports to strengthen the voice of small businesses in the rulemaking process. Under a series of laws starting with the Regulatory Flexibility Act, agencies must undertake various analyses of their rules' impacts on small businesses, and their compliance with these requirements is overseen by a powerful agency known as the Small Business Administration's (SBA) Office of Advocacy. As first detailed in a 2013 CPR white paper, however, the dirty secret behind this Potemkin's village is that these institutions serve the interests of the large corporations that already dominate the rulemaking process to the exclusion of both small businesses and public interest advocates. Mon, 26 Jan 2015 18:34:47 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=95F2F261-D28D-5003-5F6C5A2B36081F92 http://www.progressivereform.org/CPRBlog.cfm?idBlog=95F2F261-D28D-5003-5F6C5A2B36081F92 There were many highlights in President Obama's recent State of the Union address, but one passage in particular stuck out for us. In this passage, Obama laid out his clear vision of the positive role that government can and must play in our society - and sharing this vision with the American public will be essential for successfully repelling the oncoming Republican onslaught against regulatory safeguards. He cast his positive vision of government in the following terms: But here's the thing - those of us here tonight, we need to set our sights higher than just making sure government doesn't halt the progress we're making. We need to do more than just do no harm. Tonight, together, let's do more to restore the link between hard work and growing opportunity for every American. In other words, we as a society benefit when everyone has the opportunity to achieve his or her full potential. The government is uniquely positioned to ensure that everyone is afforded opportunity; and, when the government is permitted to function effectively, it can and will fulfill this task successfully. Individuals win. Society wins. And the government has a critical role to play in achieving these results. Fri, 23 Jan 2015 20:42:39 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=18AD3549-FB81-85E6-2DD25E11DF2B2027 http://www.progressivereform.org/CPRBlog.cfm?idBlog=18AD3549-FB81-85E6-2DD25E11DF2B2027 Black lung has been the underlying or contributing cause of death for more than 75,000 coal miners since 1968, according to NIOSH, the federal agency responsible for conducting research on work-related diseases and injuries. Since 1970, the Department of Labor has paid over $44 billion in benefits to miners totally disabled by respiratory diseases (or their survivors). The annual death rate from mining accidents is 20-25 per 100,000, about six times the average industry. If you do the math, that means comes out to about six deaths per thousand workers over the course of a thirty-year career as a miner. This is actually an underestimate because the government figures include office workers employed in the industry. Miners aren't the only victims. There's also air pollution. Even with the pollution controls in place in developed countries, coal remains deadly. According to a 2011 report of the American lung association, particulate pollution from coal-fired power plants causes about thirteen thousand deaths per year. Indeed, according to the report: "Coal-fired power plants that sell electricity to the grid produce more hazardous air pollution in the U.S. than any other industrial pollution sources." Of course, things would be much worse if it weren't for EPA. Just look at China, which has done very little to control pollution from power plants. According to a recent study: Air pollution causes people in northern China to live an average of 5.5 years shorter than their southern counterparts. . . . High levels of air pollution in northern China - much of it caused by an over-reliance on burning coal for heat - will cause 500 million people to lose an aggregate 2.5 billion years from their lives, the authors predict in the study, published in the journal the Proceedings of the National Academy of Sciences. To put it in as few words as possible: coal kills. Fri, 23 Jan 2015 20:39:41 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=185DA63E-A444-FACD-B055EF5A5AB54575 http://www.progressivereform.org/CPRBlog.cfm?idBlog=185DA63E-A444-FACD-B055EF5A5AB54575 Just as The Sixth Sense makes more sense when you realize that Bruce Willis's character has been dead the whole time, the Small Business Regulatory Flexibility Improvements Act (SBRFIA) - the latest antiregulatory bill being championed by antiregulatory members of the House of Representatives - makes more sense when you realize that it has nothing to do with helping small businesses at all. Rather, it's all about helping powerful corporate interests increase their profits at the expense of public health, safety, and the environment. The twist ending to this nightmare of a bill is that real small businesses - the very entities the bill's sponsors claim to be helping - are left in a worse position than if the bill were never enacted at all. Conservative members of Congress have long pretended to care about small businesses - at least, insofar as it helps advance their broader antigovernment campaign. To this end, these lawmakers have succeeded in building a complex legal apparatus that purports to strengthen the voice of small businesses in the rulemaking process. Under a series of laws starting with the Regulatory Flexibility Act, agencies must undertake various analyses of their rules' impacts on small businesses, and their compliance with these requirements is overseen by a powerful agency known as the Small Business Administration's (SBA) Office of Advocacy. As first detailed in a 2013 CPR white paper, however, the dirty secret behind this Potemkin's village is that these institutions serve the interests of the large corporations that already dominate the rulemaking process to the exclusion of both small businesses and public interest advocates. At the hub of this complex apparatus - making sure that everything continues to operate smoothly - is the SBA Office of Advocacy itself. This small, under-the-radar bureau effectively functions as the antiregulatory sister to the much better known White House Office of Information and Regulatory Affairs (OIRA). Like OIRA, it works on behalf of powerful corporate interests to attack crucial regulatory safeguards for protecting the public. Thu, 22 Jan 2015 14:35:22 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=280DCF81-CF5B-28A5-0E1B3A20E09608DE http://www.progressivereform.org/CPRBlog.cfm?idBlog=280DCF81-CF5B-28A5-0E1B3A20E09608DE Maryland Governor Larry Hogan was sworn in earlier today and legislators, farmers, environmentalists, state agency staff, and scientists are waiting with bated breath to see whether he will act on his post-election promise to fight the proposed Phosphorous Management Tool (PMT). The desperately needed regulation would limit the amount of phosphorus-laded chicken manure farmers can spread on their fields. Phosphorus is an essential nutrient for healthy waterways, provided it is present in the right quantity. Too much phosphorus, however, and algae growth explodes, devouring all the oxygen in the water and leading to "dead zones" that cannot support aquatic life. This past summer, the Chesapeake Bay dead zone was the eighth largest since record keeping began. Algae can also be toxic. Phosphorus fueled an outbreak of poisonous algae in Lake Erie last year that forced half a million people in Toledo and the surrounding Ohio communities to temporarily shut off their tap water. Wed, 21 Jan 2015 20:37:34 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0E740B76-92A1-4CAB-46A25D768D6F657C http://www.progressivereform.org/CPRBlog.cfm?idBlog=0E740B76-92A1-4CAB-46A25D768D6F657C Last week on The Pump Handle, Kim Krisberg highlighted an interesting pilot program in Rockaway Township, New Jersey that puts an extra set of eyes on the lookout for workplace safety concerns that might otherwise have gone unnoticed by government inspectors. As she explains here, restaurant inspectors in Rockaway are pilot testing a simple modification to their inspection responsibilities - while they check refrigerator temperatures and cleanliness for food safety concerns, they're now also looking for good practices that ensure workers are safe. Inspectors have a checklist of basic worker safety issues and they're keeping tabs on which restaurants are making the grade. Tue, 20 Jan 2015 20:35:07 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=09AF9EC0-9C19-6302-A67D8056D26B74CF http://www.progressivereform.org/CPRBlog.cfm?idBlog=09AF9EC0-9C19-6302-A67D8056D26B74CF As expected, yesterday the Solicitor General filed a petition for certiorari to the Supreme Court in FERC v. Electric Power Supply Association, asking the Supreme Court to review a May 23, 2014 decision from a divided panel of the D.C. Circuit that invalidated FERC's Order 745. Order 745 directs Regional Transmission Organizations (RTOs) and Independent System Operators (ISOs) to establish rules that compensate demand response resources at the wholesale market price - the same rate that electric power suppliers receive for selling electricity. A group of organizations affiliated with generators of electricity sued FERC, alleging that Order 745 had overstepped the agency's authority. A majority of the D.C. Circuit panel (Brown, Silberman) agreed, holding that Order 745 exceeds FERC's jurisdiction over wholesale electricity markets under the Federal Power Act, 16 U.S.C. s. 824. The panel majority reasoned that, because demand response involves decisions by end users regarding their energy use, it is inherently "part of the retail market." Judge Edwards dissented. Fri, 16 Jan 2015 20:32:52 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F475A1F8-0706-C0B2-F7A5CBC3DA8F8B91 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F475A1F8-0706-C0B2-F7A5CBC3DA8F8B91 In almost any other appellate court, winning over a simple majority of the justices means that you win the case. Not so in Nebraska. Last Friday, in Thompson v. Heineman, a majority of the Nebraska Supreme Court found the Keystone XL Pipeline routing law, LB 1161, which granted the Governor the power to approve Keystone's route through the state, unconstitutional. The catch? Nebraska's rarely invoked Const. Art. V, s. 2, or "supermajority clause." Under this clause, "no legislative act shall be held unconstitutional except by the concurrence of five judges." Therefore, five out of seven justices must agree in order to strike down a law as unconstitutional - and since only four justices found the Keystone law unconstitutional, the court was forced to vacate the lower court's ruling. (See my previous blog on the subject here.) Thu, 15 Jan 2015 20:28:26 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EEC8FFCB-942B-4764-55172CC3E973EEF8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EEC8FFCB-942B-4764-55172CC3E973EEF8 Today, Rep. Fred Upton and the rest of his anti-environmental allies on the House Energy and Commerce Committee are probably suffering from a stingingbout of buyers' remorse as the Government Accountability Office report they requested didn't deliver the answer they were seeking. The Commerce Committee hoped to demonstrate that "In many instances, EPA has entered into settlements or consent decrees committing the agency to undertake significant new rule-makings subject to specific timelines or schedules, including rule-makings that may result in substantial new compliance costs." Instead, what they got was the truth. Settlement agreements are rarely used. When they are used, they are simply requiring the Agency to complete a rule it is already mandated to complete by Congress. The timing of the report is impeccable as the U.S. Chamber of Commerce President Thomas Donohue spent a great deal of time this morning railing against so-called "sue and settle" tactics and calling for Congress to undertake forms to address it. Wed, 14 Jan 2015 20:25:57 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EA4476B8-0B93-9651-7BB790BFDC5AA1FA http://www.progressivereform.org/CPRBlog.cfm?idBlog=EA4476B8-0B93-9651-7BB790BFDC5AA1FA Today, the House of Representatives voted to pass the Regulatory Accountability Act of 2015, which would amend the Administrative Procedure Act (APA) to add over 74 new procedural requirements to the rule-making process, including more than 29 new "documentation" requirements. The goal of administrative procedure is to ensure that the government's adoption of regulation is accountable and fair, but not at the expense of hamstringing the ability of agencies to fulfill the public interest. The House obviously has no such concern. Agencies already take four to eight years to promulgate any type of complex and controversial regulation, and the new requirements would add another two to three years or more to the process. House Republicans voted today to delay clean air, clean water, safer workplaces, and less toxic products for their constituents. In addition, they have given Wall Street a green light to re-engage in behavior risky enough to collect enormous profits while taxpayers are left footing the bill for the inevitable devastating consequences. Tue, 13 Jan 2015 20:23:10 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E4C97690-AADC-99C0-1E4C35D29E591782 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E4C97690-AADC-99C0-1E4C35D29E591782 A year ago, about 300,000 people in and around Charleston, West Virginia, lost their drinking water source when thousands of gallons of a toxic chemical known as MCHM (4-methylcyclohexanemethanol) leaked into the nearby Elk River through a hole in a rusted-out storage tank. Last month, the wheels of justice began to catch up with the owners of the responsible company when they were indicted by U.S. Attorney Booth Goodwin. Coincidentally, the West Virginia indictments came down on the same day that the Justice Department charged 14 people in Massachusetts for their role in producing and distributing meningitis-tainted steroid injections that killed 64 people. The same-day indictments framed a question business leaders would do well to contemplate: When do corporations and their executives cross the line between unavoidable human error and preventable criminal misconduct? Prosecutors seem increasingly ready to push reckless management to the criminal side of the line as one corporate fiasco after another claims lives and causes hugely expensive damage to communities and local economies. Fri, 09 Jan 2015 20:20:28 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CFFA2E23-B8DF-601A-95205C5C3FE9CD1F http://www.progressivereform.org/CPRBlog.cfm?idBlog=CFFA2E23-B8DF-601A-95205C5C3FE9CD1F This week, House Republicans re-introduced the "Regulatory Accountability Act of 2015," (H.R. 185). Proponents of the bill are claiming that it would "modernize" the rule-making process and streamline government inefficiencies. In fact, the RAA would bog down attempts by federal agencies to protect our health, safety and environment in red tape by adding over 74 new requirements to the rule-making process, including over 29 new "documentation" requirements. Center for Progressive Reform Senior Analyst James Goodwin compiled a list of all the potential requirements for agency rule-making included in the bill. Goodwin notes that, "most of the requirements are nonsensical that at best add nothing to the rulemaking process - and at worst distract agencies from those considerations that would lead to better quality rules." The full, damning list is copied below. Adding extensive paperwork and bureaucratic burdens to the rule-making process would threaten the President's initiative to move forward on his clean energy plan and could prevent agencies from issuing crucial safeguards to protect workers and the public health. Fri, 09 Jan 2015 20:13:37 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CFEFB5B4-9B44-75BE-CF2636189D408F57 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CFEFB5B4-9B44-75BE-CF2636189D408F57 We are closing out the "Path to Progress" series for this year with a potential bright spot. In its Fall 2014 Regulatory Agenda, the Obama Administration set a target date of March 2015 for finalizing new rules designed to prevent and minimize the consequences of derailments in trains carrying crude oil and other highly hazardous materials. If the Department of Transportation is able to accomplish that feat, it would beat even our own proposed schedule - a welcome achievement. We are looking forward to seeing that entry on our arrivals board turn over to "arrived." We're looking forward to it because crude shipments by rail continue to expand, and millions of us are living in a blast zone. As our 13 Essential Regulatory Actions explains, domestic crude production is booming (at least for now) because of this administration's regulatory acquiescence to - and the oil industry's unbridled advances in - fracking and horizontal drilling. In North Dakota and elsewhere, oil companies are simply sucking so much oil out of the ground that the producers are looking for any possible way to transport it to refineries. One of the non-conventional methods is to load the crude oil on trains. But because the shipments originate in shale formations that are far removed from refineries, the risks of derailment are significant. Tue, 23 Dec 2014 11:53:32 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=780671EC-EDD5-05BD-BA13A8675B40AA5E http://www.progressivereform.org/CPRBlog.cfm?idBlog=780671EC-EDD5-05BD-BA13A8675B40AA5E Today, the EPA announced national standards governing coal waste from coal-fired power plants, also known as coal ash. The rule does not treat coal ash as a hazardous material, but as household garbage. CPR President and University of Maryland law professor Rena Steinzor reacted to the classification: It's bitterly disappointing that the electric utility industry, which earns profits hand over fist, has succeeded in bamboozling the White House to gut this rule. Originally designed by EPA to prevent fatalities, injuries, and grave long-term damage to the public's health, the rule was caught in the cross hairs of naysaying economists on the President's staff, who invented the misguided and subversive notion that if coal ash dumps were cleaned up, coal ash could not be recycled. In fact, a strong rule that makes it more expensive to dispose of coal ash could only result in more of it being recycled, especially because EPA never proposed to place any restrictions on recycling. Coal-fired power plants produce an astounding 100 million tons of coal ash annually. For decades, utilities dumped this enormous quantity of waste into pits in the ground, where rain turned the ash into inky sludge. Unwilling to face the growing risk posed by the dumps, the companies kept shoring up the fragile walls of such dumps with the functional equivalent of chewing gum and spit. As smokestack scrubbers were installed to keep toxic metals like mercury and arsenic out of the air, these pollutants did not disappear, but instead fell down the stack into the ash, converting it into even more dangerous waste. Two recent spills--from a Duke Energy site in North Carolina and from a Tennessee Valley Authority site in Kingston, Tennessee--should have been the only wake-up call we needed to compel the companies to rebuild these sites before people are killed by spills and drinking water is ruined by leaks out of the bottom of the dumps. Instead, the White House shut down a strong EPA rule and insisted on the pitifully weak alternative issued today, which treats coal ash as if it was household garbage and leaves it up to the tender mercies of state regulators to chase around after utility executives who have only to call their political bosses to shut down any further controls. When--not if--the next spill happens, the White House will share the blame. We can only pray that no one is caught in the path of a river of sludge. Fri, 19 Dec 2014 14:36:27 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=640CB95D-FDA7-0908-21A7D01CB2CCD81A http://www.progressivereform.org/CPRBlog.cfm?idBlog=640CB95D-FDA7-0908-21A7D01CB2CCD81A The main tool available to the Environmental Protection Agency (EPA) to limit the amount of pollution discharged into the nation's waterways is a system of permits issued to polluters that restricts how much they may discharge. This permitting scheme, the National Pollutant Discharge Elimination System (NPDES), requires permittees to monitor their operations and report back to the EPA or an approved state environmental agency. On those data rest EPA's ability to enforce the terms of the permits, and thus control pollution that is harmful to the environment and human health. NPDES permit-holders are required to submit annual reports that include information on whether the polluter met the terms of the permit. Those reports are among the most important compliance assurance and enforcement tools available to the EPA, the states, and, by extension, the communities affected by polluting operations. Thu, 18 Dec 2014 14:44:03 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5EED7649-DCA1-2AD2-3E4168C12C76296B http://www.progressivereform.org/CPRBlog.cfm?idBlog=5EED7649-DCA1-2AD2-3E4168C12C76296B Today, Nebraska Appleseed, the Southern Poverty Law Center, and several allied organizations sent a letter to OSHA requesting a response to their petition for a rulemaking on work speed in poultry and meatpacking plants. The groups originally submitted the petition to OSHA over a year ago, and it's been radio silence ever since. Meanwhile, tens of thousands of workers, most low-income and socially vulnerable, continue to work in conditions that lead to crippling musculoskeletal disorders. The workers' advocates who submitted the petition had the misfortune of dropping it in the mail just days before the 2013 government shutdown, so at the time some commentators cut the agency some slack, noting that 90 percent of the agency's staff - including everyone in the standard-setting office - were laid off. But that excuse is no longer relevant, and evidence of the need for the rule continues to pile up. Wed, 17 Dec 2014 17:01:04 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5A448FE2-92D2-DD29-FF672EB03488E6BD http://www.progressivereform.org/CPRBlog.cfm?idBlog=5A448FE2-92D2-DD29-FF672EB03488E6BD CPR President Rena Steinzor issued the following statement in response to today's announcement that a grand jury had indicted owners and managers of Freedom Industries in connection with the massive leak of 4-methylcyclohexanemethanol (MHCM) that fouled the Elk River and triggered a drinking water ban for 300,000 residents earlier this year: Booth Goodwin continues to distinguish himself as a tough prosecutor who is willing to use the law to punish and deter those who threaten public health. Because this harsh chemical was never tested, we know that public health was damaged but not exactly how people were harmed or, for that matter, how much harm was done. The spill destroyed the peace of mind of tens of thousands of people and put everyone on bottled water for weeks. For that, the defendants should pay, with jail time and fines. Steinzor is a professor of law at the University of Maryland and the author of the recent book, Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction. Wed, 17 Dec 2014 14:09:50 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=59A7D7BF-F028-03AF-717D5E83849F5784 http://www.progressivereform.org/CPRBlog.cfm?idBlog=59A7D7BF-F028-03AF-717D5E83849F5784 When 29 miners died at Upper Big Branch or 11 workers died on the Deepwater Horizon, when 64 people died from tainted steroids, or when hundreds got Salmonella poisoning from peanut butter, did you ask yourself, 'Why not send the people responsible to jail?' You're not the only one. In her new book, Why Not Jail: Industrial Catastrophes, Corporate Malfeasance, and Government Inaction, CPR President Rena Steinzor asks the same question and concludes: The criminal justice system is as important to the ultimate embodiment of a society's values as it is in keeping the public peace. ... When the vicious cycle of racially discriminatory mass incarceration of poor people is juxtaposed against the vivid descriptions of the crimes committed by well-heeled corporate executives, it is hard to imagine the contrast does not have a corrosive effect on people's confidence in government institutions. Quite apart from the intrinsic unfairness of the failure to prosecute white collar crime far more aggressively, we sacrifice the benefits of deterring events that harm ordinary people. Why Not Jail is available now on Amazon (including a Kindle edition) and from the publisher, Cambridge University Press. It's a great read, using five case studies to explore the problems--and potential--for criminally prosecuting corporate malfeasance that harms public health, worker and consumer safety, and the environment. Order one now for yourself and your friends. 'Tis the season! Tue, 16 Dec 2014 14:21:49 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=548C0BCE-0573-4347-C80BD908EE10ADF6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=548C0BCE-0573-4347-C80BD908EE10ADF6 We'll soon learn the results of White House deliberations over EPA's long-delayed coal ash rule, one of the Essential 13 regulatory initiatives we've called upon President Barack Obama to complete before he leaves office. Under the terms of a consent decree, EPA is required to issue its new rule by Friday, December 19. As glad as we are to see this phase of the rule's tortuous odyssey come to a close, we suspect that court, not a victory party, will be the public interest community's next stop, despite a late-entry expose aired by 60 Minutes last week. In the universe of self-inflicted environmental wounds over the last two decades, any "10 best" list must include the brilliant decision to make operators of coal-fired power plants scrub smokestacks to keep mercury, arsenic, cadmium, and lead particles out of the air but neglecting to prevent them from picking the bad stuff up off the grate, carting it a short distance, and dumping it into giant pits in the ground. Utilities generate an astounding 100 million tons of such inky sludge annually. But because the federal government has never issued minimum requirements for such dumps, and state laws are rarely adequate, these pits have been left to grow wider, deeper, and taller, contaminating drinking water and threatening catastrophic spills. Mon, 15 Dec 2014 12:21:14 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4EF7A776-B353-838C-F1E6F4E8A6BC0D8F http://www.progressivereform.org/CPRBlog.cfm?idBlog=4EF7A776-B353-838C-F1E6F4E8A6BC0D8F [Under an] Obama Administration, the Environmental Protection Agency will strictly monitor and regulate pollution from large [industrial animal farms], with fines for those who violate tough air and water quality standards. - Sen. Barack Obama, 2008 The animal farms to which then-candidate Obama was referring are known as Concentrated Animal Feeding Operations (CAFOs), and they house tens, if not hundreds, of thousands of chickens per flock. The ballooning popularity of these factory farms - at least with industry - means they now raise more than 40 percent of U.S. livestock, and that number increases annually. Along the way, the farms generate approximately 500 million tons of manure each year - three times the amount of waste the human population of the U.S. produces. This waste contains excess nitrogen and phosphorus; pathogens, including bacteria and viruses; antibiotics; and heavy metals such as copper and arsenic. Unlike human waste, livestock waste is not treated. Rather, it is stored in piles, pits, and sheds and spread onto land. These pollutants pose a threat to human health and wildlife and put our nation's waterways - including the Chesapeake Bay - at risk. Fri, 12 Dec 2014 11:20:05 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3F4BC0AC-D02B-6140-867DDD65F0C54593 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3F4BC0AC-D02B-6140-867DDD65F0C54593 Contact: Erin Kesler Email: ekesler@progressivereform.org Telephone: (202) 747-0698 X4 What: CPR and the University of Maryland Francis King Carey School of Law will host a luncheon and Q&A session with MD Attorney General-elect Brian Frosh on the state of environmental enforcement in the Chesapeake Bay. Mr. Frosh will speak to a group of Bay advocates, University of Maryland faculty, attorneys at firms that represent Maryland businesses, and interested citizens and students, and take questions from the audience, including media. Background: Yesterday, the Center for Progressive Reform and Chesapeake Commons released an interactive map detailing the extent of pollution caused by Concentrated Animal Feeding Operations (CAFOs) along Maryland's Eastern Shore. The map, released concurrently with a report from the Environmental Integrity Project drawn from its data, relies on farmer-reported information to find that all but one of the sixty CAFOS examined has excessive phosphorus levels caused by over-application of manure. The pollution that results from the farms strains Maryland's efforts to enforce its pollution-control limits as mandated by federal and state law. Maryland's Governor-elect Larry Hogan vowed yesterday to fight any effort to implement the Phosphorous Management Tool (PMT) proposed under Governor O'Malley's Administration to deal with the pollution caused by overuse of phosphorous on the state's farms. When: Thursday, December 11, 2014 11:30 am - 1:00 pm Registration opens at 11:15 Where: Westminster Hall University of Maryland Carey School of Law 519 W. Fayette Street, Baltimore, MD Wed, 10 Dec 2014 08:17:14 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3457D6AF-A5AA-D1FE-E22C23AE3930B6A3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3457D6AF-A5AA-D1FE-E22C23AE3930B6A3 At the Maryland Farm Bureau's Annual Convention today, Maryland Governor-Elect Larry Hogan vowed to fight against the state's proposed phosphorus management tool (PMT) regulations. CPR President and University of Maryland law professor Rena Steinzor reacted to Hogan's comments, "It's truly a shame that Governor-elect Hogan is indicating so early that he is willing to jeopardize the restoration of the Chesapeake Bay by rejecting pollution controls out of hand rather than working with scientists to improve them. As the Governor-elect will soon discover, farmers have an interest in minimizing the use of excess fertilizer because it is as expensive as it is unnecessary. Large animal feeding operations looking for a cheap way to dispose of manure by dumping it on the ground year round, even in the dead of winter, may have an economic interest in defeating these controls. But for the rest of us, dead zones in the Bay are an economic, as well as a recreational, disaster." Today, CPR and the Chesapeake Commons released new interactive map that demonstrates that all but one industrial-scale chicken farm on Maryland's Eastern Shore reported having at least one field saturated with "excessive" soil phosphorus from the spreading of manure. The farmer-reported data comes from the Maryland Department of the Environment. New, science-based regulations would limit phosphorus application on farms with excessive soil phosphorus readings. The map, which shows soil phosphorus FIVs on fields on which farmers spread manure, demonstrates that the proposed and widely phosphorus management tool (PMT) desperately needed. "Maryland has a huge stake in restoring the health of the Chesapeake Bay, and it won't get there without addressing the phosphorus pollution running off of farms," said Steinzor, "The overwhelming phosphorus saturation along the Eastern Shore, which comes from the farmers themselves, cannot be ignored and Governor-elect Larry Hogan should reverse his opposition to the PMT for the good of the Chesapeake Bay and the millions of people who rely on this national treasure." Maryland already derives billions of dollars from the Bay, mainly from tourism, and stands to gain $4.6 billion more annually once the watershed is restored, according to a Chesapeake Bay Foundation report As part of the Chesapeake Bay-wide pollution diet, a federally led plan to restore the health of the Bay by 2025, Maryland must dramatically reduce water pollutants, including phosphorus. It will not be able to do this without dealing with its excess manure problem. As it stands now, Maryland farms contribute 53 percent of the state's total phosphorus loading into the Bay, and CAFOs make up a significant part of the problem. Mon, 08 Dec 2014 16:47:34 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2BDE6A34-FFEF-7FC5-A8BAE72F4AB616B4 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2BDE6A34-FFEF-7FC5-A8BAE72F4AB616B4 Without Better Phosphorus Management on Farms, Maryland Will Not Meet its Responsibility Under the Chesapeake Bay Pollution Diet A new interactive map from the Center for Progressive Reform (CPR) and the Chesapeake Commons demonstrates that all but one industrial-scale chicken farm on Maryland's Eastern Shore reported having at least one field saturated with "excessive" soil phosphorus from the spreading of manure. The data on the 60 concentrated animal feeding operations (CAFOs) in six counties was obtained from public planning documents from the Maryland Department of the Environment submitted between 2008 and 2014. When developing required comprehensive nutrient management plans (CNMPs), the 60 CAFOs in Dorchester, Talbot, Caroline, Wicomico, Worcester, and Somerset counties took soil samples from 1,022 fields to help plan their fertilization needs over the plan's five-year term. Of those fields, 623 - 62 percent - had soil phosphorus levels, known as Fertility Index Values (FIVs), in the excessive range. Excessive values tell farmers they should not apply additional phosphorus since crops are not able to absorb it and it ends up running off of fields, into streams, and eventually into the Chesapeake Bay, causing pollution. Yet, as a new Environmental Integrity Report found, farmers reported applying three times more phosphorus in chicken manure on their fields in 2012 than their crops needed. Mon, 08 Dec 2014 14:19:50 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2B579489-07A4-2CD9-E599B4620F36ADAD http://www.progressivereform.org/CPRBlog.cfm?idBlog=2B579489-07A4-2CD9-E599B4620F36ADAD Recent stories about "dead zones" in the Gulf of Mexico and the Chesapeake Bay are a reminder that despite progress on some water pollution fronts, we still have a serious problem to address. One politically popular approach to addressing the problem is a market-based solution, in which hard-to-regulate "non-point" pollution sources (farming, run-off, other sources without a "pollution pipe") and point sources engage in pollution-credit trades. So, for example, an industrial polluter might pay farmers to control run-off of fertilizer, thus reducing the flow of nutrients that cause dead zones. The interesting idea has been tried in some places, but has faltered because very few trades have actually been made, presumably because farmers lack incentive to overcome the challenges of striking deals and then implementing the pollution-control measures. It's just not their area of expertise. In an op-ed published today in the Houston Chronicle, CPR Member Scholar and University of North Carolina law professor Victor Flatt proposes a novel solution: Independent third-party aggregators who would serve as "market makers." In Flatt's proposal, they would assume the risk of the transaction, making it easier for farmers to simply sign on the dotted line, follow a pollution-control plan, then cash a check. He recently published research on the failings of trading systems in the Houston Law Review, along with his proposal for aggregators. According to the piece: In today's political environment, and with issues of agriculture and local control to contend with, no one expects Congress to act, and so the EPA and the states are left to use the legal tools they have under the Clean Water Act to address this problem. To their credit, the EPA and many states have promoted pollution "trades," wherein expensive point-source controls can be replaced with cheaper non-point-source controls. Paying farmers and other landowners to control runoff is a much cheaper way to reduce pollution than squeezing ever smaller improvements from industrial facilities. This means that more pollution can be controlled at lower overall cost. Mon, 08 Dec 2014 10:40:11 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2A8E5D51-DF96-2AD9-6860CE5C390E3717 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2A8E5D51-DF96-2AD9-6860CE5C390E3717 This week and next, CPR is using this space to highlight several key regulatory safeguards meant to ensure that the nation's rivers, lakes, and streams are protected from damaging pollution - rules that are currently under development by the Environmental Protection Agency (EPA) and included in our recent Issue Alert, Barack Obama's Path to Progress in 2015-16: Thirteen Essential Regulatory Actions. Today's post will highlight the pressing need to rein in stormwater pollution, while also examining some of the challenges the EPA must overcome as it drafts the rules by focusing on Maryland's experience regulating the pollution source. As rainwater flows over streets, parking lots, and rooftops and other impervious surfaces, it picks up a potent cocktail of pollutants that includes oil and grease from parking lots, pesticides and herbicides from lawns, and everything in between. This polluted stormwater makes its way through gutters and storm drains to the nearest stream, where it damages water quality and aquatic life. The more development that occurs, the more impervious surfaces are created, and the more stormwater pollution is produced. According to the EPA, a typical city block generates more than five times more runoff than a forested area of the same size. Fri, 05 Dec 2014 14:18:18 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1BE21749-F3F9-9B5A-69158A1F3A656DBC http://www.progressivereform.org/CPRBlog.cfm?idBlog=1BE21749-F3F9-9B5A-69158A1F3A656DBC Today, the Baltimore Sun published an op-ed by CPR President Rena Steinzor and Public Justice Center attorney Sally Dworak-Fisher entitled, "Maryland's whistleblower laws need teeth." According to the piece: Whistleblowers can help identify and put a stop to all sorts of illegal activity, if they're properly protected. Dozens of state and federal laws include provisions intended to shield whistleblowers from retaliatory actions by employers who have been outed. But this piecemeal approach, with different laws enforced by different agencies, is too complicated and has too many holes. To take the load off of overburdened state investigators, Marylanders need a new law that gives whistleblowers the right to sue employers who retaliate. A comprehensive law with that fail-safe mechanism would be an invaluable tool for promoting better practices at worksites across the state because it would encourage workers to raise red flags when their employers skirt the law and protect them when they have the courage to do so. To read it in full, click here. Steinzor is also the author of the recently released book, "Why Not Jail? Industrial Catastophes, Corporate Malfeasance, and Government Inaction." Fri, 05 Dec 2014 11:13:39 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1B335D85-AAAA-28E8-8D50099DEAB993EB http://www.progressivereform.org/CPRBlog.cfm?idBlog=1B335D85-AAAA-28E8-8D50099DEAB993EB Today the President addressed the Business Roundtable on the subject of regulation. When speaking about revising current regulations, he spoke about the need to keep child labor laws. According to CPR Executive Director Matt Shudtz: The President was right to start his remarks with the clear examples of how strong (or to the business lobby, "costly") regulations save lives and improve the environment. There are hundreds more where they came from, including our labor laws. That's what makes his later statement about child labor laws so jarring. Keep in mind, this is the same president whose administration pulled back a proposal that would have saved kids from green tobacco poisoning and dangerous farm equipment. He needs to do more than keep the laws on the books - he needs to be moving forward with new rules that address the many hazards that are currently unregulated. Wed, 03 Dec 2014 17:51:19 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=12597A65-A610-85C1-C1B6FED62EE6F4FF http://www.progressivereform.org/CPRBlog.cfm?idBlog=12597A65-A610-85C1-C1B6FED62EE6F4FF Over the next two weeks, CPR will publish a series of blog posts highlighting several key regulatory safeguards for protecting the integrity and health of U.S. water bodies against damaging pollution - rules that are currently under development by the Environmental Protection Agency (EPA) and included in our recent Issue Alert, Barack Obama's Path to Progress in 2015-16: Thirteen Essential Regulatory Actions. Today's post will examine the clean water safeguard that has attracted perhaps the most vociferous opposition from industrial and agricultural polluters along with their antiregulatory allies in Congress: the EPA's pending rule to clarify the definition of "Waters of the United States" under the Clean Water Act, which seeks to ensure that certain classes of critical water bodies - many of which are smaller and often overlooked - receive the statute's full protections. Wed, 03 Dec 2014 11:36:44 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=11021F22-D67A-92E7-9EDEDBD4225EF2D0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=11021F22-D67A-92E7-9EDEDBD4225EF2D0 This Giving Tuesday, I hope you'll consider donating to the Center for Progressive Reform. We've had a banner year and are looking forward to many great things in 2015. Above all, CPR's staff and Member Scholars promote a positive and progressive vision for environmental policy and workers' rights. We need your support to continue that work. Two days after the midterm elections, we released "Barack Obama's Path to Progress," an Issue Alert laying out an affirmative and politically realistic vision for real progress over the next two years. The Alert identifies 13 essential regulatory actions that the President can and should finish before he leaves office, steps that allow him to save thousands of lives, lock in significant environmental gains, and leave a solid legacy on the regulatory front. Importantly, finalizing these rules is entirely within the province of the Executive Branch, so obstructionism aside, he can get this done. I hope you've seen the wonderful infographics and blog posts that staff have put together to accompany the Alert. We'll continue to provide regular updates on the Obama Administration's progress on the "Essential 13," and we'll also work with our allies to press the administration into action. This year we also put forward a positive vision for reforms to state and local laws that would better protect workers' health and safety. Our "Winning Safer Workplaces" manual was a big hit with our allies, and now we're working to help turn the ideas from the manual into reality. Developing these forward-thinking products is no easy task, but our staff and Member Scholars get them done and still find the time to coordinate advocacy with allies, host webinars, meet with decisionmakers to promote our ideas, write case briefs, and blog with thoughtful and incisive commentary on the latest developments in regulation, environmental policy, and workers' rights. Your support will help us to continue this great work in 2015. I hope you'll make a donation. Thanks very much for your support. Tue, 02 Dec 2014 12:08:42 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0BF980B1-A5C6-57CE-741BB69C4AEEBBAE http://www.progressivereform.org/CPRBlog.cfm?idBlog=0BF980B1-A5C6-57CE-741BB69C4AEEBBAE Today is the deadline for comments from the public on EPA's proposed rule to limit carbon emission from existing power plants. CPR Member Scholar and University of North Carolina School of Law professor Victor Flatt submitted a comment on the rule. According to his comments: What I would like to focus on is suggesting that the agency definitively interpret Section 111(d) to allow states to utilize a greenhouse gas market reduction strategy that allows greenhouse gas reductions to come from any source. Section 111(d) specifies that the Best System of Emissions Reduction adopted by a state be modeled on the CAA's section 110, which governs the State Implementation Plans (SIPS). While the EPA has not had cause to consider the direct meaning of this before, I believe that it means that 111(d) provides a hybrid sort of emissions reduction based on proposed emissions reduction at the source, as contemplated by Section 111(b), but also extreme flexibility and state autonomy in selecting such reductions as contemplated for states meeting the NAAQS limits as required by Section 110. The EPA appears to support this interpretation in the body and text of the proposed rule by indicating at several junctures that the states do not have to use the four building blocks in order to meet their target reductions, and that the state can use "any" program that meets the targets, including trading systems in existing programs, such as California's AB32. Despite this apparent overall flexibility in the rulemaking itself, the technical support documents and the rulemaking itself in several places seem to forbid the possibility of true flexibility in reducing GHGs by noting that reductions must come from the "affected units." To read his comments in full click here. Mon, 01 Dec 2014 15:34:51 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=07493E11-9409-4939-939A080F08C49A40 http://www.progressivereform.org/CPRBlog.cfm?idBlog=07493E11-9409-4939-939A080F08C49A40 Yesterday, the Supreme Court granted cert. in several cases to hear the following question: "Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities." The fundamental issue is whether it was unreasonable for EPA to interpret section 112 to preclude consideration of cost at this particular stage of the regulatory process - not only different from what the Court thinks is the best interpretation, but a position that no reasonable person could take. The Supreme Court and lower courts have rarely found agency interpretations unreasonable in cases where the statute was ambiguous. This is called the Chevron Step 2 analysis, while deciding whether the statute is ambiguous is called Chevron Step 1. The rationales for the Chevron doctrine are that Congress meant agencies to work out statutory ambiguities and that it is better for politically accountable members of the executive branch to do that, as opposed to federal judges with lifetime appointments. Wed, 26 Nov 2014 13:51:57 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=ED713F5D-B1ED-F1E9-C22B7C9EA2186D3D http://www.progressivereform.org/CPRBlog.cfm?idBlog=ED713F5D-B1ED-F1E9-C22B7C9EA2186D3D Wed, 26 Nov 2014 10:01:57 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EC9F343A-B095-A82A-3094220FBB603EAD http://www.progressivereform.org/CPRBlog.cfm?idBlog=EC9F343A-B095-A82A-3094220FBB603EAD As I noted in an earlier post, families and friends all across the United States will gather to observe the Thanksgiving holiday tomorrow. Compared to many other countries, we are lucky that during such occasions we are able to focus on the celebrations enjoyed in the company of our loved ones - and not have to worry so much about whether the meal might cause a foodborne illness. This is because, while far from perfect, the United States has one of the best food safety systems in the world. With the food supply chain becoming increasingly globalized, however, a strong system for ensuring the safety of domestically produced foods is no longer enough. Already, 15 percent of the food consumed in the United States is imported. Imports make up 91 percent of our seafood, 60 percent of our fruits and vegetables, and 61 percent of our honey. Unfortunately, many of these imported foods come from countries - such as China, Vietnam, and Mexico - that lack effective health and safety regulation. Wed, 26 Nov 2014 09:45:43 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EC907816-F6DD-85AF-F15D5194EC2FB25B http://www.progressivereform.org/CPRBlog.cfm?idBlog=EC907816-F6DD-85AF-F15D5194EC2FB25B Today, the Supreme Court agreed to review a challenge to an EPA rule to reduce mercury pollution. The Utility Air Regulatory Group and the National Mining Association, and twenty-one states, appealed an April 2-1 federal appeals court ruling that upheld EPA's Mercury and Air Toxics Standards. According to Center for Progressive Reform President and University of Maryland School of Law professor Rena Steinzor: The Supreme Court's decision to grant review is lamentable. It's no surprise that the coal-fired power plants want to overturn EPA's carefully crafted controls on mercury and other toxic pollutants. But this rule was mandated by the 1990 Clean Air Act Amendments because mercury, in very small quantities, damages brain and nervous system development in children and babies in utero. The rule would control, for the first time, not just mercury but acid gases and heavy metals such as chromium, arsenic, and nickel. Cost-benefit analyses show that each year the rule will prevent as many as 11,000 premature deaths, 130,000 asthma attacks, and 3.2 million days when people cannot go to work or school. The electric utility industry, which has never met a public health safeguard that it can tolerate, wants the Supreme Court to micromanage the cost side of this equation, by requiring analysis not required by the Clean Air Act, and turning judges into economists who flyspeck thousands of pages of elaborate, impenetrable calculations. We can only hope the Court will resist that temptation. Tue, 25 Nov 2014 15:34:09 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E8A8C12C-BA2B-781B-A4721D5F957A0E41 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E8A8C12C-BA2B-781B-A4721D5F957A0E41 The Board of Directors of the Center for Progressive Reform today announced the selection of Matthew Shudtz as Executive Director of the 12-year-old organization. Shudtz, who succeeds Jake Caldwell, has been Acting Executive Director of CPR since July of this year. Shudtz joined CPR's staff in 2006 as a Policy Analyst, and was subsequently promoted to Senior Policy Analyst. His work has focused on OSHA and related workplace health and safety regulations and toxic chemical control and reform. He has authored or co-authored more than 20 CPR reports and publications including, "At the Company's Mercy: Protecting Contingent Workers from Unsafe Working Conditions," "Winning Safer Workplaces: A Manual for State and Local Policy Reform," and "Reforming TSCA: Progressive Principles for Toxic Risk Regulation." He holds a J.D. from the University of Maryland Francis King Carey School of Law and a B.S. in Earth and Environmental Engineering from Columbia University. Tue, 25 Nov 2014 13:19:59 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E82E2D0A-920E-A3B4-2F0B7C3E09ADD3D4 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E82E2D0A-920E-A3B4-2F0B7C3E09ADD3D4 CPR is on the hunt for an energetic, organized, and dedicated advocate to join our staff as a Policy Analyst. The focus of this position is restoring the Chesapeake Bay through strong implementation of the Bay TMDL. We are especially interested in candidates who have a background in the legal and policy issues related to both clean water and climate change adaptation. Expertise in GIS and other mapping software is a plus. For a full job description, please see our website. We are anxious to fill this position quickly, so the deadline for applications is midnight on December 21, 2014. Please submit a cover letter, resume, and brief writing sample to chesbayanalystjob@progressivereform.org. CPR Policy Analysts work closely with our network of more than 60 Member Scholars to promote strong regulation and progressive policies that will protect public health, worker and consumer safety, and the environment. This position also presents an exciting opportunity to work with our allies in the Chesapeake Bay who are advocating for improved enforcement of the laws and regulations already on the books. Please consider applying and share this announcement with colleagues who might be interested Tue, 25 Nov 2014 10:51:20 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E7A62372-CB53-FB80-60FCC8DD9A0121AF http://www.progressivereform.org/CPRBlog.cfm?idBlog=E7A62372-CB53-FB80-60FCC8DD9A0121AF Later this week, most of us in the United States will gather together for the simple but meaningful act of sharing a meal as a way to celebrate and reflect upon the relationships and blessings that enrich our lives. The menus will differ from table to table, and family to family, of course. But very few of us will give much thought to whether the food is safe to eat whether it's been tainted with bacteria or other pathogens. All things considered, the United States has a strong food safety system - among the best in the world - something to add to our list of things to be thankful for. But distressingly, the system relies on a series of programs that are designed to respond to food illness outbreaks after they've already started with the objective of limiting their scope and impact as much as possible. It's far less adept at preventing such outbreaks in the first place, a lesson we've been reminded of over the last several years as outbreaks have popped up again and again. Mon, 24 Nov 2014 11:19:43 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E299CD5C-9FA4-6968-ABB828416D184CE3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E299CD5C-9FA4-6968-ABB828416D184CE3 The House of Representatives has passed legislation (H.R. 1422) that prohibits academic scientists on EPA's Scientific Advisory committee from participating in "activities that directly or indirectly involve review of evaluation of their own work," but allows scientists who work for industry to serve on the Board as long as they reveal their respective conflicts of interest. To understand the House's real motives, it is necessary to appreciate how industry seeks to use scientific uncertainty as an excuse not to act on environmental problems. Senator Inhofe's claim that global climate change is a hoax is a well-known example of this tactic. Less visible is a decades long public relations, litigation, and advocacy campaign by corporate interests to manufacturer doubt about the science that supports environmental regulation. Thu, 20 Nov 2014 13:37:31 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CE7E7E23-0F36-A4ED-CD642605605E2446 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CE7E7E23-0F36-A4ED-CD642605605E2446 Next week in this space, we'll ask you to think about the food on your Thanksgiving table and what FDA ought to do to keep it safe. Today, I want to focus on how the food gets there - in particular, the work children contribute to the farms where our food and other crops are grown. Many people hold on to the image of children gathering eggs in the yard or dumping a pail of slop in front of an appreciative sow as the true and full extent of child farm labor. But the reality of life on a farm can be much different. In fact, the awful truth is that hundreds of kids who enjoyed Thanksgiving with their families last year won't be able to this year because they died in an agriculture-related incident in the last twelve months. Wed, 19 Nov 2014 17:09:49 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CA0E396B-F262-2B33-9EEE843B4FF616E8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CA0E396B-F262-2B33-9EEE843B4FF616E8 Today, the Third Circuit will hear arguments in a case to determine whether the Environmental Protection Agency (EPA) overstepped its authority when it established a pollution diet for the Chesapeake Bay. After decades of failed attempts to clean up the Bay, the pollution diet imposes strong, enforceable deadlines for cleanup. Even without distracting and misguided legal challenges from out-of-state lobbying groups, the restoration battle won't be easy. The plan has been in place since 2010 and still the Bay experienced the eighth largest dead zone in its history this past summer. The pollution diet, technically known as the "total maximum daily load" (TMDL), places a science-based cap on the total amount of nitrogen, phosphorus, and sediment that can enter the Bay from the six watershed states and Washington, DC. The TMDL controls "point" sources of pollution - the end of a pipe, for example - as well as "nonpoint" sources, such as most agricultural runoff. Today, the American Farm Bureau Federation and its supporters will make an argument that flies in the face of settled law. They will argue that by including sector-specific limits on pollution sources, the EPA infringed upon states' rights to make local land-use decisions. According to the Farm Bureau, the TMDL impermissibly dictates whether: [P]articular lands can be farmed or developed, and how; the amounts of fertilizer that may be applied to, or sediment that may be washed off from, particular farms, suburbs, land development projects, or city streets; and how to allocate the burdens of achieving water quality goals among municipal sewers, stormwater systems, septic systems, construction and development activities, farming, and other sources. Tue, 18 Nov 2014 10:19:38 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C37C787E-D59E-AF48-DB4C9EF02122C47E http://www.progressivereform.org/CPRBlog.cfm?idBlog=C37C787E-D59E-AF48-DB4C9EF02122C47E In 1997, when OSHA first placed the silica standard on its to-do list, Titanic and Good Will Hunting were hits at the box office and the Hanson Brothers' "MMMBop" was topping the charts. Pop culture has come a long way since then. OSHA, however, has only made modest progress on the silica rule. It took until 2013 - sixteen years - for OSHA to get from saying "we plan to create a new standard" to actually proposing the text. Now the agency is reviewing the mountain of public input submitted during the 11-month open comment period. Two million workers in the U.S. are exposed to the carcinogenic dust and public health experts estimate that every year more than 7,000 workers develop silicosis, and more than 200 die as a result. Mon, 17 Nov 2014 15:08:35 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BF5E64E8-A83B-9C48-23D64B75DE413B19 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BF5E64E8-A83B-9C48-23D64B75DE413B19 I have spent 38 years in Washington, D.C. as a close observer of the regulatory system, specifically the government's efforts to protect public health, worker and consumer safety, and the environment. The system's a mess. Regulatory failure has become so acute that we truly are frozen in a paradox. On one hand, people expect the government to ensure that air and water are clean, workers don't die on the job for avoidable reasons, food is safe, and drugs are efficacious. On the other, these expectations are trashed with alarming frequency. I wrote this book because I have lost near-term hope of reviving the agencies assigned these crucial tasks in a globalized economy. Instead, I argue that the most viable way to staunch the bleeding is to mount an aggressive, relentless effort to prosecute corporate managers for preventable accidents that take lives, inflict grave injury, and squander irreplaceable natural resources. Mon, 17 Nov 2014 12:08:10 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BEB83B35-957E-81C3-4A90D843AEBAF1FC http://www.progressivereform.org/CPRBlog.cfm?idBlog=BEB83B35-957E-81C3-4A90D843AEBAF1FC U.S. Attorney Booth Goodwin has set an example for every prosecutor in the country by indicting Don Blankenship, the venal, punitive, flamboyant, and reckless former CEO of Massey Energy. For years, Blankenship demanded updates on coal production every two hours and, the indictment reveals, browbeat senior managers to cut cost and violate crucial safety. In one handwritten note, he told one such target, "You have a kid to feed. Do your job." When the Upper Big Branch mine exploded, propelling flames at a speed of 1,000 feet/second in all directions from the point of ignition as far as two miles underground, Massey was directly responsible for the root causes of the tragedy. The families of the 29 men who died can take some solace that this courageous prosecution, by a prosecutor from coal country, takes the strongest possible stand to protect miners from the most reprehensible kind of greed. Steinzor is the author of the new book, Why Not Jail? Industrial Catastrophes, Corporate Malfeasance, and Government Inaction, published by Cambridge University Press. Thu, 13 Nov 2014 17:07:16 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AB32057B-AF38-0A05-584FF3B96F185F73 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AB32057B-AF38-0A05-584FF3B96F185F73 The commentary following last week's elections has largely been a variation on either of two themes: (1) how strong Republicans are now that they have secured majorities in both houses of Congress or (2) how correspondingly weak the Obama Administration will be for the remainder of its time in office when it comes to advancing its policy goals. This commentary may be true insofar as it relates to new legislation. (Even there, nothing will really change as the prospects for new legislation that the President can sign will be not much worse now than they have been in recent Congresses.) But when it comes to enforcement of laws that already on the books, President Obama holds the undisputed upper hand, and congressional Republicans remain effectively impotent. Last night's agreement between the United States and China to undertake significant cuts in greenhouse gas emission by 2030 illustrates that. Under the agreement, the United States will cut its emissions between 26 percent and 28 percent below 2005 levels by 2025, while China will reach its peak greenhouse gas emission by 2030 or earlier. Since the United States and China are far and away the two largest national emitters of greenhouse gases, this agreement marks a huge step in the international effort to avoid the most dangerous impacts of global climate disruption. It also helps pave the way for the rest of the global community to undertake significant emissions reductions measures of their own as part of future international treaty negotiations. Wed, 12 Nov 2014 11:03:08 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A4BE3F8C-DA6A-750B-D99EA34A74E9FF62 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A4BE3F8C-DA6A-750B-D99EA34A74E9FF62 A few months back, President Obama visited several kids receiving treatment for asthma at the Children's National Medical Center in Washington, DC. Afterwards, he reflected on the critical importance of environmental safeguards, such as those to limit ozone pollution, saying: [E]very time America has set clear rules and better standards for our air, our water, and our children's health - the warnings of the cynics have been wrong. They warned that doing something about the smog choking our cities, and acid rain poisoning our lakes, would kill business. It didn't. Our air got cleaner, acid rain was cut dramatically, and our economy kept growing. In just a short few weeks, Obama will have his first test of whether he's prepared to follow through on those words, and frankly, to make good on his legal obligation to do so, when the Environmental Protection Agency (EPA) announces whether or not it will establish a more protective national standard to limit ozone air pollution. The agency is under a judicial order to complete its review of the current National Ambient Air Quality Standard (NAAQS) for ozone and to propose strengthening it, if necessary, by December 1. The Clean Air Act requires the EPA to set the ozone NAAQS at a level "requisite to protect the public health" with "an adequate margin of safety." That's a standard that requires the agency to only consider public health and forbids it from considering polluters' clean-up costs - not an accident of drafting, by the way, but rather a clear reflection that Congress intended for the EPA to make sure the nation's air was safe to breathe. Wed, 12 Nov 2014 09:26:50 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A46562A2-D086-5E36-B0EC583D811F1486 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A46562A2-D086-5E36-B0EC583D811F1486 Last week brought a string of bad news as far as global climate disruption goes. The bummer parade began Sunday with the release of the Intergovernmental Panel on Climate Change's (IPCC) Fifth Assessment Synthesis report, which painted the direst picture yet of the looming global climate disruption threat, finding that "Continued emission of greenhouse gases will cause further warming and long-lasting changes in all components of the climate system, increasing the likelihood of severe, pervasive and irreversible impacts for people and ecosystems." Before it was possible for anyone to catch their breath, the mid-term election results delivered another punch to the environmental gut, as a wave of anti-environmental candidates emerged victorious, securing Republican control of the U.S. Senate and expanding their control of the U.S. House of Representatives. The cherry on top came when Sen. James Inhofe (R-Okla.), a politician best known for writing an entire book in which he dismissed climate disruption as the "greatest hoax ever perpetrated on the American people" - confirmed that he would chair the Senate Committee that will conduct oversight on the Environmental Protection Agency's (EPA) efforts to reduce U.S. greenhouse gas emissions. Things look grim, but not all hope is lost for making meaningful progress on the issue of climate disruption. While a comprehensive bill to reduce greenhouse gas emissions is unlikely to emerge from Congress anytime soon, President Obama already has ample authority to tackle the largest emitters using the existing provisions of the Clean Air Act, as the U.S. Supreme Court has repeatedly confirmed. Fortunately, Obama is already putting that authority to good use with a pair of pending rules that would establish national performance standards to limit greenhouse gas emissions from future and existing fossil-fueled power plants. These rules make up one of the 13 essential regulatory actions highlighted in CPR's recent Issue Alert on safeguards that the Obama Administration can and should implement before its term in office expires. By finalizing these regulatory actions, Obama can not only deliver significant benefits to the American public; he can also help secure his legacy on important public health, safety, and environmental issues. Mon, 10 Nov 2014 06:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=97763645-B578-FEF4-CAAB96666B7E696A http://www.progressivereform.org/CPRBlog.cfm?idBlog=97763645-B578-FEF4-CAAB96666B7E696A Last Sunday, the New York Times ran the best of dozens of stories about how President Obama will behave in the last quarter of his eight years in office. Veteran political reporters Peter Baker and Michael Shear wrote: "As the President's advisers map out the next two years, they have focused on three broad categories: agenda items he can advance without Congress, legislation that might emerge from a newfound spirit of compromise with Republicans, and issues that Mr. Obama can promote even without hope of passage as a way to frame the party's core beliefs heading into 2016." Spinning this message with his usual pungency, long-time adviser David Axelrod declared: "What he can't do and won't do is put his feet up on the desk and cross days off the calendar." The world is unlikely to leave the President any space for malingering, and his most vehement congressional critics are likely to attack him with such fervor that the faint path toward legislative compromise vanishes. Given these harsh realities, what the President can and should do to build an affirmative legacy is to accomplish well-organized executive actions that would protect public health, ensure the safety of workers and consumers, and preserve the environment. His harshest congressional critics are only marginally relevant to such an initiative. They'll keep screeching about the outrage of the Obama Imperial Presidency, and may even get their act together to pass appropriations riders to kill executive actions they intensely dislike. With his veto pen at the ready, though, the President has the power to drive right through such obstacles, earning applause from every quarter except the regulated industries that already treat him with disdain. Today, CPR is releasing a comprehensive new Issue Alert that sets out an affirmative agenda of the 13 essential regulatory actions the Obama Administration could and should accomplish with the active participation of EPA Administrator Gina McCarthy, FDA Commissioner Margaret Hamburg, DOL Secretary Thomas Perez, DOT Secretary Anthony Foxx, and under the leadership of a specially appointed senior White House point person. The Issue Alert, entitled Barack Obama's Path to Progress in 2015-16: Thirteen Essential Regulatory Actions, explains how President Obama could save tens of thousands of lives lost annually as a result of harmful air pollution, avoid crippling diseases from asthma to severe food poisoning, protect children as young as twelve from tobacco poisoning, clear the lungs of hundreds of thousands of workers who needlessly inhale sharp particles of silica dust, and restore America's great waters now plagued by ruinous dead zones. Fri, 07 Nov 2014 06:00:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=81507479-A667-EFA1-671DFE3DFF6D068B http://www.progressivereform.org/CPRBlog.cfm?idBlog=81507479-A667-EFA1-671DFE3DFF6D068B One curse of being a two-term president is that in your last two years, you must endure a conversation about whether you're still relevant. For Barack Obama, that conversation is about to go kick into high gear. The pundits will observe, correctly, that his legislative agenda has little chance of moving through the new Congress, although that's been true since 2011, of course. So what is the path to progress for Barack Obama in these last two years of his administration? By what means can he add to his legacy, one that includes monumental health care reform, saving the economy, salvaging the automobile industry, subjecting the financial sector to some much needed regulation, and more? And how can anything of use be accomplished with a Congress dead-set against cooperation? Actually, it's quite straightforward, and we've been urging it on him for a couple years now. The President needs to follow up on his oft-uttered commitment to use executive power to do the people's business. He doesn't need to strain the boundaries of his authority one bit. He simply needs to send the clear message to the various departments of government, particularly those engaged in regulation, to get moving. And he needs to make sure that his own White House Office of Information and Regulatory Affairs contributes to the effort. Wed, 05 Nov 2014 02:44:40 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7D38E941-A0F2-7347-2F911C5F1866C486 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7D38E941-A0F2-7347-2F911C5F1866C486 Today, brave workers at a Wayne Farms poultry slaughterhouse have a reason to celebrate a milestone in their struggle for justice. With help from lawyers at the Southern Poverty Law Center, they filed a complaint with OSHA in April. They blew the whistle on conditions that included dangerous work speeds that caused serious injuries, as well as denying subsequent medical treatment, and the firing of workers who reported their concerns. The agency released some results from its inspection, proposing significant fines against Wayne Farms for the deplorable conditions the workers continue to face. Wed, 29 Oct 2014 16:27:12 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5D6016E3-E2B7-F84A-3B42146570B65F27 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5D6016E3-E2B7-F84A-3B42146570B65F27 After ringing its hands for nigh on four years, EPA has at last coughed up a final coal ash rule. Of course, no one but the White House staff will know what it says until the White House releases it in absolutely final form. Nevertheless, the staff will now engage in the charade of hosting multiple appearances by various interest groups that want to tell the President's people about those concerns without really knowing what they should be talking about. EPA is due in court on December 19 to explain to a judge what rule it has written. We can only hope that it is not the pale alternative crafted by the White House and put out for comment. That pitiful compromise would perpetuate the status quo, with the states left to continue to do a bad job at overseeing these huge pits in the ground that will inevitably burst, spilling toxic sludge across the landscape. Tue, 28 Oct 2014 17:09:45 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=58609D71-0591-A766-D5533AF96DA1DAFC http://www.progressivereform.org/CPRBlog.cfm?idBlog=58609D71-0591-A766-D5533AF96DA1DAFC This week, CPR President Rena Steinzor and I joined with the Maryland Clean Agriculture Coalition to submit comments to the Maryland Department of the Environment (MDE) urging the state to strengthen the permit that regulates Maryland's nearly 600 industrial animal farms. MDE is in the process of renewing the General Discharge Permit, a one-size-fits-all permit that covers Concentrated Animal Feeding Operations (CAFOs) and Maryland Animal Feeding Operations (MAFOs) within the state (collectively known as Animal Feeding Operations (AFOs)). These farms raise hundreds of millions of animals each year and produce vast quantities of waste, playing a significant role in the ongoing degradation of the Chesapeake Bay and waterways throughout the state. Thu, 23 Oct 2014 13:24:29 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3D852314-C21A-B26E-7646AA301FEBEF6A http://www.progressivereform.org/CPRBlog.cfm?idBlog=3D852314-C21A-B26E-7646AA301FEBEF6A In an op-ed published in The Hill on Friday, CPR President Rena Steinzor makes the case that in appointing a successor to Attorney General Eric Holder, President Obama needs to find a prosecutor tough enough to go after corporate malfeasance with more than a series of comparatively weak deferred prosecution agreements. She writes, Of course, prosecutors can't send corporations to jail - they are inanimate paper entities. But forcing them to acknowledge that they broke criminal laws is more than a symbolic gesture, which is why corporate lawyers work so hard to avoid such outcomes. The stigma of such guilty pleas lasts, rightly spooking existing and would-be investors. Holder's record in this area is tainted by his embrace of the "too big to jail" argument that the collateral damage from going after even the most serious corporate malefactors is intolerable. She writes, This egregious off-ramp was spawned by the distorted fable the Fortune 100 have spun to explain the demise of Arthur Andersen, which followed its gigantic client, Enron, out of business within months after the sham finances they had erected together hit the press. The fable attributes Andersen's collapse to a criminal indictment lodged by Justice Department prosecutors. In truth, its clients had deserted the firm in droves when it was first implicated in the scandal, and the disclosure that employees had shredded tons of paper as soon as Enron was discredited hastened this exodus. Tue, 14 Oct 2014 14:59:41 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0FD087A1-F602-0922-9A8B784FD9342281 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0FD087A1-F602-0922-9A8B784FD9342281 EPA's proposed new rule for greenhouse gas emissions from power plants gets a lot of things right. For one thing, it recognizes that electric utilities can employ a variety of measures to reduce greenhouse gas emissions. They can switch to natural gas or even renewable energy sources. They can fund end-use efficiency improvements - such as energy efficient windows, better insulation, and light bulbs that burn brightly even while they conserve electricity. All of these techniques reduce power plant emissions. So, EPA is right to make them building blocks for its rule. Mon, 13 Oct 2014 18:18:06 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0B546490-BB93-250F-E248E13707C840D8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0B546490-BB93-250F-E248E13707C840D8 Today, OSHA announced that it is seeking new ideas from stakeholders about preventing workplace injuries caused by exposure to harmful chemicals. The agency wants to identify new ways to develop Permissible Exposure Limits (PELs), the basic standards for reducing air contaminants. CPR's Executive Director Matthew Shudtz responded to the development: It's great that Dr. Michaels is continuing to seek new ways to eliminate or manage chemical hazards in the workplace. OSHA has been relying on outdated standards for too long. But rulemaking is not the only way to address these hazards. OSHA needs to use the enforcement tools it has available, especially the General Duty Clause. With the General Duty Clause, OSHA can cite employers who are lagging behind industry standards for chemical exposure. Last year, OSHA released new web-based tools to help employers voluntarily limit the exposure of workers to hazardous substances. In a blog Shudtz noted that the agency could use the General Duty Clause within the OSH Act to compel low-road employers to protect workerrs from harmful chemical exposure. According to the blog: As OSHA freely admits, the Permissible Exposure Limits (PELs) found in current regulations are out-of-date and inadequately protective. Employers may expose workers to chemicals up to those limits without incurring fines for violating the standard, even though the exposures are patently dangerous. Most were adopted in the early 1970s and were based on scientific research from the 1940s through 1960s. In the late 1980s, the agency undertook an effort to set new exposure limits for hundreds of chemicals in one fell swoop, only to be thwarted by a court that wanted more detailed analyses of each individual chemical exposure limit. Since then, OSHA has initiated and finalized just one new PEL - as part of a comprehensive standard for hexavalent chromium exposure - but only after Public Citizen and the Oil, Chemical and Atomic Workers Union petitioned the agency to do so and fought a protracted legal battle to get the rulemaking started and completed. In the meantime, non-governmental organizations have continued to update their own occupational exposure limits (OELs) for chemicals found in the workplace, which many employers implement voluntarily because they know that OSHA's standards don't do enough to protect workers. The broad recognition that workers face significant hazards even when chemical exposures are below OSHA's PELs presents an interesting question about employers' duty to protect their workers. Fortunately, Congress foresaw the potential for such a problem and included in the OSH Act a provision known as the General Duty Clause (GDC). Under the GDC, "Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." As interpreted by the Occupational Safety and Health Review Commission (OSHRC) and federal courts, OSHA must prove four elements to establish a GDC violation: 1. Employees are exposed to a hazard; 2. The hazard is recognized by the employer or the industry generally; 3. The exposure has caused or is likely to cause death or serious physical injury; and 4. There is a feasible means of abating the hazard. Elements (1) and (3) are not generally significant hurdles when dealing with toxic chemicals. The difficult points for OSHA to prove are that a chemical hazard is "recognized" and that there are feasible means of abatement. But with the new annotated table of exposure limits, employers are on notice that exposures below OSHA's PELs and above other organization's OELs present hazards that are recognized by the occupational health community and the industry generally. And the new substitute-chemical toolbox may provide feasible means of abating those hazards. GDC cases are not easy matters for OSHA's enforcement staff or the agency's lawyers, so we can't expect to see a flood of new cases in the wake of today's announcement. However, selective use of this enforcement theory could create a ripple effect that would ensure better protections for the many workers who are exposed to dangerous levels of toxins. Thu, 09 Oct 2014 16:05:27 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F64CFD26-E569-CA3F-42436BC4125A95AE http://www.progressivereform.org/CPRBlog.cfm?idBlog=F64CFD26-E569-CA3F-42436BC4125A95AE Ebola's natural reservoirs are animals, if only because human hosts die to too quickly. Outbreaks tend to occur in locations where changes in landscapes have brought animals and humans into closer contact. Thus, there is considerable speculation about whether ecological factors might be related to the current outbreak. (See here). At this point, at least, we don't really know. Still, it's clear that outbreaks of diseases like ebola strengthen the case for forest conservation. Which is also, obviously good for the environment. But that's not what I want to focus on here. Wed, 08 Oct 2014 13:19:31 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F08EB315-DFEA-07FE-B32A211BC20075D6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F08EB315-DFEA-07FE-B32A211BC20075D6 Apparently undeterred by all the bad press it has received lately, the Small Business Administration's (SBA) Office of Advocacy has cast its controversy-attracting lightning rod ever higher in the air by issuing a feeble comment letter attacking the Environmental Protection Agency's (EPA) pending rulemaking to define the scope of the Clean Water Act ("Waters of the US rule"). The letter is just the latest evidence that the SBA Office of Advocacy has no interest in working to advance the unique interests of real small businesses - in accordance with its clear legal mandate - but instead is entirely focused on seeking to block those rules that are opposed by large business interests and their conservative allies. In its recent scathing report, the Government Accountability Office (GAO) raised several disturbing questions about whether and to what extent the SBA Office of Advocacy is actually fulfilling its statutory mission of serving as a "voice for small businesses within the federal government." Of immediate relevance here, one of the key issues identified in the report was that the SBA Office of Advocacy was never able to provide any evidence of small business input it received to inform its decision intervene in rules or the substance of its comments letter. In other words, the SBA Office of Advocacy could never prove that its interventions were every actually prompted by small business concerns. As described below, the SBA Office of Advocacy's comment letter on the EPA's Waters of the US rule only adds to these questions - and its provides additional impetus for needed reforms and increased congressional oversight to ensure that the agency is not wasting taxpayer money and helping large businesses to the direct detriment of the small firms they are supposed to be helping. Thu, 02 Oct 2014 16:46:03 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D265AD26-0AC0-2141-1D40DF38449E0A54 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D265AD26-0AC0-2141-1D40DF38449E0A54 A Texas judge's award of attorney fees is a threat to all public interest groups, liberal or conservative. A couple of weeks ago, a federal district judge in Texas awarded over $6 million in attorneys' fees against the Sierra Club. Sierra Club had survived motions to dismiss and for summary judgment, only to lose at trial. The court awarded fees on the ground that the suit was frivolous. The combination of rulings - denying summary judgment but then calling a lawsuit frivolous - is virtually unheard of, at least in the absence of perjury by a witness or document tampering. It's hard to account for this peculiar ruling unless the judge was just cranky due to the summer heat in Waco. Thu, 18 Sep 2014 11:46:10 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=893A1210-B134-4F12-3BD8E9472A667B0B http://www.progressivereform.org/CPRBlog.cfm?idBlog=893A1210-B134-4F12-3BD8E9472A667B0B If you own a car, you're used to paying a registration fee every two years. It may not be your favorite activity, but you do it. And you recognize that the fees and others like it help offset the cost of making sure vehicles on Maryland's roads are safe, that their polluting emissions are within acceptable limits, and that the people who drive them are licensed to do so. But, in a report issued last fall (and an op-ed in the Baltimore Sun), CPR President Rena Steinzor and I pointed out that Maryland was not taking that same no-nonsense, even-handed approach to all pollution sources. Instead, state officials have given more than 500 concentrated animal feeding operations (CAFOs) a free ride since state oversight began in 2010, waiving more than $400,000 in legally mandated fees in 2013 alone. Fri, 12 Sep 2014 15:51:24 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6B346198-C5C5-D9EF-EBC46778C1540503 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6B346198-C5C5-D9EF-EBC46778C1540503 Today, the National Association of Manufacturers released a report produced by economic consultants Crain and Crain on the "cost of regulations to manufacturers and small businesses." CPR Senior Analyst James Goodwin responded to the study: Past Crain & Crain reports on the costs of regulation have been roundly and rightly criticized for unreliable research methods, including basing their studies on opinion polling. Not much has changed about their method in this latest iteration, unfortunately. They still pretend to project actual costs by relying on opinion surveys, and they still refuse to account for the enormous benefits of regulation to the economy and to Americans' health and well being. This is not surprising considering that National Association of Manufacturers V.P. Ross Eisenberg admits that they have instructed previous consultants to only look at the potential costs of regulations. The only good thing that can be said about this study is that at least the American taxpayer isn't footing the bill this time. Wed, 10 Sep 2014 14:06:51 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6085BA92-0541-8A3C-B281C6B2401442AF http://www.progressivereform.org/CPRBlog.cfm?idBlog=6085BA92-0541-8A3C-B281C6B2401442AF Having thoroughly tarnished their own reputations as well as that of the Small Business Administration's (SBA) Office of Advocacy, economists W. Mark Crain and Nicole V. Crain are now preparing to make the big leap from thoroughly discredited academics to straight up shills for corporate lobbyists working to undermine public protections. The National Association of Manufacturers (NAM), an industry trade group that vehemently opposes such policies as cleaning up air pollution and improving worker safety, yesterday announced that it will release a report tomorrow, prepared by the Crains, that purports to measure the "annual cost of federal regulations." That's essentially what the Crains have been claiming to do for the Office of Advocacy until now, so it's good news that at least it won't be taxpayer money that's footing the bill for their slanted research this time. Just to review the bidding, in 2010, the SBA Office of Advocacy rather infamously sponsored a similar report by the Crains. The key finding of the 2010 Crain and Crain report, which antiregulatory members of Congress and allied business groups and advocacy organizations have wasted little opportunity to cite, purported to find that the total costs of federal regulation in 2008 was $1.75 trillion. Tue, 09 Sep 2014 15:55:38 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5BC527CC-E44E-EBF0-82905B94395D1C30 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5BC527CC-E44E-EBF0-82905B94395D1C30 Today CPR Member Scholar and Indiana University School of Law professor Robert Fischman is testifying today for the House Committee on Natural Resources on potential amendments to the Endangered Species Act. According to the testimony: I. THE ENDANGERED SPECIES ACT SHOULD BE A LAST RESORT FOR CONSERVATION, NOT THE PRINCIPAL TOOL. Though Congress intended the ESA to conserve "the ecosystems upon which" imperiled species depend,1 the act almost exclusively focuses on preventing species from going extinct. By the time species are listed for protection under the ESA, populations are already so depleted that there remains little flexibility for further declines. The famous inflexibility of the Act, to "halt and reverse the trend toward species extinction, whatever the cost,"2 is borne of the emergency situation facing a species when it declines to the very brink of extinction. Isolated fragments of habitat, low genetic diversity, and precious few populations raise the costs of conservation and heighten the consequences of failure. To read the testimony in full click here. Tue, 09 Sep 2014 12:54:40 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5B1F8B63-FB25-3BAD-CAD072BDDB961EB9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5B1F8B63-FB25-3BAD-CAD072BDDB961EB9 Monday's Washington Post article on the massive oxygen-depleted areas in the Chesapeake Bay and Gulf of Mexico promised to uncover how "falter[ing]" "pollution curbs" were contributing to the dead zones. Instead, the article focused almost exclusively on the dead zones themselves, providing nothing on the vital, yet stalled, regulatory solutions. The article mentioned that fertilizer and manure washed from farms helped form the Chesapeake Bay dead zone, which was the eighth largest since record-keeping began. Yet it failed to mention that state and federal efforts to curb pollution from farms have faltered over and over again. Wed, 03 Sep 2014 16:55:18 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3D15A7CD-E35E-CDB6-3C5B7AEDCE8A7FBC http://www.progressivereform.org/CPRBlog.cfm?idBlog=3D15A7CD-E35E-CDB6-3C5B7AEDCE8A7FBC If you're an antiregulatory, anti-environment member of Congress, such as Sen. David Vitter (R-LA) or Darrell Issa (R-CA), how do you get the Government Accountability Office (GAO) to issue a report that criticizes the cost-benefit analyses that the Environmental Protection Agency (EPA) has performed on some of its recent rules? That's easy - you simply ask for one. Then, when the GAO issues the report, like it did a few weeks back, you can begin issuing press releases filled with invective and righteous indignation. The report's findings, you can assert, are smoking-gun evidence that the EPA is running amok, issuing burdensome rules that are harming small businesses and families. And just like that, you've conjured the latest antiregulatory, anti-EPA scandal du jour out of thin air. Vitter and Issa have followed this playbook to a T and will no doubt continue trying to spin political gold out of this meaningless hay as part of the Republican's broader strategy of using antiregulatory rhetoric to undermine the work of the Obama Administration while simultaneously boosting their electoral prospects in the fast approaching mid-term elections. "Rather than using a fair and open rulemaking process, EPA pushed through regulations using sloppy analysis without sufficiently informing Congress or the public of the economic impact," Issa predictably huffed following the report's release. Wed, 27 Aug 2014 12:49:18 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=18261B0B-C035-F9E8-B54A8D8DD8C5163E http://www.progressivereform.org/CPRBlog.cfm?idBlog=18261B0B-C035-F9E8-B54A8D8DD8C5163E FDA has stalled for 30 years in regulating antibiotics in animal feed. A court says that's O.K. The FDA seems to be convinced that current use of antibiotics in animal feed is a threat to human health. But the Second Circuit ruled recently in NRDC v. FDA that EPA has no duty to consider banning their use. That may seem ridiculous, but actually it's a very close case legally. The court's discussion of Massachusetts v. EPA as an administrative law precedent should be especially interesting to environmental lawyers. Wed, 20 Aug 2014 17:01:47 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F5028FEF-945C-4410-B0A1785144B2BE65 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F5028FEF-945C-4410-B0A1785144B2BE65 Only in Washington, D.C. is nothing portrayed as something. Out in the nation, not so much. And so it was late last week that the Obama Administration took a victory lap for not making life even more miserable for some of the most abused workers in America. Yup, despite the best efforts of the Occupational Safety and Health Administration (OSHA), which is supposed to watch out for workers' well-being, the U.S. Department of Agriculture (USDA), the life-long booster for corporate agriculture, gave a swift kick in the pants to all those low-wage people of color who make the chicken nuggets and chick filets that now dominate what's for dinner. Up until last Thursday, USDA was claiming loudly to anyone who would listen that it doesn't "do" worker protection. Then the agency did a full 180 in the middle of the road, and now claims it has addressed workers' concerns with the help of its new best friends at OSHA. Those workers are the folks who toil at workplaces so miserable that many states make it a crime to film inside them. Thu, 07 Aug 2014 11:40:03 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B0E95D65-EE8F-F3F8-705AA8028C5C28C6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B0E95D65-EE8F-F3F8-705AA8028C5C28C6 Richard Tol's 2013 article, "Targets for global climate policy: An overview," has been taken by some as a definitive summary of what economics has to say about climate change.[1] It became a central building block of Chapter 10 of the recent IPCC Working Group 2 report (Fifth Assessment Report, 2014), with some of its numbers appearing in the Working Group 2 Summary for Policymakers.[2] After extensive analysis of multiple results from a number of authors, Tol reaches strong and surprising conclusions: climate change will be a net benefit to the world economy until about 2.25°C of warming has occurred the optimal carbon tax is a mere $25/tC (or $7/tCO2) the economically "efficient" climate scenario is likely to lead to atmospheric concentration of greenhouse gases of more than 625 ppm CO2-equivalent by the end of this century; lower targets might have ruinously high costs Despite, in the end, almost acknowledging the peculiarity of these conclusions, Tol continues to claim that no compelling argument to the contrary has been made: "A convincing alternative to the intuitively incorrect conclusion that continued warming is optimum, is still elusive." Tol's conclusions in this article do not follow logically from his data and analysis. Though claiming an authoritative and objective stance, he offers, in fact, a controversial reading of climate economics. As he sees it (with my numbering) "There are 16 studies and 17 estimates of the global welfare impacts of climate change... "There are 75 studies of the social cost of carbon [marginal damages from another tonne of emissions], with 588 estimates... "...a single group of estimates [of the impacts of climate policy, found in one review article] ... includes the models with the best academic pedigree..." Each of these points is founded on faulty selection of data and analyses, and contains interpretive flaws that make Tol's facile conclusions unsupportable. First, it highlights 16 studies, some of them very old, from a handful of authors, as if they represented all we know about climate damages. Second, it identifies a larger number of studies of the social cost of carbon, more than half from the same handful of authors, and then focuses almost entirely on the subset of results with a high discount rate. Where it reports on my own work, the survey clearly misrepresents the original published source. Third, it purports to prove that low-carbon stabilization targets are expensive by ignoring models and analyses that reach these targets, but making ad hoc adjustments to other analyses that fail to describe a path to a stable climate. The field of economic analysis of climate change is a work in progress, with many interesting, sometimes contradictory, developments and approaches appearing in recent years. Most of the field, and most of what economists are writing about climate change, cannot be seen through the narrow, distorting lens of Tol's review article. To continue reading the full commentary, click here. Tue, 05 Aug 2014 18:05:04 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A7FD249B-BE8A-C0D3-6E8DB9CF4F387FBD http://www.progressivereform.org/CPRBlog.cfm?idBlog=A7FD249B-BE8A-C0D3-6E8DB9CF4F387FBD Over the past few years, as levels of greenhouse gases in the atmosphere have continued to rise, natural disasters in the United States and around the world have become ever-more frequent. In the U.S., in fact, extreme weather-related events, including severe droughts, floods, wildfires, windstorms and other disasters are now very often reported in the news media. The clear consensus among climate scientists is that - even though no single extreme event can be said to be directly caused by climate change - global climate disruption has already begun; and this human-created phenomenon is ultimately responsible for an increased incidence of extreme weather. Tue, 05 Aug 2014 17:58:31 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A7F70526-9040-1492-96589F2D38A905A8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A7F70526-9040-1492-96589F2D38A905A8 Imagine a government warning on tobacco products that gave nearly equal prominence to both the pleasures and pains of using tobacco products. The "warning" would tell citizens that whether they should use tobacco products or not was - despite the government's long practice of recommending against such use - actually a pretty close case. Tobacco use is just so pleasurable, it turns out, that its risks - of bad health, of early death - might be worth it.Or imagine a parent saying the same thing to her child: here are the risks of using tobacco products, she'd say, but here on the other side are the wonderful pleasures. You make the call; it's too close for me to judge. Despite its strangeness, this is exactly the kind of statement the White House and the Food and Drug Administration have collaborated in propounding in the context of a proposed rule deeming certain tobacco products subject to FDA regulation under the Family Smoking Prevention and Tobacco Control Act. Economists from the FDA and the White House's Office of Management and Budget published a study purporting to estimate the amount by which the health benefits of tobacco use reduction are offset by a loss of the pleasure of using such products. When the FDA's proposed rule on tobacco products went to the White House for review, White House economists, rather than placing this study in the dustbin where it belonged, doubled down on its strange analysis. Indeed, they ended up increasing the FDA's estimate of the extent to which the "lost pleasure" associated with reducing tobacco use offsets the health benefits to be gained. Mon, 04 Aug 2014 16:50:39 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A292A88C-A5D3-7033-EE27654E02DFA88A http://www.progressivereform.org/CPRBlog.cfm?idBlog=A292A88C-A5D3-7033-EE27654E02DFA88A In a press call today, USDA Secretary Tom Vilsack announced that the poultry slaughter "modernization" rule is final and effective immediately. CPR President Rena Steinzor reacted to the rule's finalization: The rule is a travesty from the perspective of every child who has chicken nuggets for lunch and every low-wage worker who stands in a fetid, overcrowded room cutting chicken carcasses thousands of times a day. The new inspection system will allow plants to operate their slaughtering and evisceration lines at speeds that have proven hazardous for workers. It will pull federal inspectors off the processing line, ensuring that carcasses caked in blood, guts, and feathers whir by at the rate of 2.3 bird per second. The Government Accountability Office has written two scathing reports on the scant data used in promulgating the rule and the Southern Poverty Law Center has released reports documenting the already harrowing musculoskeletal injuries poultry workers are subjected to. We're disappointed that the Obama administration has turned its back on workers and left consumers at the mercy of Big Chicken. Thu, 31 Jul 2014 17:30:29 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8E1DAED4-99E6-4302-22FAF27E32DB0820 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8E1DAED4-99E6-4302-22FAF27E32DB0820 Today, Roll Call published a piece by CPR President Rena Steinzor in support of the "Hide no Harm" bill. According to the piece: The "Hide No Harm Act" includes a definition of the "responsible corporate officer" against whom such cases could be brought, clarifying an existing legal doctrine by saying higher-level executives have the "responsibility and authority, by reason of his or her position in the business entity . . . to acquire knowledge of any serious danger." The key is that the person could or should have known, not that he or she admits to having known. It concludes: The Department of Justice is undoubtedly negotiating fervently with company lawyers to reach a corporate settlement. But the prospect of allowing GM to buy its way out of having caused at least 13 deaths without even admitting criminal liability, casts a shadow over the proceedings. Why should the responsible parties at GM escape prosecution because the corporate "person" that employs them can afford to pay a hefty monetary penalty, giving federal prosecutors brief bragging rights without deterring other bad actors? Why not jail is now the most pressing question. To read the piece in full, click here. Thu, 31 Jul 2014 13:00:19 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8D265A05-914C-5F64-56CC8CD793C6B253 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8D265A05-914C-5F64-56CC8CD793C6B253 We've received the bad news from impeccable sources that the much-criticized USDA poultry processing rule has passed White House review at record speed - 20 days, count 'em! - and will be released late this afternoon. As usual, the process of OIRA review was shrouded in secrecy, with affected stakeholders filing in and out of the White House to talk about a rule they had never seen to taciturn OIRA officials who had long since cut a deal with USDA. Of course, the late afternoon release is designed to forestall criticism in the same news cycle that will report the White House spin on the rule. But we know enough about it to make some basic observations. Our sources informed us that the rule will allow companies to have processing lines that run at the speed of 140 birds per minute - that's 2.3 chickens every single second, although it's also the current USDA maximum, allowing USDA to claim that the new rule doesn't make matters any worse. OSHA, which was deeply involved in negotiations with USDA, clearly views this outcome as a great victory because it reduces by 35 birds/minute the original and outlandish USDA proposal that line speeds increase to 175 birds/minute. But saving workers from the furthest reach of bad conditions without beginning to address their documented daily misery is incremental change, not victory. The plain truth is that study after study, including a recent NIOSH report, have documented severe ergonomic injuries at line speeds significantly below 140 birds/minute. OSHA didn't review those studies dispassionately in a rulemaking that would honor its mission of protecting workers from harm. Instead, it played a numbers game with USDA under the watchful eye of White House staffers, leaving an already bad working situation to fester. Wed, 30 Jul 2014 14:15:54 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=884524A5-02A7-E44B-9F66F02A1CE7CB31 http://www.progressivereform.org/CPRBlog.cfm?idBlog=884524A5-02A7-E44B-9F66F02A1CE7CB31 It must be something of a game for them. That's really the only explanation I can come up with for why the antiregulatory members of Congress seem so intent on competing with each other to see who can introduce the most outlandish, over-the-top anti-EPA bill. If it is a game, then its best competitors would have to include Senators John Barasso (R-WY) and David Vitter (R-LA) who earlier this month introduced S. 2613, the Secret Science Reform Act of 2014. If this bill sounds familiar, that's because it is identical to one that was introduced in the House in February by Rep. David Schweikert (R-AZ). At the time, a group of CPR Member Scholars sent a letter to the Subcommittee on the Environment of the House Committee on Science, Space, and Technology, of which Representative Schweikert is chair, to explain their concerns in anticipation of the subcommittee's legislative hearing on the bill. The bill, which the House Science Committee approved along party lines and now awaits full floor consideration, purports to prohibit the Environmental Protection Agency (EPA) from taking any action that is informed by scientific or technical information - including issuing new regulations - unless the EPA affirmatively makes all of that scientific or technical information fully available to the public. Since the EPA's mission is necessarily science-driven, this bill would pretty much cover everything the agency does. Mon, 28 Jul 2014 16:42:43 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7E7EA591-0073-1F71-64FF4E05023EC5B6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7E7EA591-0073-1F71-64FF4E05023EC5B6 As I noted here last week, the Government Accountability Office (GAO) published a report that delivered a scathing review of the Small Business Administration's (SBA) Office of Advocacy. The GAO report's general objective was to assess whether and to what extent the SBA Office of Advocacy is fulfilling its core mission of serving as a "voice for small businesses within the federal government," and accordingly looked at two of its most important activities for carrying out that core mission: sponsoring small business-centered economic research and participating in individual rulemakings that have a significant impact on small business interests. In contrast to most GAO reports - which are conspicuous for avoiding controversy and their dry, moderate tone - this one offered some uncharacteristically strong criticisms of the SBA Office of Advocacy. For example, after rejecting the SBA Office of Advocacy's feeble excuses for not taking any steps to verify the quality of information contained in a series of controversial studies on regulatory costs that the agency had sponsored, the GAO report opined, "We acknowledge that these reports may not necessarily be representative of all Advocacy's research efforts, but not substantiating the quality of the information in even one study could call into question the credibility of Advocacy's research program." (See page 15.) Elsewhere, the GAO report took the SBA Office of Advocacy to task for its complete failure to document their roundtable discussions, noting that this failure made it "difficult to determine the extent to which small businesses and related entities were represented at these events." (See page 18.) If the GAO seems frustrated, it's for good reason. Their review of the SBA Office of Advocacy's activities produced the following 15 disturbing revelations: Mon, 28 Jul 2014 14:36:27 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7E0B435A-AF31-3773-74F4C5EB1559B1E5 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7E0B435A-AF31-3773-74F4C5EB1559B1E5 Earlier today, the Government Accountability Office (GAO) published a scathing report, criticizing the regulatory work and research conducted by the Small Business Administration's (SBA) Office of Advocacy. For the past several years, CPR has worked to bring much-needed attention from policymakers, the press, and the public interest community to the SBA Office of Advocacy, which has long leveraged its powerful position in the rulemaking process to oppose stronger safeguards necessary for protecting people and the environment. Critically, as CPR's work reveals, the beneficiaries of the SBA Office of Advocacy's interventions have been large corporations and trade groups, to the detriment of the small businesses they are actually supposed to be helping. The report, Office of Advocacy Needs to Improve Controls over Research, Regulatory, and Workforce Planning Activities, was conducted in response to a request for a review of "Advocacy's activities" from the Subcommittee on Financial Services and General Government within the Senate Committee on Appropriations. The report notes that the subcommittee's request was made because "[q]uestions have recently been raised about Advocacy's efforts to represent small businesses in regulatory activities and some of its research on small business issues." Tue, 22 Jul 2014 17:11:29 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5FB309E7-A17D-9B23-8C226FFA32598403 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5FB309E7-A17D-9B23-8C226FFA32598403 New legislation introduced by Senator Blumenthal (D-CT) and co-sponsored by Sens. Bob Casey (D-Pa.) and Tom Harkin (D-Iowa) would ensure that corporate executives who knowingly market life-threatening products or continue unsafe business practices are held criminally responsible when people die or are injured. Under the Hide No Harm Act, key corporate managers will be required by law to report serious dangers to relevant government agencies, employees and affected members of the public. CPR Member Scholars wrote in support of the bill to Senators in a letter last month. According to the letter: The recent General Motors (GM) ignition switch scandal vividly illustrates the catastrophic consequences that can result when corporations fail to disclose the known dangers associated with their harmful business activities. The now highly profitable auto manufacturer - $3.8 billion last year alone - determined that the estimated $2.3-million-fix for the problem ($0.90 fix for 2.6 million cars total) was just too costly to undertake. Instead, GM concealed the problem for more than a decade as part a concerted campaign that included repeatedly lying to its customers, the media, and the National Highway Traffic Safety Administration (NHTSA), the federal agency charged with overseeing car safety. All the while, GM's customers continued to climb into cars that the company knew were not safe. GM admits that 13 people died in crashes caused by the faulty switch. Similar to GM, other companies appear to have prioritized profits ahead of public wellbeing in this manner. The available evidence indicates that in 2007 and 2008 Peanut Corporation of America knew its peanut paste had tested positive for salmonella, but shipped it out anyway, ultimately killing 9 and sickening 714. Similarly, government-led investigations suggest that the New England Compounding Center - the compounding pharmacy that sold fungal-contaminated medication leading to the 2012 meningitis outbreak that killed 64 people and sickened at least 751 others in 20 states - knew that it was not taking adequate precautions to ensure that the drugs it produced and packaged were safe. It is within Congress's power to ensure that corporations are properly held accountable for putting the public at unnecessary risk by failing to disclose the dangers of the business activities. As morally reprehensible as this behavior is, corporations face strong economic incentives to leave their customers and workers in the dark. Too many corporations will continue to act according to those incentives, unless Congress enacts some form of legislation that makes the costs of not warning the public too great to ignore. The letter concludes: If enacted, this bill would strongly discourage most companies from taking unreasonable risks with the lives and safety of their customers and workers. For those scofflaw companies who decide to keep the public in the dark anyway, the bill would provide a critical avenue for obtaining some measure of justice for those who harmed or killed as a result of those companies' failure to warn. We urge that you make it a top priority to enact legislation that would address the ongoing crisis of corporations failing to disclose to the public the dangers associated with their business activities, and in particular consider Senator Blumenthal's Hide No Harm Act. Tue, 15 Jul 2014 12:17:23 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5EA5D474-CAE5-AACD-5F38A6FB3B187EC8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5EA5D474-CAE5-AACD-5F38A6FB3B187EC8 I will never look at a construction site the same way again. Certain types of pollution - mostly sediment, nitrogen, and phosphorus - run into the Chesapeake Bay and fuel algal blooms, creating dead zones where crabs, oysters and other Bay life cannot survive. Indeed, the Chesapeake is on track to have an above-average dead zone this year. Construction sites are a major source of sediment runoff. When mud washes from a single construction site, it can damage three miles of downstream waters. Recovery can take up to a century. Maryland has rules that construction companies are supposed to follow to minimize runoff. These rules pay off: For every dollar spent keeping mud onsite, taxpayers save $100 or more in damages avoided. That's why I spent last Wednesday driving around Baltimore with four others checking to see whether constructions sites were following the rules. I learned that the most effective measure to prevent runoff is to quickly get disturbed soil under a dense blanket of straw mulch, then grass. Other measures, like the black fences you see at most construction sites, can't keep enough mud on the site to prevent pollution. Simply put, exposed soil equals pollution. Whenever you see exposed soil on a construction site, pollution will occur come the next rain. Tue, 15 Jul 2014 10:44:27 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3A431B61-9E6E-DA18-17184C8108DA344D http://www.progressivereform.org/CPRBlog.cfm?idBlog=3A431B61-9E6E-DA18-17184C8108DA344D The Environmental Protection Agency (EPA) has gone to exceeding lengths to defer to states' efforts to bring their water quality standards into the twenty-first century. But the state of Washington has shown the perils of this deferential posture, if the goals of the Clean Water Act (CWA) are ever to be reached for our nation's waters. After months and years of delay, Governor Jay Inslee held a press conference this week to unveil his long-awaited plan for updating Washington's water quality standards for toxic contaminants - standards currently premised on a fish consumption rate (FCR) derived from a 40-year-old survey of human exposure. Inslee's grand plan? Take one step forward, two (or so) steps backward ... and appeal to EPA for yet more time. Mon, 14 Jul 2014 14:27:54 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=35EA6EEB-B505-F7D9-DA66B1B44477A8EC http://www.progressivereform.org/CPRBlog.cfm?idBlog=35EA6EEB-B505-F7D9-DA66B1B44477A8EC Yesterday, USDA submitted its draft final rule on poultry slaughter "modernization" to OMB for formal review. This rule, as regular readers of CPR Blog will remember, would remove USDA inspectors from poultry slaughtering facilities, transfer some of their food safety and quality control duties to plant employees, and allow the plants to increase their line speeds to an astonishing 175 birds per minute. On top of that, the rule allows each plant to develop its own testing protocols for E. coli, salmonella, campylobacter and other food-safety concerns. It's the foxes guarding the henhouse, for sure. Along with many of our allies in the worker health and safety and food safety communities, we have been urging USDA since early 2012 to go back to the drawing board with this ill-advised rule. USDA published its proposed rule in January 2012 without consulting with its inspection advisory committee, without holding public meetings to solicit other stakeholders' views, and - especially galling - without seeking input from OSHA. In the two and a half years since USDA proposed the rule, we've seen a steady stream of bad news for the proponents of the rule: April 2013: NIOSH releases an interim Health Hazard Evaluation (HHE) report on a poultry slaughter facility that was attempting to get special permission to adopt the "modernized" inspection scheme before the final rule goes into effect. Interim HHE reports rarely surface publicly, but this one had such striking results that its release was inevitable. Among other findings, NIOSH discovered that 42 percent of worker-participants had evidence of carpal tunnel syndrome and 41 percent of worker-participants worked in jobs above industry standards for hand activity and force. April 2013: Kimberly Kindy, writing in the Washington Post, highlights the tragic story of a USDA inspector who died of kidney and lung failure potentially linked to the chemical brew that was used to disinfect chicken at the plant where he worked. Plants are likely to increase the use of these chemicals if the rule goes forward. September 2013: GAO criticizes USDA for failing to thoroughly evaluate the performance of pilot projects that USDA had initiated to test the validity of its "modernization" proposal. In its characteristically dry tone, GAO concluded: "USDA may not have assurance that its evaluation of the pilot project at young chicken plants provides the information necessary to support the proposed rule..." October 2013: Kimberly Kindy, writing in the Washington Post, highlights the potential for increased animal abuse problems if poultry slaughter facilities increase their line speeds as the rule would allow. March 2014: NIOSH releases its final HHE report on the facility described above, noting an "alarming prevalence" of carpal tunnel syndrome among workers in the plant and cautioning that "increasing the number of birds processed per worker may result in an even higher prevalence of carpal tunnel syndrome than seen in this NIOSH evaluation." April 2014: The NIOSH final report led to an "interagency throwdown," in which USDA officials tried to downplay the findings only to have their claims repudiated by NIOSH's Director, Dr. John Howard, who called USDA's spin-attempt "misleading." For workers and consumers, this rule presents huge risks. USDA has been operating in a black box since proposing the rule in early 2012, so it is unclear what changes might have been made to answer the concerns raised by the public interest community and other government agencies. OMB should send this rule back to USDA with a "return letter" that instructs the agency to at least release the draft publicly, if not start from scratch. Fri, 11 Jul 2014 12:51:29 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=261EFA8E-CF45-9CC8-79D53D1438C3439D http://www.progressivereform.org/CPRBlog.cfm?idBlog=261EFA8E-CF45-9CC8-79D53D1438C3439D The U.S. Department of Agriculture (USDA) sent its benighted poultry processing rule to the White House for final review. The millions of consumers who eat undercooked chicken at their peril and the beleaguered workers in these dank, overcrowded, and dangerous plants can only hope the President's people come to their senses over there and kill this misguided fiasco. Ordinarily, we would have hoped that Department of Labor secretary Tom Perez would have put his foot down before USDA proceeded with the final rule, but after months of pleas from the National Council of La Raza, African American labor advocates, trade unions, and consumer groups across the spectrum, he has remained aloof. Apparently, the economic needs of multi-billion dollar poultry processing companies that have brought us salmonella outbreak after salmonella outbreak will once again trump the needs of the consumers and workers, especially Hispanic and African American workers who, if they are lucky, manage to avoid cutting themselves too often on crowded assembly lines only to succumb to crippling ergonomic injuries a few years down the road. USDA claims that the rule will "modernize" the food safety system with respect to poultry grown and slaughtered in the U.S. This claim has got to be one of the greatest misrepresentations launched by the government so far this year. Instead, the rule makes a pair of very bad changes that benefit an industry undeserving of the public's trust: (1) it pulls hundreds of federal inspectors off the line at poultry plants so they won't be able to check birds for feces, blood, and feathers and (2) it allows chicken producers like Foster Farms, Perdue, and Pilgrim's Pride to speed the line up from 50-70 birds/minute to 175 - or close to three birds every second. In place, the rule imposes two laughable substitutes. The first is self-regulation by the chicken companies. USDA doesn't tell the companies what to test, how often to test, or what to do with test results, but rather leaves it up to each plant's managers to decide whether consumers and workers will be at too much "risk." Second, workers paid subsistence wages would assume the inspector's responsibilities, but the rule doesn't require any training on how they might approach that critical job. At three birds a second, and with the added job of hanging and processing the carcasses as they whip by, the idea that workers can do anything other than get hurt worse is quite remarkable. Fri, 11 Jul 2014 11:03:28 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=25BC3FDA-FE2B-279A-B104A115D1D6A067 http://www.progressivereform.org/CPRBlog.cfm?idBlog=25BC3FDA-FE2B-279A-B104A115D1D6A067 Today, CPR President Rena Steinzor testifes at a House Energy and Commerce Subcommittee on the Environment and the Economy Hearing entitled, "Constitutional Considerations: States vs. Federal Environmental Implementation Policy." According to her testimony: As I understand the situation, the Subcommittee's leadership called this hearing in part to explore the contradiction between the notion that legislation to reauthorize the Toxics Substances Control Act (TSCA) should preempt any state authority to regulate chemical products with the notion that the federal government should depend on the states to regulate coal ash and has no role to play in protecting the public from such threats. These positions are a dichotomy if there ever was one. The contradictory ideas that the federal government must dominate the field in one area but that the state government should be exclusively in control in another seems irreconcilable as a matter of principle. Of course, as a practical matter, these irreconcilable positions have consistent pragmatic outcomes: they help big business. The chemical industry feels much more confident about its ability to browbeat the Environmental Protection Agency (EPA) into quiescence under the weak provisions of the TSCA legislation under discussion, so long as proactive states like California are knocked out of the equation. The electric power industry is much happier submitting to state regulators, who, as the recent spill in North Carolina clearly illustrates, have done almost nothing to control the severe hazards of improper coal ash disposal than it would be dealing with EPA's more stringent regulatory proposals. Or, in other words, states should prevail as long as they aren't doing much to gore the ox of big business. Once they get started down the road to regulate more stringently, however, the federal government must step in to halt a "patchwork" of overly aggressive regulation. This debate has been going on, in one iteration or another, for decades. Congress has grappled with it, the Supreme Court has grappled with it, the states have participated in the debate, as has the Executive Branch, and out of all this intense debate have come two fundamental principles well-recognized by mainstream constitutional scholars: One. The wide range of federal programs dealing with health, safety, and the environment are grounded appropriately in the Commerce Clause. While the Supreme Court has imposed some limits on federal authority, they do not apply to the structure of the federal environmental law. Two. A coherent set of eminently reasonable principles defines the cooperative partnership that prevails in the health, safety, and environmental area, and I urge the subcommittee to return to these principles in allocating responsibility to federal and state governments. To read her testimony in full, click here. Fri, 11 Jul 2014 10:44:23 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=25AA9A38-F33E-AD5D-CA37290278546F2B http://www.progressivereform.org/CPRBlog.cfm?idBlog=25AA9A38-F33E-AD5D-CA37290278546F2B Pennsylvania, the source of nearly half of the nitrogen that makes its way into the Chesapeake Bay, is falling dangerously behind in controlling the pollutant. Delaware is dragging its feet on issuing pollution-control permits to industrial animal farms and wastewater treatment plants. Maryland has fallen behind on reissuing expired stormwater permits and is not on track to meet that sector's pollution-reduction goals. These are some of the findings of a series of reports the Environmental Protection Agency (EPA) issued late last week. EPA assessed the progress the seven jurisdictions within the Bay watershed - Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia, and Washington, D.C. - were making toward meeting the Chesapeake Bay Total Maximum Daily Load (TMDL), a sort of "pollution diet" that is at the heart of the federally led plan to restore the Chesapeake Bay by 2025. Along with the reports, EPA announced that it would create consequences for states that are falling behind. It will immediately increase its oversight of Pennsylvania's agriculture sector and has proposed increasing oversight of specific sectors in Delaware, Maryland, and Virginia unless the states meet certain conditions. EPA also threatened to withhold grant money in Delaware, Maryland, Pennsylvania, and Virginia unless deadlines are met. CPR's newest Issue Alert, co-authored by Rena Steinzor and me, breaks down each jurisdiction's progress and challenges in meeting the TMDL's deadlines. In the Alert, we applaud EPA for demonstrating its willingness to take action against lagging jurisdictions. Wed, 02 Jul 2014 11:26:16 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F777D77B-D8C4-880F-606ECF4EBEF14BA2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F777D77B-D8C4-880F-606ECF4EBEF14BA2 A coalition of occupational health and safety experts submitted an amicus brief to the National Labor Relations Board (NLRB) last Thursday, urging the Board to reconsider its restrictive definition of "joint employer" for purposes of collective bargaining. It's a critical issue for workers as more and more are getting jobs through temp firms, staffing agencies, and other complex employment relationships. The workers who got your last-minute Father's Day gift from the Amazon warehouse to your front door, for instance, don't all get paychecks from Amazon, but they all operate at "Prime" speed because Amazon demands it. From a health and safety perspective, it's important that laws like the National Labor Relations Act (NLRA) and the Occupational Safety and Health Act (OSH Act) are interpreted broadly because the remedial purposes of those statutes - to ensure all workers can collectively bargain for better working conditions and to ensure that all workers are provided safe jobs - are best achieved when all of the employers with a connection to the job are at the table. Mon, 30 Jun 2014 14:54:24 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EDE99094-BD44-6987-19BBD973C2C98F1F http://www.progressivereform.org/CPRBlog.cfm?idBlog=EDE99094-BD44-6987-19BBD973C2C98F1F Cross-posted from The Pump Handle. Luis Castaneda Gomez, 34 and Jesus Martinez Benitez, 32 were asphyxiated in June 2011 when they were doing repairs inside a manhole. Their employer, Triangle Grading and Paving, was hired by the City of Durham, NC to make water line repairs. The firm had a history of violating worker safety regulations. Worse yet, it was not the first time an employee of Triangle Grading was killed on-the-job. Durham, like most municipalities, did not have effective policies in place to guard against giving business to safety scofflaws. But that changed in Durham when it adopted a policy in 2012 requiring all bidders to provide information on their safety performance. This example and many others are described in Winning Safer Workplaces: A Manual for State and Local Policy Reform. Liz Borkowski and I wrote the guide, along with the Center for Progressive Reform's James Goodwin, Michael Patoka, Matt Shudtz and law professor Rena Steinzor. The document includes more than a dozen ideas for reforms that would empower workers, make sure crime doesn't pay, and strengthen institutions. Ideas contained in the guide came from worker safety advocates and experts, including those with the National Council for Occupational Safety and Health (National COSH) and its network of COSH groups. Mary Vogel, the group's executive director, welcomed the manual. "It's exactly what's needed to help strategize, advocate and win improved health and safety so we can prevent illness, injury, and fatalities on the job." Thu, 26 Jun 2014 10:58:11 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D878079B-ED5C-48C1-0FDB75134F97E79E http://www.progressivereform.org/CPRBlog.cfm?idBlog=D878079B-ED5C-48C1-0FDB75134F97E79E Thousands of U.S. workers die on the job each year, the victims of unsafe workplaces. Countless more are injured, some permanently disabled, or exposed to toxic substances that could eventually harm or kill them. While the federal Occupational Safety and Health Administration has made progress to improve workplace safety since Congress passed the OSH Act in 1971, a new advocacy manual from the Center for Progressive Reform focuses on the progress on worker safety issues likely to come at the state and local levels, far from the general dysfunction in Washington. Winning Safer Workplaces: A Manual for State and Local Policy Reform, written by a team of lawyers and public health researchers, offers local advocacy groups a series of policy proposals, all ripe for enactment by state legislatures, city or county councils, or state or local agencies. Thu, 26 Jun 2014 10:30:20 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D85E7EA2-B784-9C5F-A58A0F3A123D8808 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D85E7EA2-B784-9C5F-A58A0F3A123D8808 In Utility Air Regulatory Group v. EPA, seven members of the Supreme Court upheld the most important feature of the EPA's Prevention of Significant Deterioration (PSD) program: the ability to require the vast majority of new and modified sources to install the "Best Available Control Technology" for reducing greenhouse gases (GHGs). As a consequence, eighty-three percent of significant new and modified sources will continue to be subject to the BACT requirement for their GHG emissions. Although the Court reversed, by a five-to-four vote, EPA's contention that greenhouse gas emissions alone could trigger the PSD program, that reversal will have little impact because it will eliminate PSD requirements for only about three percent of significant stationary GHG sources. Justice Scalia's majority opinion had some choice words for EPA, but it remains to be seen whether those words spell trouble for newly emerging climate regulations. Wed, 25 Jun 2014 11:48:04 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D37F47D4-C922-2A0B-E8B38FA11C99E4DF http://www.progressivereform.org/CPRBlog.cfm?idBlog=D37F47D4-C922-2A0B-E8B38FA11C99E4DF Direct implications are limited, but we'll be reading the tea leaves for future implications. Scholars, lawyers, and judges will be spending a lot of time dissecting today's ruling. Overall, it's a bit like yesterday's World Cup game - EPA didn't win outright but it didn't lose either. Here are three key questions with some initial thoughts: Mon, 23 Jun 2014 16:31:47 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CA364441-C1A2-CB2F-CA2F267C8143ECD8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CA364441-C1A2-CB2F-CA2F267C8143ECD8 Co-authored with David L. Markell Enforcement is widely acknowledged to be an indispensable feature of effective governance in the world of environmental protection and elsewhere. Unfortunately, criticisms of the U.S. government's efforts to enforce the environmental laws began almost with the inception of the Environmental Protection Agency (EPA) more than forty years ago - and they continue virtually unabated today. In a 2012 report, for example, the U.S. Government Accountability Office(GAO) noted that "EPA has reported that it is not achieving all of the environmental and public health benefits it expected . . . because of substantial rates of noncompliance." Former EPA Administrator Lisa Jackson acknowledged in 2009 that "[t]he level of significant non-compliance" with various Clean Water Act requirements had grown "unacceptably high." Even EPA's enforcement office has admitted significant shortcomings, noting that "violations are . . . too widespread, and enforcement too uneven." Assessments have found serious deficiencies in state enforcement performance too. This is a significant weak spot for environmental protection because of the central role that states play in the U.S. cooperative federalism system of environmental protection. Several looming challenges have exacerbated concerns about enforcement. In many areas of environmental regulation, the size of the regulated community has expanded dramatically, putting additional pressure on government data-gathering, monitoring, and enforcement capacities. For example, the number of point sources subject to CWA permitting requirements, such as those responsible for stormwater discharges and pesticide applications, doubled over a recent ten-year period. Mon, 23 Jun 2014 16:18:30 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CA29B871-EA28-9CC9-C150A1809B341DB4 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CA29B871-EA28-9CC9-C150A1809B341DB4 Power plants are not only one of the nation's largest sources of greenhouse gases, they are also a significant source of sulfur dioxide, nitrogen oxides, particulates, and mercury, all of which have direct public health and welfare consequences. EPA's recently proposed Clean Power Plan, which applies Clean Air Act s. 111(d) to reduce greenhouse gases (GHGs) from the nation's fleet of fossil-fuel power plants, will have important implications for these ubiquitous co-pollutants. Although the primary goal of the Clean Power Plan is to reduce GHGs, ancillary co-pollutant benefits are an important consideration in evaluating alternative mechanisms for controlling GHGs. The key to maximizing co-pollutant benefits will be shifting away from coal-fired power, the energy source that emits the highest levels of both GHGs and co-pollutants, and encouraging a more widespread shift from fossil fuels to no-carbon alternatives like consumer energy efficiency and renewable energy. Ultimately, notwithstanding environmental justice concerns about cap-and-trade programs, the most critical issue will be setting stringent targets that prompt change, not their particular regulatory forms. EPA's Clean Power Plan has laid the groundwork for a transformative and stringent approach by establishing a system-wide approach to reducing power sector emissions, but it remains to be seen whether the agency has established stringent enough targets to achieve s. 111(d)'s full potential to reduce both GHG and co-pollutant emissions. (This blog is based upon a longer article entitled: "Controlling Power Plants, The Co-Pollutant Implications of EPA's Clean Air Act s. 111(d) Options for Greenhouse Gases," 32 Virginia Envtl. L. J. 173 (2014).) EPA's Clean Power Plan Pursuant to CAA s. 111(d), EPA identified the "best system of emission reduction ... adequately demonstrated" (BSER) for reducing power plant emissions. Importantly, EPA determined that a system-wide approach, that takes advantage of both "inside the fence" options at power plants and "outside the fence" options, like renewable energy and consumer energy efficiency, constitutes BSER. EPA assessed each state's capacity to achieve reductions through available measures and set interim and final "carbon intensity" targets for each state to achieve. States will then be required to develop state-specific plans that demonstrate how they will achieve the EPA targets. Although EPA defined each state's target by identifying a range of available measures, EPA did not directly require each state to take the measures used to define its target. Instead, EPA gave each state the flexibility to achieve its target through whatever combination of mechanisms it chooses. Thu, 19 Jun 2014 18:03:02 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B5F017A0-9898-8948-A7C23E4BD1F88A04 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B5F017A0-9898-8948-A7C23E4BD1F88A04 With little notice in the West, India has just launched the most far-reaching corporate social responsibility (CSR) program in the world. The CSR law, which took effect April 1, requires large and mid-sized firms to contribute at least 2% of their pre-tax profits (averaged over the previous three years) to social, health, educational, or environmental causes. It also requires companies to prepare a formal CSR policy and to report annually on their CSR activities. The CSR law, section 135 of the Companies Act of 2013 was part of the first major overhaul of Indian corporate law in nearly sixty years. In February, the Ministry of Corporate Affairs issued regulations implementing the new law. The money involved is huge for India. The CSR requirement is expected to raise $2 to $5 billion annually for the social sector. A comparable 2% spending requirement in the United States would raise more than $48 billion per year, assuming it applied only to corporations. Even more money would be raised in the U.S. if such a requirement applied to "pass through" entities such as partnerships. Thu, 12 Jun 2014 13:12:52 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=90D7F9D9-EADF-B5EE-C47192EA6EBE75A5 http://www.progressivereform.org/CPRBlog.cfm?idBlog=90D7F9D9-EADF-B5EE-C47192EA6EBE75A5 OIRA should conduct a cost-benefit analysis of its own activities and explore alternatives to its current oversight methods. A White House office called OIRA polices regulations by other agencies in the executive branch. OIRA basically performs the role of a traditional regulator - it issues regulations that bind other agencies, and agencies need OIRA approval before they can issue their own regulations. Essentially, then OIRA regulates agencies like EPA the same way that those agencies regulate industry. Issuing regulatory mandates and permits is a very traditional form of regulation, often called command and control. There are a number of well-known criticisms of command-and-control regulation for being "one size fits all," too rigid, unable to take advantage of information held by the regulated entities, and economically inefficient. One might predict that OIRA's own regulations would suffer from similar flaws. To the extent that OIRA is trying to overcome these problems in other agencies, it might do well to reexamine its own activities applying the same standards. OIRA pushes agencies toward greater consideration of the costs of their mandates and toward consideration of alternatives to command and control. But maybe OIRA should turn some of its scrutiny inward to see how well it lives up to its own goals in its activities. Wed, 11 Jun 2014 15:10:37 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8C1FB26B-AC8B-08E7-894D468085A0F4AF http://www.progressivereform.org/CPRBlog.cfm?idBlog=8C1FB26B-AC8B-08E7-894D468085A0F4AF On Monday, June 9, 2014, the U.S. Supreme Court decided CTS Corp. v. Waldburger, --- U.S. ---, --- S. Ct. ---, 2014 WL 2560466 (June 9, 2014), a case that posed the seemingly simple legal question of whether the federal Comprehensive Environmental Response, Compensation, and Liability Act ("CERCLA," also known as Superfund), 42 U.S.C. s.s. 9601-9675, preempts state statues of repose. Behind that legal question, however, lies the issue of whether the plaintiffs landowners do or should have a state-law remedy for the fact that CTS Corporation contaminated their properties with toxic chemicals as part of its electronics business between 1959 and 1985. CTS sold the property in 1987, and the plaintiffs brought suit in 2011, alleging a state-law nuisance claim. North Carolina, the state where the properties are located and where the suit was filed, has a 10-year statute of repose. CTS argued that the statute of repose barred the plaintiffs' nuisance claims, and the U.S. Supreme Court, in what is basically a 7-2 decision with the majority opinion authored by Justice Kennedy, agreed. Wed, 11 Jun 2014 14:19:25 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8BF07397-9165-869F-8EF92F10DB47EA19 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8BF07397-9165-869F-8EF92F10DB47EA19 The EPA's June 2, 2014 announcement of a Clean Power Plan is momentous. On the surface, its scope, complexity, potential for myriad legal challenges and, not to mention, the difficulty of gathering reliable cost and benefit data, make it so. Mothers should advise their children to grow up to be energy lawyers, not cowboys. However, what makes this proposed rule more significant are the below the surface core principles and concepts that make the Clean Power Plan a game changer for the practice areas of environmental and energy law and policy. It is a historical curiosity that the field of environmental law preceded energy law in the 1970s. It is also a historical curiosity that these two disciplines developed largely independently of each other, even though they are naturally connected by the physical fuel cycle. Environmental consequences follow the fuel cycle from the exploration and extraction of the natural resources used to produce energy through their processing and distribution to their consumption and disposal. The two disciplines were driven by conflicting concerns, employed different metrics, and used different vocabularies and languages. Energy lawyers focused on efficiency in the exploration, extraction, and production of natural resources. Environmental lawyers focused on issues of ecosystem preservation, species protection, natural resources conservation, and human health improvement. Measuring the costs and benefits of energy production against environmental protection has proven to be frustrating, difficult, and contentious. Indeed, where energy lawyers were more familiar with costs and benefits; environmental lawyers were more comfortable with preservation and conservation aside from economic calculations. More often than not, the two sides simply talked past each other. Mon, 09 Jun 2014 13:18:25 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=816C39DA-FDD3-16D9-D9E3C389A100A4EA http://www.progressivereform.org/CPRBlog.cfm?idBlog=816C39DA-FDD3-16D9-D9E3C389A100A4EA On June 2, 2014, the United States Environmental Protection Agency issued its much awaited and debated proposed Clean Air Act Section 111(d) regulations to reduce greenhouse gas (GHG) emissions from existing electric utility generating units, colloquially referred to as power plants. And because the largest GHG emitters in this category are coal burning plants, such plants and linked businesses and coal-intensive jurisdictions all have nervously awaited these proposals. In an earlier blog analysis, I assessed the statutory language and how it provides EPA with considerable latitude to allow for flexibility and trading of pollution. Now we have the actual proposal, which in turn solicits comments as the next step in the notice and comment process. Weighing in at 645 pages, this proposal will be scrutinized by legions of lawyers, environmentalists, and political pundits in the coming months. Nevertheless, a quick review of this important proposal reveals its basic logic and strong legal basis. Most importantly, it provides a huge amount of flexibility and room for cost-effective trading and energy efficiency. It also is careful not to punish utilities and jurisdictions that have been leaders in their embrace of GHG reducing strategies and energy efficiency. If finalized, markets for energy efficiency and reduced energy demand should thrive, as should carbon trading markets. Tue, 03 Jun 2014 12:52:53 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=626EA67A-FD32-03A1-B65F7E786B75622A http://www.progressivereform.org/CPRBlog.cfm?idBlog=626EA67A-FD32-03A1-B65F7E786B75622A Today, Center for Progressive Reform Member Scholar Robert Verchick published an op-ed in New Orleans' Times-Picayune entitled, "Gov. Jindal, don't sign away our legal claims against BP." The piece notes: Governor Jindal will probably sign SB469, a bill designed to neutralize the Southeast Louisiana Flood Protection Authority - East's lawsuit against oil and gas companies. But does our governor realize that, if he signs this bill, he may also be killing scores of claims that his own his own state and associated local governments have brought against BP for the Macondo oil spill? For, whatever the governor or state lawmakers may believe, that is precisely what SB469 might do. SB469 clearly lists not only who can bring claims in Louisiana's coastal zone, but what kind of claims they can bring. Notably missing from its list are claims for economic losses and claims for natural resource damages under the Oil Pollution Act of 1990 (OPA) - the very basis for pending claims against BP. It continues: But the state, as well as several parishes, have already brought economic claims under OPA...So have coastal cities...And fire districts...And airports...And school districts...And SLFPAE itself, which presented a claim against BP for more than $79 million, mostly to recover tax revenues it lost because of the oil spill. These OPA claims are not frivolous or opportunistic. Indeed, Governor Jindal has said for months that one of the reasons he opposed the SLFPAE lawsuit is that he thought it threatened state and local governments' OPA claims against BP. communities that are bringing these claims were hit hard by the Macondo oil spill. They're trying to recover just some of what they lost. For example, in its OPA suit against BP, Jefferson Parish has alleged that it suffered: 1.Ecological damage 2.Damage to the quality of life of its citizens 3.Loss of sales tax revenues, use tax revenues, Parish tax revenues, inventory tax revenues, hotel and motel tax revenues, reverence tax revenues, royalties, rents and fees 4.Increased costs of providing services to the citizens of the Parish of Jefferson 5.Damage to the natural resources of the Parish of Jefferson 6.Increased costs for the monitoring of the health of its citizens and the treatment of physical and emotional problems related to the oil spill 7.Costs for educating and retraining employees 8.Increased promotional costs 9.Increased costs to borrow money 10.Increased costs for debt service 11.Loss of fees for permits and licenses 12.Loss of fines and forfeitures income 13.Increased administrative costs 14.Damages to the reputation and image of claimants in the business and tourism communities Because SB469 works retroactively, it could undo all of these claims. Did Governor Jindal know that, when he pushed SB469 in the legislature? To read the entire piece click here. Professor Verchick also drafted a memo with fellow CPR Member Scholars and law professors Christine Klein and William Andreen on the consequences of SB469's passage and they urge the Louisiana legislature to vote against the bill. The read the memo click here. Mon, 02 Jun 2014 17:31:33 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5E461E95-A613-A295-98D6BF9ED85C007E http://www.progressivereform.org/CPRBlog.cfm?idBlog=5E461E95-A613-A295-98D6BF9ED85C007E Megan Herzog has done a great job of explaining the background of the rules and summarizing the proposal in her blog posts. I just wanted to add a quick note about how EPA has structured its rules in light of possible legal challenges. The fundamental issue facing EPA is how to define the "best system" for reducing carbon emissions. Is it limited to technological upgrades at individual emitters? Or can it be broader, and if so, how broad? Industry is sure to argue that EPA can only set standards for individual plants that emit carbon, nothing more. Mon, 02 Jun 2014 14:20:45 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5D98D0F7-DB87-BC7F-A8A90D00DB21EEEB http://www.progressivereform.org/CPRBlog.cfm?idBlog=5D98D0F7-DB87-BC7F-A8A90D00DB21EEEB Last Friday (May 23), in Electric Power Supply Association v. FERC, a D.C. Circuit panel split 2-1 and vacatedOrder 745, a Federal Energy Regulatory Commission (FERC) rule designed to promote "demand response" (DR). DR is a rapidly growing and valuable means of reducing electricity demand, thereby benefiting consumers and the environment. It is also an important part of the Smart Grid, in which smart meters and devices that communicate with one another and energy service providers can further promote these goals. Indeed, former FERC Chairman Jon Wellinghoff has called DR the Smart Grid's "killer app." The case tested a question of near first impression about the Smart Grid: which level of government regulates it? For now, the D.C. Circuit has held squarely for the states, concluding that DR regulation is a matter of exclusive state jurisdiction. If the decision stands, it will have many adverse implications for federal regulation to advance the Smart Grid and use the wholesale electricity markets to achieve energy reductions and environmental goals. Fri, 30 May 2014 17:22:30 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4ECC1CD0-9022-584E-7189FDED6B06DC4C http://www.progressivereform.org/CPRBlog.cfm?idBlog=4ECC1CD0-9022-584E-7189FDED6B06DC4C Center for Progressive Reform Member Scholar and Professor of Law and Emory University School of Law William Buzbee will be testifying today at a House Committee on Small Business Administration Hearing entitled, "Will the EPA's 'Waters of the United States' Rule Drown Small Businesses?" According to Buzbee's testimony: The purpose and logic of the new "waters" proposed regulations, in brief: These proposed regulations and a massive accompanying science report referenced and summarized in the Federal Register notice are an attempt to reduce uncertainties created by three Supreme Court decisions bearing on what sorts of "waters" can be federally protected under the Clean Water Act. The two most important recent cases are the Supreme Court's decisions in Solid Waste Agency of Northern Cook County v. U.S. Army Corps of Engineers, 531 U.S. 159 (2001) (SWANCC) and United States v. Rapanos, 547 U.S.715 (2006) (Rapanos). Judicial and regulatory treatments of these cases and the earlier related decision in United States v. Riverside Bayview Homes, 474 U.S. 121 (1985), have resulted in an increasingly confused body of law, creating both regulatory uncertainty and occasionally bold new assertions about reduced protections for previously jurisdictional "waters of the United States." These cases, and resulting confusion, have increased regulatory transaction costs for everyone and reduced the protections afforded to America's waters. The proposed 2014 "waters" regulations are a logical and legally well justified means to bring clarity to the law and, to the extent permissible under the Supreme Court's recent decisions, restore protections long provided to America's waters during three decades of bipartisan agreement about when and why various sorts of waters should be protected. If finalized, they should greatly reduce legal uncertainty, regulatory skirmishing, and attendant litigation resulting from the uncertain intersection of these three important cases. To read the entire testimony click here. Thu, 29 May 2014 12:56:20 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=48A90009-A1DD-00CB-A1B0C17F7CD574AC http://www.progressivereform.org/CPRBlog.cfm?idBlog=48A90009-A1DD-00CB-A1B0C17F7CD574AC On May 14, 2014, the EPA proposed new rules to control "residual risk" from hazardous air emissions (such as from benzene) at the nation's petroleum refineries. The Clean Air Act requires the EPA to calculate whether or not residual risk to human health exists after the agency has put Maximum Achievable Control Technology (MACT) in place to control hazardous air emissions. Studies have long shown residual risk to the public after MACT was put in place at refineries, and this finding forms the legal basis for this rule. In particular, the EPA proposes addressing more fugitive emissions, addressing emissions controlled during changes in facility operation, and putting new requirements on storage vessels. The last EPA rulemaking on residual risk from refineries occurred during the George W. Bush administration (initiated in 2002), and that proposal was controversial in at least three respects. First, it wasn't clear that the amount of exposure being measured was accurate, since there were few actual monitors in place. Second, there was significant disagreement with the EPA's decision at that time to only reduce residual risk to one excess death in 10,000, though this was legally upheld, and third, the proposed requirements to implement the residual risk controls were all recognized as actually creating profit at refineries because they were failing to recapture valuable chemical during the refining process. Wed, 28 May 2014 17:14:56 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=44786F3E-F5A4-7E18-6D7FEA6F3F7AE5B0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=44786F3E-F5A4-7E18-6D7FEA6F3F7AE5B0 Sometime last Friday - the Friday before the Memorial Day holiday weekend - the Obama Administration quietly issued the Spring 2014 Regulatory Agenda. It's becoming something of a tradition for the Administration to release this semiannual document on classic "take out the trash" news days in this fashion. The Fall 2013 Regulatory Agenda was similarly released to whatever the opposite of fanfare is on the day before Thanksgiving, while the Spring 2013 Agenda came out the day before Independence Day. It's hard to blame Obama's political folks for resorting to these kinds of tricks to bury the news about the release of the regulatory agenda, since it always elicits the same "the sky is falling" panic from corporate interests and their allies in Congress and conservative think tanks. They issue their press releases and reports - indignant outrage on full display - about how the regulatory agenda supplies the latest evidence of the Obama Administration's so-called "regulatory tsunami" or "flood" or "avalanche" or whatever overblown meteorological metaphor happens to strike their fancy on that particular day. Tue, 27 May 2014 14:38:37 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3EC2B2F0-DB25-14F5-71AFE3101B2CC8F4 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3EC2B2F0-DB25-14F5-71AFE3101B2CC8F4 The federal regulatory system is in crisis. For the past several decades, a damaging set of mandates has continued to pile up on the books - mandates that threaten to stifle critical progress and undermine the nation's ability to compete in the world economy. Even today, out-of-touch policymakers are attempting to add still more of these mandates, without regard to their direct, indirect, and cumulative costs to society. One might say that we are facing a tsunami, a flood, or even an avalanche of these mandates. You've heard that sort of rhetoric before, I'm certain, deployed by opponents of various safeguards protecting consumers, workers, the environment, and more. But my diagnosis of the problem refers not to regulatory safeguards that agencies are, after all, obligated to issue as part of their statutory missions, but to the growing number of duplicative and utterly wasteful "lookback" or "retrospective review" requirements that opponents of regulation have sought to erect in their ceaseless bid to block effective implementation and enforcement of landmark protective statutes. Thu, 22 May 2014 12:17:12 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2480725C-9CC8-717D-E8DE6C4C4A5FF6EB http://www.progressivereform.org/CPRBlog.cfm?idBlog=2480725C-9CC8-717D-E8DE6C4C4A5FF6EB Within the past month, two federal district courts - one in Colorado and one in Minnesota - have issued important decisions on the constitutionality of state clean energy policies. Both cases raised the same legal issue, namely, whether the state laws in question regulate extraterritorially in violation of the dormant Commerce Clause of the U.S. Constitution. But the courts reached different results in each case and, more importantly, the Minnesota and Colorado policies reviewed by each court were quite different from each other even though both involved efforts to promote clean energy within the state. Some of the recent commentary on the two cases has downplayed the significant differences between the two state policies in question, leading to confusion about the implications of the courts' rulings. Thu, 22 May 2014 11:53:40 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=246C29A1-A21D-17B9-A1E5A15F428D1EFE http://www.progressivereform.org/CPRBlog.cfm?idBlog=246C29A1-A21D-17B9-A1E5A15F428D1EFE Yesterday, CPR Member Scholars sent a letter to House Representatives about their concerns with Section 212 of H.R. 4413, the Consumer Protection and End-User Relief Act. This provision would add a new Section 24 to the Commodity Exchange Act, establishing specific requirements for judicial review of rules adopted by the Commodity Futures Trading Commission (CFTC). H.R. 4413 is on the short list for a floor vote in House. As the letter explains, several aspects of Section 212 "raise significant problems." One provision would authorize courts reviewing CFTC rules to modify and enforce as modified those rules. This is a huge departure from how judicial review of rules normally takes place, including judicial review carried out under the Administrative Procedure Act, which essentially authorizes a court to only affirm or set aside a rule in whole or in part. In other words, the Courts interpret laws, they do not write them. Of this provision, the Scholars write, "Our system of government simply does not contemplate granting a court the regulatory power both to reject an agency's rule and then force adoption of a different rule preferred by the court itself." Another provision of Section 212 would allow any parties involved in a judicial challenge to a CFTC rulemaking to apply to the court "for leave to adduce additional evidence," provided that the party can show "that the additional evidence is material and that there was reasonable ground for failure to adduce it before the Commission." This change would be unprecedented and generally applies, if ever, to court challenges to agency orders. This change would open the door to special interests inserting themselves even further along in the regulatory process, slowing down implementation of needed rules even further. Given that those interested parties would be free to submit to CFTC any and all evidence they wish on a particular CFTC rule, there should be no "reasonable ground" for those parties to fail to submit such information during the rule-making process, rather than later during litigation. Tue, 20 May 2014 14:56:16 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1AC69CF1-062F-5815-007493B6EA2EFCB7 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1AC69CF1-062F-5815-007493B6EA2EFCB7 The EPA issued its long-awaited cooling water rule yesterday and the score appears to be: Industry - home run; Fish - zero. Which is to say, it's bad news not just for the fish but also for all of us who depend on the health of our aquatic ecosystems - which is to say, everyone. This is the rule that governs the design standards for the massive cooling water intakes at power plants and other large industrial facilities that withdraw billions of gallons of water a day from our rivers, lakes and estuaries. In the process, they kill billions of fish and other aquatic organisms. Congress was aware of this problem when it passed the Clean Water Act in 1972 and so included language directing the EPA to require those structures to "reflect the best technology available [BTA] for minimizing adverse environmental impact." Tue, 20 May 2014 11:49:59 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1A16104B-CF6E-F786-9AABB6D119081CCD http://www.progressivereform.org/CPRBlog.cfm?idBlog=1A16104B-CF6E-F786-9AABB6D119081CCD Today, the Seattle Times published an op-ed by CPR scholar and University of Seattle law professor Catherine O'Neill with University of Washington professor and public health officer Frank James entitled, "Protect water and health by updating state's fish-consumption rate." According to the piece: GOV. Jay Inslee is currently considering how much fish Washingtonians may safely consume - a question that will, in turn, determine how protective our state's water-quality standards should be. As professionals who have worked for two decades with people impacted by contamination in our fish, we see this as a serious question. Washington's current water-quality standards permit people to safely eat just one fish meal a month. Those of us who eat more fish than this do so at our own peril. Eating fish is the primary way that humans are exposed to polychlorinated biphenyls (better known as PCBs), mercury and many other toxic pollutants. These chemicals cause cancer, permanent neurological damage and other harms. Although Washington's Department of Ecology is poised to update its current standards, it remains to be seen whether the new standards will be more protective by requiring the water to be clean enough for people to eat fish more than once each month. Professor O'Neill has recently blogged on Washington State's Department of Ecology's potential move to weaken water quality standards in the region, thereby affecting the ability of tribal communities to have access to their native diets. She noted: And play is precisely what industrial polluters and their consultants do, as they take aim at each variable, with the ultimate goal of weakening the resulting water quality standards. I have discussed some of these efforts in the Pacific Northwest here and here, as well as here. The latest tactic - advanced by an industry consultant - and currently embraced by Washington's Department of Ecology as its "preferred approach" - is to alter the standard assumption for adult bodyweight, increasing it from 70 kg to 80 kg. This change to Ecology's (and EPA's) longstanding practice was suggested on the theory that tribal people, on average, currently have a higher bodyweight, i.e., 79 kg or 81 kg, according to two recent surveys in the Pacific Northwest. The "average American," too, it was suggested, is currently heavier than in prior years. The difference in the resulting water quality standards as a consequence of this change? The standards would be roughly 10% - 15% less protective. Which means that the fish will be that much less safe to eat - or, to put a finer point on it: tribal people seeking to put a healthy, uncontaminated meal of fish on their table will be able to do so less often. Mon, 19 May 2014 19:33:32 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=169D4094-BCA0-10F3-540C86C0AC6C9896 http://www.progressivereform.org/CPRBlog.cfm?idBlog=169D4094-BCA0-10F3-540C86C0AC6C9896 Center for Progressive Reform Scholar Sidney Shapiro and Asbestos Disease Awareness Association President Linda Reinstein published a piece in Mint Press News on toxic chemical reform legislation. They note: Imagine a chemical that every public health organization in the United States and around the world knows to cause cancer and a host of other illnesses. You might think that such a chemical would probably be banned from commercial use in the United States, or at least not allowed to be used in a host of commercial products that people use every day. But think again. According to the U.S. surgeon general, the World Health Organization and the U.S. Environmental Protection Agency, exposure to asbestos is unsafe at any level, but the substance still used in the U.S. in automobile brake pads, vinyl floor tiles and many other commercial goods. Despite its dangers, the EPA is powerless in regulating it, and 30 people across the country die needlessly from asbestos-related diseases every single day. Because the federal law governing toxic chemicals, the Toxic Substances Control Act of 1976, is woefully inadequate, the EPA's attempt to ban asbestos was overturned in court. In fact, of the 80,000 chemicals in commercial use, only five have been banned, even though many - like asbestos - can be very dangerous. The problem is that the Toxic Substances Control Act requires the EPA to prove that a chemical is dangerous before regulating it, rather than requiring manufacturers to establish the safety of potentially lethal products before they are marketed. Since the EPA is usually forced to rely on manufacturers for safety data about chemicals, if the manufacturer doesn't produce data demonstrating a chemical's danger, the EPA has no information upon which to act. To read the entire piece click here. Fri, 16 May 2014 14:03:47 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=05FB6184-C08B-B114-EA17EFFF9458C40A http://www.progressivereform.org/CPRBlog.cfm?idBlog=05FB6184-C08B-B114-EA17EFFF9458C40A Air pollution is a complex problem. For one, it does not adhere to state boundaries; a smokestack in one state can contribute to pollution problems in another, even a downwind state hundreds of miles away. What's more, air pollution's impacts are not confined to just the air. What goes up must come down, and air pollutants are eventually deposited on the ground where they are washed into rivers, lakes, and streams. The Environmental Protection Agency (EPA) has tried for decades to address the thorny problem of interstate air pollution. Last week, the U.S. Supreme Court revived the EPA's Cross-State Air Pollution Rule, the agency's most recent and comprehensive attempt to tackle the issue. The decision in EPA v. EME Homer City Generation, L.P. will mean that large sources of nitrogen oxide and sulfur dioxide emissions in certain states will be subject to more stringent air pollution requirements moving forward. Thu, 08 May 2014 14:29:43 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DCE1C637-9D11-86C7-B03B7A24BBAA027C http://www.progressivereform.org/CPRBlog.cfm?idBlog=DCE1C637-9D11-86C7-B03B7A24BBAA027C The National Academies' National Research Council released its long-awaited report on IRIS this week, and the results are good for EPA. The report praises the IRIS program and its leadership, including Drs. Olden and Cogliano, for making great strides to improve how IRIS assessments are developed. To get a real appreciation for how positive this report is, it's important to put it in context. In 2011, a different NAS/NRC committee led by the same chairperson went out of its way to criticize the IRIS program for creating what the committee viewed as overly ponderous, sometimes confusing documents. That committee, which was organized to peer review a draft assessment of formaldehyde, went beyond its charge to complain about an IRIS assessment development process that it cast as not being fit for its weighty purpose (developing the scientific evidence upon which agencies regulate drinking water, Superfund cleanup, and other public health concerns). The 2011 report led to much Sturm und Drang about the future of the IRIS program, controversy that was further stirred by Members of Congress beholden to the chemical industry. In negotiations over the agency's multi-billion dollar budget, the relatively puny IRIS program was singled out for special attention and EPA relented to sponsor the NAS committee that produced this week's report. Thu, 08 May 2014 14:21:51 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DCD629F8-AC7E-A6CD-0A366D401319BEB9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DCD629F8-AC7E-A6CD-0A366D401319BEB9 Frank Ackerman is the coauthor, with Joseph Daniel, of (Mis)understanding Climate Policy: The role of economic modeling, prepared for Friends of the Earth (England, Wales & Northern Ireland) and WWF-UK. Under the Climate Change Act 2008, the UK government sets "legally binding" carbon budgets, which cap the country's total emissions for five-year periods. The size of the fourth carbon budget, covering 2023-2027, is topic of debate. The budget was set by Government back in 2011 but Chancellor George Obsorne secured a commitment to review it in 2014 and discussions are currently taking place in government regarding its new level. One important aspect of that debate is estimating the economic cost of reducing carbon emissions in the middle of the next decade. The approach taken by the UK government to estimate the effects of the carbon budgets on economic growth uses the HMRC CGE ("computable general equilibrium") model. (See the 2011 carbon plan, p.181). This model has proved controversial for its use in assessing tax cuts but its use in climate change policy also warrants scrutiny. Tue, 06 May 2014 12:46:39 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D236F20F-F53E-3337-8816EC37810385C8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D236F20F-F53E-3337-8816EC37810385C8 On April 21, the U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers published a proposed rulemaking to clarify the jurisdictional reach of the protections afforded by the Clean Water Act of 1972. The Clean Water Act is the foundation of our nation's effort to restore and maintain the biological, chemical, and physical integrity of our water resources. While the jurisdictional reach of the Act was well defined and well understood for nearly forty years, two Supreme Court cases in the early 2000s (SWANCC v. U.S. Army Corps of Engineers and Rapanos v. United States) created confusion and added complexity to the determination of which streams and which wetlands were subject to Clean Water Act protection. The proposed rulemaking responds to the need, articulated by the regulated community and others, to provide clarity amidst the uncertainty generated by the cases. It also provides clear protection to our nation's waters and wetlands, including many headwaters, adjacent wetlands, and seasonal streams the protection of which was thrown into some degree of confusion by the cases. The proposal is consistent with the Supreme Court's reading of jurisdiction under the Clean Water Act. It is based on sound science and is carefully crafted to further the intent of Congress in enacting the Clean Water Act as interpreted by the Supreme Court. In fact, it does not expand upon the scope of the waters that have historically been protected under the Clean Water Act. The agencies propose to define waters of the United States to mean: all waters that were, are, or may be susceptible to use in interstate or foreign commerce, including all waters subject to the ebb and flow of the tide; all interstate waters, including interstate wetlands; the territorial seas; and impoundments of waters otherwise defined as waters of the United States. It also includes all tributaries to traditional navigable waters, interstate waters, the territorial seas, or impoundments of waters otherwise defined as waters of the United States, and all waters, including wetlands, which are adjacent to traditionally navigable waters, interstate waters, the territorial seas, and tributaries and impoundments as defined above. Finally, it includes, on a case-by-case basis, other waters, including wetlands, which have a significant nexus to traditional navigable waters, interstate waters, or the territorial seas. A number of waters are specifically excluded from the definition. No changes, for example, are proposed for prior converted cropland or for waste treatment systems that are designed to meet the requirements of the Act¾neither of which have ever been included in the definition. In addition, the agencies are proposing to exclude by regulation many waters and features over which the agencies as a matter of policy have not asserted jurisdiction. These waters and features include: artificially irrigated areas that would revert to upland if irrigation ceased; water-filled depressions created incidental to construction activity; gullies and rills and non-wetland swales; groundwater; and ditches that do not contribute flow to a traditional navigable water, interstate water, the territorial seas, or impoundment. Furthermore, the proposal does not affect the provisions in the Clean Water Act that exclude agricultural stormwater discharges and return flows from irrigated agriculture from regulation as point sources of water pollution. Despite the fact that the proposal is consistent with the nation's historic approach to the control of water pollution, a number of special interests have denounced it, spreading misinformation and contending that the proposal is unprecedented in terms of its scope. In an effort to dispel some of these misconceptions, listed below are a number of myths and corresponding facts concerning the proposal to refine and clarify the definition of waters of the United States. Thu, 01 May 2014 18:08:41 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B992BD05-0EA1-1C89-A6FF9D9EE9E6628B http://www.progressivereform.org/CPRBlog.cfm?idBlog=B992BD05-0EA1-1C89-A6FF9D9EE9E6628B The Supreme Court today upheld, by a 6-2 vote, the EPA's cross-state air pollution rule. Below are reactions from Center for Progressive Reform scholars Thomas O. McGarity and Victor Flatt. According to McGarity: After two decade's worth of litigation, the Supreme Court has finally held that EPA may require polluters in one state to protect air quality in downwind states through a sensible combination of emissions thresholds, cost-effective pollution reduction technologies, and emissions trading. While this is good news to residents of downwind states, they cannot yet breathe easy. Much time has passed since EPA promulgated the "cross-state" rule in 2011, and both EPA and the states must now make up for lost time in putting the rule's protective provisions into place. To achieve a successful implementation, EPA must resist the inevitable demands for exceptions, exemptions, and time extensions from upwind states that have thus far successfully forestalled the Clean Air Act's "good neighbor" policy. According to Flatt: The majority got it exactly right in reversing the DC Circuit Court and upholding the EPA's painstakingly crafted cross state air pollution rule. The majority was correct that the formula promulgated by the EPA was well within its statutory grant of authority and that the DC Circuit Court's opinion would have put an impossible burden on the EPA. The majority was also correct in striking down the Circuit Court's requirement that the EPA give states guidance before overturning deficient state implementation plans. The Clean Air Act is clear that the EPA's promulgation of joint plans was required when EPA finds the state plans to be inadequate. Most important is the effect of this opinion. It finally brings teeth to the requirement that states not allow their own pollution to cause other state air pollution violations. This will do more for clean air compliance than EPA's requirement to tighten NAAQS standards. Standards mean nothing unless they can be enforced. By controlling these criteria pollutants effectively, the program should also assist with greenhouse gas reduction. Tue, 29 Apr 2014 14:11:07 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AE764785-A487-7E32-9D23EB066C7534F8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AE764785-A487-7E32-9D23EB066C7534F8 In a very thoughtful CPRBlog piece, dated April 14, 2014, Rena Steinzor presents a powerful critique of the enforcement aspects of EPA's 2014-2018 Strategic Plan. As Professor Steinzor rightly points out, EPA's projected cutbacks in source inspections, civil judicial enforcement, administrative enforcement actions, and other enforcement work will likely encourage air and water pollution by small and medium-sized polluters that will have harmful effects on human health and the environment. At the same time, however, when one compares the final Strategic Plan's enforcement components with the enforcement sections of the draft Strategic Plan that the Agency released for public comment last November, it becomes evident that the final Plan contains a modest silver lining in an ominous dark cloud. The Agency's initial draft Strategic Plan sought public comment on some proposals for changing the system by which EPA measures the success or failure of the enforcement work of individual states, as well as of EPA itself. Under those proposals - which were meant to evaluate the effectiveness of the Agency's incipient "Next Generation Compliance" program - EPA would measure and assess the number of facilities that use advanced self-monitoring for contamination and that electronically report the results of their self-monitoring. This aspect of EPA's draft Strategic Plan drew sharp public criticism from two CPR scholars, Professor Victor Flatt and me, in an op-ed article in The Hill. Professor Flatt and I wrote: At present, the EPA keeps track of its and the states' enforcement actions. It measures the volume of pollutants reduced as a result of enforcement actions, and it uses other, similar methods in order to effectively monitor and measure the impact of those actions on public health and the environment. If these longstanding metrics are abandoned, ineffectual EPA enforcement will be much, much easier to camouflage. For example, the proposed changes could allow EPA to gather additional information regarding environmental violations and then fail to take any enforcement actions in response to any violations it knows about - all without the knowledge of congressional overseers or the public at large. Thu, 24 Apr 2014 09:45:56 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=93C53171-9750-63ED-49576E7CA1E607BA http://www.progressivereform.org/CPRBlog.cfm?idBlog=93C53171-9750-63ED-49576E7CA1E607BA Landowners flooded by the Missouri River in 2011 have sued the Corps of Engineers for a Fifth Amendment "taking" under the U.S. Constitution. Their attorneys hope to rake in over $250 million in claims for their clients and at least $1 million in expenses and fees for themselves. They're likely to be disappointed. Lawsuits seeking recovery of flood damages from the federal government almost always fail. First, the United States is immune from suit for negligent construction or handling of flood control structures under the sovereign immunity shield of the 1928 Flood Control Act, as plaintiffs whose lives were destroyed when levees failed during Hurricane Katrina quickly discovered. My co-author Christine Klein and I have called for a repeal of this provision in our article and book on Unnatural Disasters, but it hasn't happened. Mon, 21 Apr 2014 13:27:52 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=851D4A7D-9AC1-D0E6-20A05E7CC5D61D00 http://www.progressivereform.org/CPRBlog.cfm?idBlog=851D4A7D-9AC1-D0E6-20A05E7CC5D61D00 It's basic common decency: If you know people are about to stumble into a dangerous situation without realizing the risk, you should try to warn them before harm occurs. For example, you might warn someone that a frying pan is hot before they pick it up or that a handrail is broken before they try to descend a staircase. For too many companies, though, concerns about profit margins and quarterly earnings reports leave little room for common decency. These days, when a company becomes aware that the activities it undertakes or the products or services it offers put its workers or consumers in harm's away, it often decides that its economic best interests are best served by keeping the public in the dark. By turning a blind eye, companies hope to avoid footing the costs necessary for eliminating the harms they are creating. This strategy also aims to limit their exposure to civil and even criminal liability, administrative fines, and other penalties. Wed, 16 Apr 2014 12:46:12 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6B36C5A7-A374-2AAD-73B9A95558F1D132 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6B36C5A7-A374-2AAD-73B9A95558F1D132 It's hard to find someone who is not appalled at the news that General Motors knew the ignition switches on some 2.6 million of its automobiles were defective and yet did nothing to fix the problem, instead recommending that its customers stop using keychains. It also lied repeatedly to its regulator, the National Highway Traffic Safety Administration (NHTSA), the media, and its customers. The company's deliberate lies saved about 90 cents per car, but the defect, apparent for many years, cost lives. So far, GM admits to 13 deaths caused by the sudden failure of the ignition switches, shutting down the cars' electrical systems, and with it, power brakes, power steering, and airbags. But judging from the number of people who have filed lawsuits, the death toll could climb much higher, not to mention the non-fatal accidents caused by the problem, conveniently ignored by GM. The outrage here is quite appropriate. After all, in order to save a little more than $2.3 million (90 cents times 2.6 million cars, that is), a company that reported a profit of $3.8 billion last year risked the lives of millions of customers - and then lost its stingy bet. Tue, 15 Apr 2014 15:21:53 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=669EFB60-FEB4-5A9B-BDD2BA2B217DAD6F http://www.progressivereform.org/CPRBlog.cfm?idBlog=669EFB60-FEB4-5A9B-BDD2BA2B217DAD6F Since the year began, the Environmental Protection Agency has resolved enforcement actions against 12 different companies in the Chesapeake region for failure to comply with environmental laws. In one case, EPA found that the U.S. Army had failed to inspect more than a dozen underground tanks at one of its Virginia military bases containing hundreds of thousands of gallons of jet fuel, diesel fuel, and gasoline. A D.C. hospital was not properly checking for carbon monoxide leaks. A solvent processing facility in Cockeysville, Maryland, was storing industrial waste in a room with a leaky floor. The Army paid $41,000; the hospital forked over $15,000; the solvent processing facility was out $80,650. Collectively, the 12 settlements amounted to nearly $325,000 in penalties. Compared with the $5.15 billion the Texas oil company Anadarko Petroleum Corp. agreed to pay this month for a massive cleanup involving nuclear fuel, rocket fuel waste and other toxins, these penalties look like mere peanuts. Yet to the neighbors of the Army base who count on clean groundwater, the patients who went to the D.C. hospital to get better, not poisoned, and the Cockeysville residents who live near the industrial plant, these violations could have serious, even fatal, consequences if left unchecked. Mon, 14 Apr 2014 09:34:47 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=603ADAFB-B7C7-ABBD-06B46C85603D419D http://www.progressivereform.org/CPRBlog.cfm?idBlog=603ADAFB-B7C7-ABBD-06B46C85603D419D This week the Office of Information and Regulatory Affairs (OIRA) - the obscure White House Office charged with reviewing and approving agencies' regulations - took an important and much-appreciated step in the direction of greater transparency by updating and improving its electronic database of lobbying meetings records that the agency holds with outside groups concerning the rules undergoing review. As detailed in a 2011 CPR report, corporate interests have long used OIRA as a court of last resort for seeking relief from regulatory requirements they find inconvenient; these lobbying meetings provide them with a powerful and secretive forum in which to push for substantive changes to critical agency safeguards that would ensure the public continues to bear the cost of their polluting activities. With the improved database, the public, policymakers, and the media will be better able to track the efforts of corporate interests to exploit the OIRA review process to weaken or block regulatory protections. Before the upgrade, OIRA docketed all its meetings in a barebones and often careless fashion on a separate section of its website. As the 2011 CPR report explained, the meetings dockets suffered several serious flaws. The meetings were not linked to the rule undergoing review that was the subject of the meeting, nor was there any standardized format for documenting what rule was the subject of the meeting. Often, interested members of the public would have to consult a number of different sources to verify what rule was at issue in a given meeting. To make matters worse, key meetings log data - including the attendees of the meeting and their affiliations - were often rife with typos and inaccurate or incomplete information. These log data were also supposed to provide links to all documents presented at the meeting, but in some cases the links do not work. Even when accurate, the meetings data were of limited utility because they were not presented in a searchable database. If, for example, a member of the public wanted to see how many meetings took place with regard to a particular rule, he or she would have to assemble these data manually. CPR sought to overcome this problem by creating its own searchable meeting database, which available here. Wed, 09 Apr 2014 14:13:06 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=477A561F-E9CC-798B-AC2295293C2088A5 http://www.progressivereform.org/CPRBlog.cfm?idBlog=477A561F-E9CC-798B-AC2295293C2088A5 Yesterday, The Hill published an opinion piece by CPR scholars Christine Klein and Sandra Zellmer. According to the piece: President Obama recently signed a controversial bill that will directly affect the safety of millions of Americans. The fine print is so complicated, though, that it's hard to predict exactly how our safety will be affected. Some say that the Homeowner Flood Insurance Affordability Act of 2014 brings desperately needed relief to property owners who face ruinous increases in their premiums for federal flood insurance. To supporters like Senator Schumer (D-N.Y.), the law preserves the American dream of homeownership from ill-conceived intervention by "an irrational Washington force." Others see the new law as election-year pandering and a cowardly reversal of course. Just two years ago, Congress passed the Biggert-Waters Flood Insurance Reform Act of 2012 in direct response to catastrophic damage from Superstorm Sandy. The 2012 law prescribed strong medicine to salvage the solvency of the flood insurance program from a shortfall of some $25 billion caused by insurance payouts after Sandy and Hurricane Katrina. Before its rollback on Friday, the 2012 law would have quickly phased out federal subsidies until owners of flood-prone properties paid the true actuarial costs of their insurance. To read the piece, "Natural Floods, Unnatural Disasters," click here. Klein and Zellmer are the authors of the recently released, "Misssippi River Tragedies, A Century of Unnatural Disaster." Wed, 09 Apr 2014 13:57:01 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=476AB8C8-0392-AE14-A39F3223176A673F http://www.progressivereform.org/CPRBlog.cfm?idBlog=476AB8C8-0392-AE14-A39F3223176A673F Today, CPR Senior Policy Analyst Matthew Shudtz will be testifying at OSHA's hearing on the proposed silica rule. According to Shudtz: The testimony raises some concerns about how OSHA arrived at its proposal to provide limited medical surveillance for silica-exposed workers. It also covers issues related to enforcement and small business impacts. But most importantly, the testimony reiterates the need to get this rule finalized quickly. As we have noted many times in this space, millions of workers are exposed to silica dust at levels that cause high rates of silicosis, lung cancer, renal disease, COPD, and other health problems. The faster this rule is put in place and enforced, the faster these workers will be able to breath safer air. To read the testimony in full click here. Thu, 03 Apr 2014 10:26:47 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=27AB7B31-D4A1-15F0-8FBBF60E97131545 http://www.progressivereform.org/CPRBlog.cfm?idBlog=27AB7B31-D4A1-15F0-8FBBF60E97131545 Yesterday, 13 Member Scholars of the Center for Progressive Reform (CPR) sent a letter to the U.S. Senate expressing their concern about S.J. Res. 30, a Congressional Review Act (CRA) "resolution of disapproval" introduced by Senate Minority Leader Mitch McConnell (R-KY) that seeks to block the Environmental Protection Agency's (EPA) proposed Clean Air Act New Source Performance Standard (NSPS) to limit greenhouse gas emissions from future fossil-fueled power plants. Drawing on their many years experience in administrative law, the Member Scholars make the case that McConnell's proposal is at odds with the CRA, because it seeks disapproval not of a final regulation, but of a regulation that has merely been proposed. "By attempting to subject a proposed rule - as opposed to a final rule - to this process," they write, "S.J. Res. 30 is contrary to the statutory language and could raise questions as to the legitimacy of any resolution of disapproval." Some history is in order. Senator McConnell introduced S.J. Res. 30 in January, and in a slap in the face to, well, everyone, he fired off a letter to the Government Accountability Office (GAO) raising the very issue that the CPR Member Scholars are now flagging: He asks them to "review" Congress's ability to use the CRA to force an up-or-down vote to stop the EPA's proposed NSPS. As explained below, what McConnell hopes to use the CRA for is to prevent any kind of rule that resembles the proposal to go forward. The GAO has not yet responded to Senator McConnell's inquiry, but he seems determined to move ahead with the resolution anyway. Incidentally, the GAO FAQs page on the CRA seems to suggest that the GAO presumes that the CRA does not apply to proposed rules. One question asks: "Should agencies submit proposed rules to GAO? [i.e., to initiate the CRA process]." The answer provided states: "No. Agencies should only submit major, nonmajor, and interim final rules to GAO." Wed, 02 Apr 2014 13:12:18 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=232FDBB5-030E-C03E-CA0ADEFA102AE630 http://www.progressivereform.org/CPRBlog.cfm?idBlog=232FDBB5-030E-C03E-CA0ADEFA102AE630 Maryland faces an important deadline in its long-running effort to clean up the Chesapeake Bay. By 2017, the state is required to implement specific measures to reduce the massive quantities of nutrient pollution that now flow into the Bay from agriculture, sewage treatment plants, power plants, factories, golf courses, and lawns. Gov. Martin O'Malley and the other Bay State governors know we're going to have to make some demands on polluters to get the job done. But if the new Bay Watershed Agreement is any indication, the politicians lack the stomach for it. For years, the Bay states have collaborated their way to nowhere, inking joint agreements that resulted in very little actual progress. Then the Obama EPA stepped up to the plate, issuing a Total Maximum Daily Load (TMDL), or pollution diet for the Bay. Under its terms, by 2017, the six Bay states (Maryland, Virginia, Pennsylvania, Delaware, West Virginia and New York) and the District of Columbia must have in place 60 percent of all the measures needed to reduce nitrogen, phosphorous, and sediment deposition in the Bay and its tidal rivers. By 2025, 100 percent of those measures are due. Tue, 01 Apr 2014 12:49:41 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1DFA84E6-9249-CC0E-FE76D776BC066CFF http://www.progressivereform.org/CPRBlog.cfm?idBlog=1DFA84E6-9249-CC0E-FE76D776BC066CFF I've been in Bangalore, India for about two months on a Fulbright fellowship to study Indian environmental law. While I knew India has major problems with air pollution and sanitation, I didn't expect that one of the major environmental controversies here would be about greening the idol industry. Apparently, the gods in India can wreak havoc on the environment. Each year, Indians sink millions of idols in rivers and lakes to celebrate various festivals. The biggest festival for idol sinking is Ganesh Chaturthi, held each August or September in honor of the elephant god Ganesh. Hindus sink Ganesh idols for a variety of reasons, including purifying the home, casting away misfortune, and returning the God to the earth. The problem is that most of the idols are made of plaster of Paris and are decorated with brightly colored paints that contain dyes and heavy metals such as mercury and lead. The plaster of Paris gradually dissolves into the water bodies, making the water cloudy and alkaline and depleting oxygen for aquatic life. The paints and dyes make the water toxic. Wed, 26 Mar 2014 11:26:03 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FEC8772C-B500-0B1C-67516D8C88B966D9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FEC8772C-B500-0B1C-67516D8C88B966D9 Rhode Island has recently learned that its renewable energy standards could be ruinously expensive. But they're in good company: more than a dozen states have "learned" the same thing, from reports from the same economists at the Beacon Hill Institute (BHI). Housed at Boston's Suffolk University, BHI turns out study after study for right-wing, anti-government groups. Funding for BHI's relentless efforts has come from Charles and David Koch (leading tea party funders) and others on the same wavelength. For the Rhode Island study, BHI teamed up with the Rhode Island Center for Freedom & Prosperity, a member of the Koch's State Policy Network. While BHI's name and location place it close to the Massachusetts state government, it is philosophically a different beacon on a different hill. Last year BHI requested a grant from the Searle Freedom Trust, aimed at undermining the Regional Greenhouse Gas Initiative (RGGI), a multi-state effort that Massachusetts participates in. The grant application said, "Success will take the form of media recognition ... and legislative activity that will pare back or repeal RGGI." Suffolk vice-president Greg Gatlin said that BHI had not gone through the university's required grant approval process, and "the University would not have authorized this grant proposal as written." As it turned out, the proposal was not funded. Wed, 26 Mar 2014 11:15:53 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FEBE95BF-0AE4-8DB1-C1F0A778FDB8BFA3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FEBE95BF-0AE4-8DB1-C1F0A778FDB8BFA3 For years, Duke Energy has enjoyed virtual free rein to contaminate North Carolina's surface and ground waters with arsenic, lead, selenium, and all of the other toxic ingredients in its coal ash waste in clear violation of the Clean Water Act and other federal environmental laws. And it seems that both North Carolina's regulators and state legislators are determined to keep it that way. Last year, the state's environmental agency actively thwarted citizens' efforts to sue Duke for violating the Clean Water Act by intervening in the lawsuit at the last minute and then settling with the company for just over $99,000 - chump change for a company worth more than $50 billion - and no obligations to clean up their coal ash waste sites or prevent future pollution. As detailed previously on CPRBlog, the head of the state's environmental department - appointed by Gov. Pat McCrory, a former executive at Duke who had worked for the company for nearly three decades - promised that he would work as a "partner" to regulated industries in the state. Federal prosecutors are now looking into whether North Carolina's environmental regulators engaged in any criminal activity in their efforts to shield Duke. Wed, 19 Mar 2014 15:15:11 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DB8D3D08-9AE0-90B8-151986D77721D8C7 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DB8D3D08-9AE0-90B8-151986D77721D8C7 Basic disclosures of conflicts of interest have been required by the top science journals for decades. Yet most regulatory agencies - despite strong urging from a variety of bipartisan sources - have failed to require these disclosures for private research submitted to inform regulatory decisions. This omission is particularly alarming since, unlike journals, agencies used this research to determine the appropriate standards for protection of public health and welfare. If anything, one would expect the agencies to apply higher scientific standards and insist on greater transparency for privately submitted research as compared to journal editors. The failure of agencies to meet these bare minimum standards of science has not gone unnoticed. Recently, the Administrative Conference of the U.S. recommended that agencies should, where possible, require these basic disclosures of conflicts, including "whether the experimenter or author had the legal right without approval of the sponsor of the research to: design the research; collect the data; interpret the data; and author, publish or otherwise disseminate the resulting report or full dataset." See Recommendation #11. Both the Bipartisan Policy Center (p.42) and the Keystone Center (p.20,24) preceded the ACUS recommendation with similar calls for basic conflict disclosures for private research that informs regulation. An editor of Nature recently called for such disclosures, noting: It was the 1976 film All the President's Men, about the uncovering of the Watergate political scandal by two Washington Post reporters, that popularized the phrase: "Follow the money." He who pays the piper calls the tune. Science combats the undue influence of commercial interests - or at least tries to - by using a different guideline, illustrated by a popular catchphrase from another film: "Show me the money." Give us transparency. Even members of Congress recognize the need for basic conflict disclosures in environmental in reform legislation (see s. 4(b)) that is otherwise considered by environmentalists to be far too lax. At last, one federal agency has begun to show leadership on this issue. Last November, in a proposed rule that would set standards for silica exposure, OSHA requested that commenters voluntarily disclose funding sources in the course of submitting their comments. While this is simply a voluntary request by OSHA (and compliance with this request may prove disappointing), it is still a step in the right direction. Hopefully other agencies and Congress will follow suit and make the disclosure requirements mandatory for new research submissions that inform public and environmental regulation, holding this regulatory science to at least the minimum standards of the scientific community. Tue, 18 Mar 2014 11:04:55 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D5818B84-F451-7D9D-F8B94627F15BD915 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D5818B84-F451-7D9D-F8B94627F15BD915 Maryland faces an important deadline in its long-running effort to clean up the Chesapeake Bay. By 2017, the state will be legally required to have put in place a number of specific measures to reduce the massive quantities of pollution that now flow into the Bay from a range of pollution sources in the state. Unfortunately, if the terms of a draft Chesapeake Bay Watershed Agreement are any indication, we're going to miss the deadline. Today, CPR President Rena Steinzor and I submitted comments to the Chesapeake Executive Council, a collaborative partnership of Bay state governors currently chaired by Gov. Martin O'Malley, arguing that the Agreement falls well short. As the first interstate agreement since EPA issued the Total Maximum Daily Load (TMDL) for the Chesapeake Bay, the Agreement is an opportunity to build off the TMDL and tackle the issues that plan does not address. Instead, the draft Agreement ignores some of the most pressing issues facing the Chesapeake Bay today. Our comments urge the Bay state governors to: Hold Agriculture Equally Accountable Across State Lines. Agricultural operations are responsible for nearly half of the nutrients now choking the Chesapeake. The authority for the TMDL comes from the Clean Water Act, which does not address nonpoint sources of pollution such as agriculture. To restore this vital economic and recreational engine, it's only fair that each sector takes responsibility for its share of pollution. Bay state governors should use the Agreement to hold each of the various polluting sectors to roughly the same standards across state lines. Invite EPA Oversight. The Bay's recent progress is largely the result of the federally led TMDL, and the Agreement should acknowledge EPA's critical role in restoring the Bay. Address Toxics and Climate Change. The Agreement was the states' chance to address some of the issues unaddressed by the TMDL, most notably toxic chemicals in the Bay and the problems resulting from climate change. Despite mounting evidence of impacts to fish and other resources, the draft Agreement omits any commitment to reduce - or even research - toxic pollution in the Bay and its tributaries. It is likewise inexcusable that the draft fails to even utter the words "climate change." In the final Agreement, the authors must acknowledge reality and address the very real impacts that toxics and climate change are already having on the Bay. This tepid don't-rock-the-boat agreement harks back to yesteryear, when Bay states spent two full decades getting very little done. We urge Governor O'Malley, the head of the Chesapeake Executive Council, and other Bay state governors to revise the Agreement so the final document reflects the true value Bay restoration represents to the region. Mon, 17 Mar 2014 13:16:35 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D0D3F357-0EAE-B051-4B21977A789748B4 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D0D3F357-0EAE-B051-4B21977A789748B4 A scant five days before the Department of Interior opens a new round of bids for oil leases in the Gulf of Mexico, the EPA has blinked, pronouncing BP, the incorrigible corporate scofflaw of the new millennium, once again fit to do business with the government. To get right to the point, the federal government's decision that BP has somehow paid its debt and should once again be eligible for federal contracts is a disgrace. Not only does it let BP off the hook, it sends an unmistakable signal to the rest of the energy industry: That no matter how much harm you do, no matter how horrid your safety record, the feds will cut you some slack. Back in 2012, the agency's intrepid staff had finally gotten permission to pull the trigger on the company, de-barring it from holding any new U.S. contracts on the grounds that it was not running its business in a "responsible" way. Undoubtedly under pressure by the Cameron government and the U.S. Defense Logistics Agency, BP's most loyal customer, the EPA settled its debarment suit for a sweet little consent decree that will try to improve the company's sense of ethics by having "independent" auditors come visit once a year. To review the grim record: BP, now the third-largest energy company in the world, is the first among the roster of companies that have caused the most memorable industrial fiascos in the post-modern age. Thu, 13 Mar 2014 19:23:18 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BD8A9ECC-0F0C-072E-0CBFC86E4926550E http://www.progressivereform.org/CPRBlog.cfm?idBlog=BD8A9ECC-0F0C-072E-0CBFC86E4926550E If you're harmed by an improperly labeled prescription drug you've taken, should your ability to hold the manufacturer accountable in court depend on whether that drug was "name brand" or "generic"? Strangely, it does matter, thanks to the 2011 U.S. Supreme Court decision in Pilva v. Mensing. There, the Court held that because of a quirk in the Food and Drug Administration's (FDA) regulations, generic drug manufacturers were shielded against plaintiffs' state tort law failure-to-warn claims that alleged that a generic drug's labeling failed to provide adequate warning of particular health risks. The Court reasoned that since the FDA's regulations didn't readily allow generic drug manufacturers to update their labels quickly to warn consumers against any newly discovered risks, it would be impossible for those same generic drug manufacturers to fulfill a separate state tort law duty to provide such warnings through adequate labeling. The impossibility of complying with both legal duties simultaneously compelled the Court to find that the FDA's regulations preempted the plaintiffs' state tort law claims. In the wake of that decision, the FDA has proposed to amend its regulations to eliminate this disparity. Specifically, the proposal seeks to extend to generic drug manufacturers the ability to use the "changes being effected" supplement process (often called "CBE changes") to make changes to their product labels. It's a little complicated, but the basic gist is that CBE changes enable drug manufacturers to update product labels relatively quickly whenever they become aware of certain kinds of information regarding the potential risks of their drugs. The goal of the CBE changes process is to empower drug manufacturers to provide consumers and their doctors with relevant risk information as quickly as possible, so that they can make the best-informed decisions possible about whether and how to take a particular drug. The public comment period for the proposal ends this Thursday, and CPR Member Scholars Tom McGarity and Sid Shapiro and I have submitted comments that aim to highlight for the FDA an important, but easily overlooked benefit of this rulemaking - namely, the invaluable role that a vibrant state civil justice system can play in complementing and reinforcing the FDA's regulatory programs so that they are better able to protect the public against unreasonably dangerous drugs. Mon, 10 Mar 2014 15:38:38 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AD496E5A-9951-1D1C-F5351FB75D5840AE http://www.progressivereform.org/CPRBlog.cfm?idBlog=AD496E5A-9951-1D1C-F5351FB75D5840AE EPA's budget is in free-fall. Members of Congress brag that they have slashed it 20 percent since 2010. President Obama's proposed budget for 2015, released on Tuesday, continues the downward trend. The budget proposal would provide $7.9 billion for EPA, about $300 million, or 3.7 percent, less than the $8.2 billion enacted in fiscal year 2014. To cope with these cuts, the agency plans to fundamentally change the way it enforces environmental laws. A draft five-year plan released in November signals that the agency is retreating from traditional enforcement measures, such as inspections, in favor of self-monitoring by regulated industries. Specifically, the agency aims to conduct 30 percent fewer inspections and file 40 percent fewer civil cases over the next five years as compared to the last five. Even before releasing the draft plan, the agency had already begun cutting down on enforcement. In February, the agency reported a decrease in the number of in-person inspections and investigations in 2013 compared to the previous year. According to the EPA's own report, enforcement actions in 2013 resulted in the reduction of 1.3 billion pounds of pollution, down from a high of more than 2 billion pounds in 2012. EPA conducted 2,000 fewer inspections and evaluations and initiated about 2,400 civil cases last year, continuing a downward trend since fiscal 2009 when the agency opened about 3,700. Mon, 10 Mar 2014 12:17:20 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AC91A19E-E7C0-969A-67B7EDC0F536F307 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AC91A19E-E7C0-969A-67B7EDC0F536F307 The media has reported, erroneously, that the Obama Administration's environmental impact statement concluded that the Keystone Pipeline would have no impact on global climate disruption. The facts are a bit more complicated, and much more interesting. Basically, the final EIS concedes that Keystone would increase greenhouse gas emissions, but it uses a silent political judgment masquerading as scientific analysis to minimize its estimate of the increase's magnitude. Accordingly, President Obama has ample grounds to reject the Keystone Pipeline application. Let me explain. The EIS concedes that the construction project creating the Keystone Pipeline would produce .24 metric tons of carbon dioxide equivalents (MMTCO2E) per year until TransCanada completes the pipeline. It also admits that operation of the pipeline after construction would produce 1.44 MMTCO2E per year, about the emissions of 300,000 passenger vehicles. Although this is a lot of emissions, the really huge emissions come not from the construction and operation of the pipeline, but from the extraction and use of tar sands oil. The EIS concludes that the tar sands oil transported through the pipeline would produce a whopping 147 to 168 MMTCO2E per year in lifecycle emissions, approximating the annual emissions of more than 30 million cars. The huge emissions associated with tar sands oil has led James Hansen, a leading climate scientist, to conclude that exploiting tar sands oil means "game over" for climate change. Fri, 07 Mar 2014 08:54:04 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9CD25380-B863-881A-0F808F0247AA5B31 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9CD25380-B863-881A-0F808F0247AA5B31 The regulatory process has become more opaque and less accountable. We need to fix that. Every year, thousands of law students take a course in administrative law. It's a great course, and we wish even more students took it. But there's a risk that students may come away with a vision of the regulatory process that is increasingly disconnected with reality. Worse, the leading judicial opinions on the subject suggest that judges may suffer from a similar disconnect. The Administrative Procedure Act is based on the premise that Congress delegates the power to address a problem to an agency, which then applies the statute to formulate a regulation. Policy is driven by the statute along with the views of the agency head, who is appointed by the President and confirmed by the Senate. But the realities are often different. Policy is often driven, not so much by Congress, as by Presidential orders requiring the use of cost-benefit analysis. The final decision about whether to regulate, and even the details of the regulation, may be decided by a White House office called OIRA. The head of the agency is frequently a temporary appointee, generally a lower level agency official who may not have much clout within the executive branch. The regulatory system as it actually operates is much different from the world envisioned by administrative law. In a recent paper, Anne Joseph O'Connell and I document this disconnect and discuss its consequences. We think it likely that something like the current system will persist. Administrative law aims to make the regulatory process more open and transparent, more faithful to statutory mandates, and more attentive to scientific expertise - all while respecting the primary role of the executive branch in issuing regulations. To further these goals given current realities, OIRA process must become much more transparent and accountable. Transparency will help ensure that an agency's statutory mission and its scientific expertise don't get submerged by OIRA staff who care only about their own policy goals and lack deep expertise. Regardless of whether you share OIRA's passion for cost-benefit analysis or revile it, we should all be able to agree on the need for improving the process. This blog is cross-posted on Legal Planet. Wed, 05 Mar 2014 13:49:49 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=93945B38-B205-2D06-B92CBDED15FC9524 http://www.progressivereform.org/CPRBlog.cfm?idBlog=93945B38-B205-2D06-B92CBDED15FC9524 In recent weeks, celebrations throughout the Pacific Northwest marked the 40th anniversary of the "Boldt decision" - the landmark decision in the tribal treaty rights case, U.S. v. Washington. This decision upheld tribes' right to take fish and prohibited the state of Washington from thwarting tribal harvest. Judge Boldt's 1974 decision was intended to close a chapter in our history during which tribal fishers were harassed, beaten, and imprisoned for the act of fishing. In recognition of this anniversary, the Washington state legislature voted to clear the criminal records of all the tribal people who had been arrested for fishing - that is, for exercising the rights they had been guaranteed under the treaties. Yet the legacy of this shameful era may be revived if Washington's Department of Ecology calculates water quality standards so as to reflect and perpetuate the time when tribes could not harvest salmon and other fish. Water quality standards determine how much pollution will be allowed in our waters and, as a consequence, in the fish we all eat. Water quality standards are human health-based; they are currently set by means of risk assessment. Environmental agencies such as Ecology enlist risk assessment equations that determine how much of each toxic pollutant - PCBs, mercury, dioxins, PAHs - can safely be present in a water body so that humans who eat the fish from that water won't risk cancer or suffer irreversible neurological damage or other harms. There are several variables in this equation. The value for each of these variables is determined by intertwined "science" and "policy" choices. Agency risk assessors consider the degree to which a given pollutant bio-accumulates in fish tissue; the amount of fish people can be expected to consume; the number of years over which people will likely consume fish at this rate; and other variables. The plausible value for some of these variables spans two orders of magnitude; for other variables, the range is less dramatic, but there is still room for play. And play is precisely what industrial polluters and their consultants do, as they take aim at each variable, with the ultimate goal of weakening the resulting water quality standards. I have discussed some of these efforts in the Pacific Northwest here and here, as well as here. Tue, 04 Mar 2014 10:02:43 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8D9DD724-B323-B46A-857B382825C93F62 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8D9DD724-B323-B46A-857B382825C93F62 It sounds like a rare piece of good news about climate change: emissions of carbon dioxide, the principal cause of global warming, grew at a slower rate after 2000 in the United States, and have actually dropped since 2007. In Europe the story sounds even better, as overall emissions dropped from 1990 to 2008, often roughly matching, or in some cases exceeding, the reductions promised under the Kyoto Protocol. Yet the apparent progress on emission reductions in rich countries has occurred at a time of widespread outsourcing of manufacturing to China and other developing countries. In the process, we have effectively outsourced our carbon emissions as well. If consumers are responsible for the emissions from making the consumer goods they buy, then we have not solved the problem. We have just made it harder to see - and much harder to measure. Here's the problem: if a Chinese steel mill sells steel to Toyota in Japan, which uses it to make cars sold to Americans, which country is responsible for the steel mill's emissions? America seems like the logical answer; the Chinese emissions happened in order to make something that was bought and used in the United States. Those emissions, however, belong to China in all standard statistics, and in most discussion of climate targets and responsibilities for emission reduction. Thu, 27 Feb 2014 13:32:22 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=749D5628-BF50-FE4D-0997126E946D178D http://www.progressivereform.org/CPRBlog.cfm?idBlog=749D5628-BF50-FE4D-0997126E946D178D Today, Center for Progressive Reform analyst Michael Patoka testified at a Maryland Senate Finance Committee Hearing in support of SB 774, which would require construction companies contracting with the state to be prequalified based on their worker health and safety performance measures. The widely supported legislation would ensure unscrupulous employers do not receive contracts funded by taxpayer dollars. In his testimony Patoka notes: Currently, construction firms are screened on a number of factors prior to bidding, but worker-safety considerations are not included. As a result, agencies can easily end up financing companies that operate hazardous worksites and endanger Maryland workers. Indeed, the current system encourages firms to cut corners on worker safety, since by doing so they may be able to offer lower bids than their more responsible competitors and thus have a better chance at winning lucrative contracts. The construction industry is responsible for a disproportionately high number of fatalities and injuries. From 2008 and 2010, between 25 and 33 percent of all workplace deaths in Maryland were in the construction industry, and each of those years saw between 5,800 and 6,900 construction-related injuries. These incidents impose unbearably high costs on individuals and families in Maryland, as well as burden the local economy. Between 2008 and 2010, construction deaths and injuries cost Maryland $712.8 million in medical services, lost productivity, administrative expenses, and lost quality of life. Public agencies are among the largest purchasers of construction services in Maryland, so they are in a unique position to improve worker protections through the use of their considerable buying power. The impact of this bill would reach far beyond public contracts, since any companies hoping to remain eligible for bidding would have to maintain a good safety record in all their work. The prequalification system that this bill would establish is particularly well-designed. The bill instructs the Department of Labor, Licensing, and Regulation to develop a standardized questionnaire and rating system. The Department would consult with a broad range of stakeholders, including unions, safety experts, and contractors, to ensure that the resulting system is fair and effective. To read the testimony in full click here. Thu, 27 Feb 2014 12:57:37 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=747CEC2F-D5F6-9570-9BB572CB5753521D http://www.progressivereform.org/CPRBlog.cfm?idBlog=747CEC2F-D5F6-9570-9BB572CB5753521D Cue the majestic fanfare, for this week marks House Republicans' so-called "Stop Government Abuse Week" - you know they mean business, because they have a clever Twitter hashtag and everything. So how does one celebrate such an auspicious occasion? Apparently, by wasting precious House floor time with a series of votes on several extreme anti-regulatory bills that, if enacted, would make it all but impossible for agencies to carry out their congressionally mandated missions of safeguarding the public against corporate abuses. The jewel in this potentially catastrophic crown is the Regulatory Accountability Act, which has been repackaged as Title II of the overstuffed "Regnibus" bill, officially known as the All Economic Regulations are Transparent (ALERT) Act (H.R. 2804). Mon, 24 Feb 2014 15:55:47 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=65AE39F6-F620-254C-48D84F3579167DB2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=65AE39F6-F620-254C-48D84F3579167DB2 A Lancaster County District Court has struck down the governor's decision to approve Keystone XL's pipeline route through the state in Thompson v. Heineman, CI 12-2060 (Feb. 19, 2014). As described in a previous blog, LB 1161 was passed in 2012 to give Governor Dave Heineman the authority to approve the route rather than having the state's Public Service Commission (PSC) make the decision. The court found that the PSC--not the governor--is constitutionally empowered under Nebraska Constitution Art. IV s. 20 to play the lead role in approving the pipeline's route. The PSC was created in the late 1800's to prevent precisely this kind of overreaching by politicians who were inclined to grant political favors to powerful railroad executives who wanted to expand their routes through private property. "If such abandonment or abolition of [the PSC's] regulatory control were permitted, the protection afforded to Nebraska citizens by the constitutionally created and empowered PSC would cease to exist." Thompson, supra, at 43. The court found "no set of circumstances" under which LB 1161 could be upheld. Under the court's ruling, LB 1161 is unconstitutional and void, and the governor's action in approving the pipeline route is also null and void. Accordingly, the court permanently enjoined the state from authorizing the pipeline route pursuant to LB 1161. This means that the state is also prohibited from allowing Transcanada to exercise eminent domain to obtain easements over private property for the pipeline. Governor Heineman vowed to appeal the ruling, but there's no doubt that the decision could cause more delays in finishing the pipeline. If and when the legislature fixes the constitutional problem by giving authority back to the PSC, the PSC will have to decide whether to approve the current pipeline route. If the PSC alters the route or any other specifications, the State Department will have to prepare another supplemental Environmental Impact Statement or Environmental Assessment to analyze the impacts of any significant changes. At the very least, President Obama and Secretary John Kerry would be wise to withhold approval until the dust settles on the state's decision-making processes. Better still, President Obama could simply deny the permit as failing the "national interest" test, given the serious potential for pipeline leaks and greenhouse gas emissions, and the broader negative implications for creating a more sustainable energy portfolio for America's future. No one needs yet another "Unnatural Disaster," as Christine Klein and I explain in our new book. Thu, 20 Feb 2014 10:56:29 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4FFFA072-9AD4-8EF9-9036C9A6110CB2D5 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4FFFA072-9AD4-8EF9-9036C9A6110CB2D5 Yesterday, we wrote about OIRA's role in delaying and diluting the EPA's long-awaited coal ash rule, in part by introducing and promoting a weak option that would rely on voluntary state implementation and citizen suits, instead of nationwide requirements and federal oversight, to protect the public from dangerous leaks and spills. Anyone who thinks the states can be entrusted with regulating toxic coal ash need only take a passing glance at North Carolina's track record - a virtual "how to" guide for regulatory dysfunction. Governor Pat McCrory himself worked at Duke Energy for 28 years, and Duke-connected sources donated over a million dollars to get him elected in 2012. Once in office, he appointed several former Duke employees to high-level posts, and the newly appointed head of the state's environmental department saw himself as a "partner" to regulated industries rather than a cop on the beat. The department took no action even after Duke's own test results showed that the ponds were polluting nearby groundwater. Citizen suits fared no better. Even in the best circumstances, these lawsuits are expensive and time-consuming for organizations to bring, and unlike comprehensive regulations, they are sporadic in their coverage. But the situation in North Carolina was even worse: environmentalists filed three separate notices of intent to sue Duke in federal court over groundwater pollution, and each time the lawsuits were stymied by the state's environmental department. Federal law gives state regulators 60 days after such notices are filed to assert their own jurisdiction over the issue by bringing an enforcement action, which prevents the citizen suits from proceeding. North Carolina's environmental department brought actions against all of Duke's remaining waste sites, effectively blocking any additional coal ash suits against the company. The state negotiated a settlement with respect to two sites, under which Duke would pay just $99,111 (the company is worth $50 billion) and wouldn't even be required to move or close the dumps. The state has recently backed away from the embarrassing settlement in light of Duke's high-profile spill. But with all this attention now focused on their improper relationship, both Duke and the North Carolina government have become the subjects of a federal criminal investigation that will examine years' worth of their emails and memos. This is the kind of regulatory protection we can expect to see more of if the EPA decides to issue a weak rule under Subtitle D. Thu, 20 Feb 2014 08:09:16 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=50456B12-FA86-EF5E-3C2277A0EA8B7B5F http://www.progressivereform.org/CPRBlog.cfm?idBlog=50456B12-FA86-EF5E-3C2277A0EA8B7B5F Two and a half weeks ago, a Duke Energy ash pond in North Carolina spilled up to 39,000 tons of coal ash and 27 million gallons of contaminated water after a stormwater pipe underneath the pond broke. The spill coated the bottom of the Dan River for 70 miles with gray sludge - five feet thick in some places. Now, investigators have discovered a second pipe underneath the pond that appears to have been leaking contaminated water into the river for a long time, with levels of arsenic 14 times higher than what would be considered safe for humans. These spills were accidents waiting to happen. The dangers of toxic coal ash have been flashing loudly on the nation's radar screen ever since 1.1 billion gallons of wet ash spilled from a ruptured dam in Kingston, Tennessee at the end of 2008. At the time, the EPA promised to quickly adopt new regulations that would protect the public against catastrophic spills from unstable ash ponds, groundwater contamination from unlined waste sites, and the spewing of dry ash into the air. Fast forward five years: the spills continue (this is the third-largest coal ash spill in the nation's history), and the regulations have yet to be finalized. There are plenty of villains in this case, from Duke Energy, which has refused to close its poorly maintained and leaking ash ponds, to North Carolina's environmental department, which turned a blind eye to the warning signs. But there's another player with ash on its hands: the White House Office of Information and Regulatory Affairs (OIRA). Not only has OIRA been a major participant in the stalling of federal coal ash regulations that may have prevented this spill had they been in place already, but OIRA has also made it much more likely that the final rule, when it comes out, will be too weak to prevent disasters like this from happening on a regular basis. Wed, 19 Feb 2014 18:27:35 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4C7944ED-BD33-67F0-ADBE0F3FA6D1E91B http://www.progressivereform.org/CPRBlog.cfm?idBlog=4C7944ED-BD33-67F0-ADBE0F3FA6D1E91B In his State of the Union Address President Obama announced that, while he intended to work with Congress to achieve various goals, he will act unilaterally, invoking his "executive authority," pending congressional action. There followed a laundry list of initiatives that he said he would take on his own. Predictably, Republicans have railed against the President's proposed actions, accusing him of subverting the rule of law. It's all just politics. First guilty party: President Obama. For all his touted exercise of executive authority, there is nothing revolutionary there. Most of the initiatives are simply the use of the bully pulpit to call upon various groups and constituencies to do the right thing. For example, the White House hosting a Summit on Working Families, asking the Vice President to lead a "full review" (as opposed to a partial review, I guess) of America's job training programs, asking every business leader to help the long-term unemployed find jobs, and mobilizing leaders from business, labor, community colleges and other training providers to boost the number of apprenticeships in this country. Not that those are not good things, but they are hardly strong medicine. The rest of the initiatives involve the exercise of existing, well-established statutory authorities, not the use of some free-floating constitutional "executive authority." For example, the first out of the box was the President's order requiring new contracts with the federal government to establish a $10.10 minimum wage for contractor employees. However, at least since 1979, when the D.C. Circuit upheld President Carter's maximum wage and price controls for government contractors, it has been well established that the Federal Property and Administrative Services Act authorizes the government to dictate the wages of contractor employees. Another announced initiative is the launching of four new manufacturing innovation institutes, but this is just the direction of the use of appropriated funds consistent with the statutory restrictions on their use. Likewise, the so-called "myRA," or the poor man's IRA, is justified in reality by Treasury Department authorities regarding the sale of government bonds, and it is entirely voluntary for employers. In other words, the President is guilty of hype - portraying himself as the sole person with the power to do these things. It would not be nearly so dramatic if he said that he was utilizing already existing statutory authorities. Mon, 17 Feb 2014 18:37:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=42342C98-C4E4-F62E-B75B752F9A06E179 http://www.progressivereform.org/CPRBlog.cfm?idBlog=42342C98-C4E4-F62E-B75B752F9A06E179 At long last, the comment period on OSHA's silica proposal has closed and the next phase in this rule's protracted timeline will commence. In the four months since OSHA released the proposal, the agency has received hundreds of comments. They run the gamut, from the expected support of unions and other advocates for working people, to the fear-mongering hyperbole of the major trade associations. CPR Member Scholars Sid Shapiro and Martha McCluskey joined us in submitting our own comments to the record. You can read them here. Silica dust is a pervasive occupational hazard. The vast majority of exposed workers toil in the construction industry, where clouds of dust surrounding jackhammers, masonry and concrete saws, and brick and mortar work are an all too common sight. OSHA seeks to eliminate those dangerous conditions by encouraging employers to provide modern tools that have better dust collectors, shrouds, and water feeds to suppress the dust. The proposal also addresses the myriad other industries where silica exposure leads to debilitating cases of lung cancer, silicosis, and silica-related kidney disease. Dental laboratories, ship repair companies, and ceramic refractories will also be subject to the rule's new requirements. Wed, 12 Feb 2014 08:59:46 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2664D41E-9BFC-AAFE-6DEF545CB0063542 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2664D41E-9BFC-AAFE-6DEF545CB0063542 A group of eight CPR Member Scholars today submitted a letter to Reps. David Schweikert and Suzanne Bonamici, the chair and ranking member, respectively, of the House Committee on Science, Space, and Technology's Subcommittee on the Environment. The letter levels a series of powerful criticisms at Schweikert's proposed "Secret Science Reform Act," yet another in a series of bills from House Republicans aimed at gumming up efforts by the Environmental Protection Agency to exercise authority granted it by Congress to protect the environment. Schweikert and his cosponsors maintain that the EPA is adopting regulations based on science that should be available to the public, but is not. That's true. But the bill steers clear of the actual problem, and instead focuses on harassing EPA regulators. The real problem with secret science in the regulatory process is that industry science is carefully shielded from public scrutiny by statute. By contrast, the studies Schweikert goes after are typically published in peer-reviewed journals. As the scholars write, H.R. 4012 threatens to undermine the scientific rigor of EPA's decision-making while leaving the true "secret science" problem untouched. "Secret science" is indeed pervasive in some regulatory programs, yet H.R. 4012 does nothing to address the most serious problems since it inoculates from its reach existing, outdated legal provisions that tolerate the sequestration of research. For example, under Section 10(g) of the Federal Insecticide, Fungicide, and Rodenticide Act, the public and affected parties are not allowed to view the studies underlying EPA's licensing of pesticides until after the agency's registration decision is concluded, and even then the research is available only to the public under tightly constrained circumstances. 1 Even more problematic, as a result of aggressive trade secret claims, the research on the safety of more than 17,000 chemicals regulated by EPA under the Toxic Substances Control Act is completely insulated from public view by law. Such impediments to public access undermine independent evaluations of the evidence used by EPA in its regulation, yet they remain untouched by the very bill that promises to expose this secret science. By contrast, H.R. 4012 targets publicly available research, much of which has been published in peer reviewed journals, as the area in need of heightened transparency. Even more perplexing, the bill tasks EPA -- not the researchers -- with the enormous task of amassing the data underlying each relevant study. If EPA is unable to summon the resources or time to access this underlying information or is otherwise unable to acquire the data, it is apparently prohibited from considering the stud(ies) in its regulatory decision. The scholars go on to criticize the proposal because it would impose significant new costs that are "disproportionate to any plausible benefits," and "facilitate further mechanisms for harassing scientists." The co-authors are CPR Member Scholars John Applegate, Holly Doremus, Emily Hammond, Thomas McGarity, Noah Sachs, Sidney Shapiro, Rena Steinzor and Wendy Wagner. NRDC's John Walke live-tweeted Schweiker's hearing this morning on the bill. Take a look. Tue, 11 Feb 2014 13:43:34 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=22429BD1-A327-D789-ACCE509A6765A5A4 http://www.progressivereform.org/CPRBlog.cfm?idBlog=22429BD1-A327-D789-ACCE509A6765A5A4 Anchorage, Alaska is more than 4,000 miles away from the Chesapeake Bay, yet Alaska joined 20 other states on Monday in asking a federal appeals court to overturn the EPA-led plan to restore the Bay, known as a Total Maximum Daily Load (TMDL). While Alaska's interest in the Bay-wide TMDL is murky, the history of the lawsuit is straightforward. In 2009, the Obama administration issued Executive Order 13,508, directing EPA to take a leadership role in cleaning up the Bay. The Bay-wide TMDL, often referred to as a "pollution diet," followed in 2010. It imposed strict limits on the quantities of nitrogen, phosphorus, and sediment that could be discharged into the Bay and allocated the total permissible amount of each pollutant among the Bay states and the District of Columbia, leaving it up to the states to determine how to meet the specific allocations. In 2011, the American Farm Bureau Federation and Pennsylvania Farm Bureau sued EPA claiming that the agency did not have the authority under the Clean Water Act (CWA) to issue the TMDL. In a decision this past September, U.S. District Court Judge Sylvia Rambo disagreed. The Farm Bureau immediately signaled its intent to appeal to the Third Circuit and filed its brief with the court last week. The states filed their amicus brief Monday in support of the Farm Bureau. Fri, 07 Feb 2014 14:27:35 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0DD148EA-B0C2-A782-8E73E0410E24E5E1 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0DD148EA-B0C2-A782-8E73E0410E24E5E1 The recent chemical spill disaster in West Virginia has brought into sharp focus the weak measures we have in place for safeguarding people and the environment against exposures to harmful chemicals. State and civil justice systems have helped to fill the resulting void by providing individuals who have suffered harmful exposures with an opportunity to hold accountable any people or corporations responsible for the chemical by seeking reasonable compensation for their injuries. It's often difficult to win these cases, and even victory won't undo the pain and fear that comes with suffering from cancer or other illnesses that can result from harmful exposures to toxic chemicals, but the process does hold out the possibility that victims can obtain some measure of justice for the harm they have endured. Recently, industrial chemical manufacturers and users have supported a new and subtle method for undermining legal responsibility. They are using efforts in the U.S. Senate to update the Toxic Substances Control Act (TSCA) - the primary law governing federal regulation of hazardous chemicals - to enact "evidentiary preemption." Specifically, the chemical industry is supporting the Chemical Safety Improvements Act (CSIA), which contains a provision that would fundamentally change how civil courts consider evidence regarding the harms posed by toxic chemicals in many tort cases where people have been injured by those substances. The upshot is that in many instances even plainly dangerous chemicals would be incorrectly regarded as "safe" for evidence purposes, which would effectively immunize the manufacturers and users of those chemicals against any liability for the harms that the substances might cause. These companies already have a pretty sweet deal, since TSCA is so ineffective in controlling chemicals in the first place. This bill would guarantee them an even sweeter deal: weak regulations and a hamstrung civil justice system. Fri, 07 Feb 2014 09:52:47 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0CD4FFD6-9FDB-7ED9-174A7BA04E72FA86 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0CD4FFD6-9FDB-7ED9-174A7BA04E72FA86 Every day, we are presented with more evidence of the need to inspect for environmental violations and enforce the nation's laws. The evidence is stark in the Chesapeake Bay region where, in 2012 alone, just 17 large point sources reported illegal discharges of nitrogen totaling nearly 700,000 pounds. These violations put the watershed states behind in their efforts to restore the estuary and meet the 2025 goals of the Bay pollution diet. The problem cries out for stronger enforcement of environmental laws, and yet EPA recently released a draft FY 2014 - 2018 Strategic Plan that signals that the agency will retreat significantly from traditional enforcement in the coming years. Specifically, EPA aims to conduct 30 percent fewer inspections and file 40 percent fewer civil cases over the next five years as compared to the last five. CPR's newest Issue Alert, which I co-authored with CPR President Rena Steinzor and Member Scholar Rob Gicksman, argues that traditional enforcement should be the last function the agency should cut because it is the most cost-effective weapon to prevent backsliding on the progress the nation has made in reducing traditional pollution. Instead of traditional enforcement, the agency's plan embraces a new enforcement paradigm called "Next Generation Compliance." NextGen relies on self-monitoring and reporting by polluters, aims to make regulations "easier" for them to comply with, and replaces the way EPA measures the effectiveness of its enforcement activities with untested methods. The Issue Alert finds that EPA's new enforcement scheme has at least four specific shortcomings: It relies on industry to police itself, an untested and unproven approach that on its face invites noncompliance; It signals a clear rollback in traditional deterrence-based enforcement, a tested and proven approach; It seeks to mask the plain harm to public health and environmental protection of congressional budget cuts with breezy, even risible assertions of improved enforcement; and Its retreat from enforcement and related budget cuts could irreparably delay the restoration of the Chesapeake Bay and other natural treasures. This retreat from enforcement could severely undercut regulated entities' commitment to meet their responsibilities, exposing the public to unacceptable health and environmental risks. Enforcement should be the last function to suffer from inadequate budgetary allocations. You can read a summary of the report here. Tue, 04 Feb 2014 13:30:38 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FD6688AC-096E-7AC9-B66FCC1108A9406C http://www.progressivereform.org/CPRBlog.cfm?idBlog=FD6688AC-096E-7AC9-B66FCC1108A9406C Today, separate House committees will hold hearings that address two federal agencies' efforts to regulate toxic chemicals. The House Energy and Commerce Committee's Subcommittee on Environment and the Economy will hold its fifth hearing on issues arising out of ongoing efforts to reform the Toxic Substances Control Act (TSCA). Simultaneously, the House Education and Workforce Committee's Subcommittee on Workforce Protections will hold a hearing addressing, among other things, OSHA's recent attempts to spur better protections for workers who face chemical hazards. The two hearings have been framed differently and will feature different witnesses, but they share a common thread: each committee's Republican majority is championing a worldview in which federal agencies should be restricted from engaging in the most basic form of protective action - gathering and sharing information about toxic chemicals' risks. The Energy and Commerce hearing, which has a rather conspicuous absence of EPA officials on the witness list, will focus on the provisions of TSCA that relate to chemical testing. It is commonly accepted that EPA - and especially, the public - lack sufficient knowledge about the hazards presented by toxic chemicals in our environment. TSCA does not set out minimum requirements for testing that companies must undertake before putting a chemical in the stream of commerce, so we are left to deduce potential toxicity from whatever information companies voluntarily disclose to EPA in their "pre-manufacture notifications" and EPA's own analysis of potential toxicity using models that compare chemicals of similar structure and composition. To make matters worse, some 60,000 chemicals were already on the market when Congress wrote TSCA in 1976 and their uses were grandfathered in, meaning that companies were not required to submit any testing information to EPA. Expect witnesses at the hearing to agree that more information would improve the balance between protecting the environment and protecting chemical companies' bottom lines. But don't expect them to agree on how to get more information. As we wrote in a July 2013 Issue Alert, the best solution involves multiple pieces: minimum data sets for all new and existing chemicals, prioritized review of those data sets, and information sharing between EPA and the European Chemicals Agency, which is pulling in large amounts of new information through its revolutionary REACH legislation. Tue, 04 Feb 2014 09:30:39 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FD4E48EB-F9E9-5B84-0CB86A85A0860EDE http://www.progressivereform.org/CPRBlog.cfm?idBlog=FD4E48EB-F9E9-5B84-0CB86A85A0860EDE Suddenly politics in this country appears to have taken a turn toward democracy and away from markets. As we develop in a book just published by Oxford University Press, Achieving Democracy: The Future of Progressive Reform, the history of the United States reveals a pattern in which citizens alternate between relying on markets and democracy, including government intervention in those markets, to achieve the type of country in which we wish to live. Consider: President Obama was reelected over Mitt Romney, who sought to distinguish his candidacy by forcefully endorsing the small government approach. Congress has passed a budget, rejecting Tea Party efforts once again to derail the budget process until the Affordable Care Act has been repealed. The administration is finally on its way to implementing the Act, despite unrelenting efforts to obstruct it. Republicans have joined Democrats in discussing economic inequality. Regulation of Wall Street proceeds apace after the investment banks and mortgage lenders sank the American economy with their recklessness as they now write multi-billion dollar checks for their malfeasance. If indeed the tide has turned, the country is emerging from a cycle deemphasizing government that dates back to the election of Ronald Reagan. It is too early to know for sure whether the country will once again embrace government as leader and partner in order to address pressing problems that markets have caused or are unable to address. Certainly the poisoning of drinking water in Charleston, West Virginia, the latest highly visible crisis attributable to the failure to engage in effective regulation, should help add momentum. But Tea Party-backed governors and legislatures are still in control in many of the states, and they're so eager to please the right-wing constituencies that they've turned back federal dollars that would pay for health Thu, 30 Jan 2014 11:31:06 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E3FCA8E8-082A-6782-14C474239D177924 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E3FCA8E8-082A-6782-14C474239D177924 Recently, the U.S. Chamber of Commerce released a report entitled Energy Works for US: Solutions for America's Energy Future. The data and references in the report are largely accurate, as far as they go, and the report promotes energy efficiency, which is a welcome step. Ultimately, though, the report is unreliable because it has too narrow a vision of the energy future. It inaccurately characterizes government regulation and neglects the environmental consequences surrounding the production, use, consumption, and disposal of our energy resources. Instead, Energy Works is more of a political polemic rather than a useful white paper. While it may well serve the Chamber's political agenda, Energy Works for US fails to recognize the complexities and challenges necessary to fashion our energy future. Our energy future is as important a policy matter as any that now confronts the United States. Any discussion of our energy future, therefore, must be conducted with openness and candor and must recognize the complexities and challenges of fashioning that future. Unfortunately, Energy Works fails on each these counts. Mon, 27 Jan 2014 14:35:24 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D5321448-0E25-EFFE-A6BFAE03BF53DB69 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D5321448-0E25-EFFE-A6BFAE03BF53DB69 As people across the country and around the world watched the tableau of 300,000 West Virginians give up their drinking, cooking and bath water for days on end because an untested toxic chemical was spilled by a company that was co-founded by a twice-convicted felon, the ever-present John Boehner (R-Ohio) had pungent advice for President Barack Obama. "We have enough regulations on the books. And what the administration ought to be doing is actually doing their jobs. Why wasn't this plant inspected since 1991?" he declared. "I am entirely confident that there are ample regulations already on the books to protect the health and safety of the American people. Someone ought to be held accountable here." Consistency, of course, is the hobgoblin of small minds and, unfortunately, no member of the media thought to ask Speaker Boehner whether sequestration and other merciless budget cuts might have something to do with the lack of inspections. Or, to put the issue more bluntly: Why won't anyone in the press ask the Speaker and his ilk whether we get the government we pay for and whether, these days, we aren't paying - or getting - enough? But fair is fair: John Boehner isn't the president, and this latest catastrophe happened on President Obama's watch, along with a string of other, disturbingly similar episodes. Wed, 22 Jan 2014 11:46:43 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BA44ED6D-0D0A-1165-20E8C4D35722B8D3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BA44ED6D-0D0A-1165-20E8C4D35722B8D3 It's time to put to bed an unfortunate myth that's been floating around the last few weeks. The myth goes something like this: The Office of Information and Regulatory Affairs (OIRA) - the opaque bureau within the White House charged with approving agencies' draft regulations before they can be released to the public - has succeeded in improving the timeliness of its reviews during the last few months. OIRA has long been a roadblock to the successful implementation of critical safeguards, so if true, this claim would be welcome news. But, when OIRA's recent record is viewed with a more critical eye, this claim simply does not hold up. While it's true that OIRA has recently cleared its docket of several high profile draft rules that have been stuck there for several months or even years, in many cases OIRA has done so by relying on what almost amounts to an accounting trick - one that seems calculated to skirt any meaningful transparency requirements. A few months ago, CPR noticed a disturbing trend in which OIRA was increasingly using an obscure and relatively uncommon process known as a "withdrawal" to end some long-overdue reviews of high profile draft rules. Among the first rules to be disposed of through this scheme included the Environmental Protection Agency's (EPA) draft proposed Chemicals of Concern list (withdrawn from OIRA review on September 6, 2013, after 1,214 days) and the National Highway Traffic Safety Administration's (NHTSA) draft final rule for rearview cameras in automobiles (withdrawn from OIRA on June 20, 2013, after 583 days). So, what is a withdrawal and why does it matter? A withdrawal occurs when the rulemaking agency (for example, the EPA or NHTSA) voluntarily withdraws a draft rule from OIRA review before it has been completed. The withdrawal process is distinct from a "return," which occurs when OIRA ends the review by sending the draft rule back to the rulemaking agency for more work instead of approving it. From a transparency perspective, there is a crucial difference between withdrawals and returns. When OIRA uses a return to end a review, Executive Order 12866 (a legal document that governs OIRA review) requires that it issue a public "return letter" that explains the problems with the draft rule and why OIRA was otherwise unable to approve it. In contrast, with a withdrawal, the rulemaking agency is under no obligation to offer a public explanation for why it decided to withdraw the draft rule from OIRA review. Wed, 22 Jan 2014 10:09:29 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BA7F8447-BE0E-65D3-7A00AB82FD8404B2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BA7F8447-BE0E-65D3-7A00AB82FD8404B2 In the wake of the toxic chemical spill in Charleston, West Virginia that contaminated the city's water supply, citizens across the country are wondering if it could happen to them. Given gaps in our environmental and chemical regulation regime, the answer is a resounding yes. For the past year, I've been investigating problems of chemical storage and contamination in Virginia, and this week, the University of Richmond School of Law released a new report authored by me and law student Ryan Murphy, "A Strategy to Protect Virginians from Toxic Chemicals." This report is the first comprehensive study of chemical dangers in the Commonwealth and calls for major reforms. Virginia has a self-image as a pristine, primarily agricultural state but we found that Virginians are subjected to a wide variety of risks from industrial chemicals. The reality is that Virginia ranks worryingly high in the amount of toxic chemical releases into our water and air compared to other states. Two million Virginians live in communities that fail at least one federal health standard for air pollution. Fish consumption advisories have been issued for nearly all major Virginia waterways due to toxic contamination. The chemical spill in West Virginia should be a wake-up call for the Commonwealth to address the toxic threats in our own backyard. Mon, 20 Jan 2014 10:59:29 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B05FA9D9-D37F-C80A-167B6B8B489CE7FB http://www.progressivereform.org/CPRBlog.cfm?idBlog=B05FA9D9-D37F-C80A-167B6B8B489CE7FB For the past week, 300,000 people in and around Charleston, West Virginia, have been unable to drink the water that came from their taps, because of the toxic byproduct of feeble regulation and non-existent enforcement. Thousands of gallons of a coal-cleaning agent seeped into the local water supply after it oozed out of an antiquated storage tank and then overflowed a surrounding containment area just a mile upriver from the local water plant. Significantly, inspectors had not visited the facility in more than a decade, except by a smattering of state officials focused on air pollution, who walked on by the corroded tank and the bird's eye view of the river. Disturbingly, we know very little about the effects of the chemical on humans. The weak federal Toxic Substance Control Act and the diminished enforcement power of the EPA and state officials in West Virginia have left local residents and citizens across the country wondering how their government came to be so powerless to stop this obvious hazard, made worse by the keystone-cop ineptitude of West Virginia's Governor Tomblin in the days after the spill. The search for an answer to that question leads right to the doorstep of anti-regulation politicians like Sen. Mitch McConnell from Kentucky. Decades of coal mining in the region have taken a profound toll on mountains, valleys, streams, and rivers, throughout Appalachia. And as Charleston takes its place in the history of regulatory disasters alongside the West Texas chemical plant disaster and the BP spill in the Gulf, what is the Senate Minority Leader's priority this week? Not examining how to repair the shredded regulatory infrastructure that left West Virginians without clean water. To the contrary, he's focused on cutting back further on attempts to rein in the pollution caused by coal production. Fri, 17 Jan 2014 16:58:50 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A2361DE0-0374-6E4E-2255280AEB50496F http://www.progressivereform.org/CPRBlog.cfm?idBlog=A2361DE0-0374-6E4E-2255280AEB50496F As congressional negotiators reconcile the House- and Senate-passed Farm Bills, they are considering two provisions that would cut off access to information about federally subsidized farm programs and threaten public health and safety. The Farm Bill will provide farmers with billions of dollars in federal subsidies, crop insurance, conservation payments, and other grants. The vast majority of the farms that qualify for these federal dollars are incorporated businesses that turn a profit by working the land. Yet, by conjuring up idealized images of a family sharing an old-fashioned farmhouse at the end of a country lane, the farm lobby managed to convince House lawmakers to pass two provisions that would prohibit federal agencies from revealing much of the basic information about the farms. The government does not take such a hands-off approach with any other recipient of federal money. This information can be critical to maintaining public health and safety. For example, massive livestock operations, which can dump fecal bacteria, hormones, nutrients, and other waste into waterways, can threaten the health of families who live nearby. Basic information, such as the location of the farm, is often available from state agencies - CPR and the Chesapeake Commons recently developed a map of industrial animal farms in Maryland using information from the Maryland environmental agency, for example. Under the House-passed Farm Bill, useful projects like this would never be possible at a national scale. Tue, 14 Jan 2014 16:26:02 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=92A4CB7B-9750-BB50-9348063317E6B3F9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=92A4CB7B-9750-BB50-9348063317E6B3F9 In his 2013 book, The Bet, Yale historian Paul Sabin uses Paul Ehrlich and Julian Simon as foils to explain today's dysfunctional and polarized politics surrounding energy development and environmental protection. In 1980, Ehrlich and Simon bet each other on the price of five minerals (chromium, copper, nickel, tin, and tungsten.) Ehrlich, a neo-Malthusian, and father of Zero Population Growth, believed that thoughtless and unconstrained consumption of natural resources by an ever-expanding human population would literally doom the planet. Ehrlich posited that by 1990, world population growth would exacerbate the scarcity of natural resources and, therefore, resource prices would rise. Simon, by contrast, took the position that population growth was an overall benefit to society and that innovation and market pricing would cause resource prices to fall. Simon argued further that the human creativity that population growth entailed would spur economic growth and increase human well-being. To Simon, a no-growth policy was unwise, inefficient, and would itself doom the planet. As it turned out, ten years later, all of the resource prices fell and Ehrlich lost the bet. However, his defeat was more a matter of market timing than anything else. As Professor Sabin points out, if different ten-year periods were used between 1900 and 2008, Ehrlich would have won the bet 63 percent of the time. Sabin, of course, uses "the bet" as a focal point for a larger story. Similarly, he uses Ehrlich and Simon as markers for a debate about energy development and environmental protection that has been ongoing for more than 40 years. Sabin's thesis is that not only has the debate continued; it has become shriller and more polarizing. It is the polarization that occupies Sabin's analysis. Sabin also notes each personality failed to acknowledge the contributions made by the other. From his perspective, there is a widening rift between pro-environmentalism and pro-growth advocates that continues to this day as these opposing positions continue to harden. Such hardening, however, need not be the case. Quite simply, the divide between energy and the environment can be neatly bridged by a transition to a clean energy future. Wed, 08 Jan 2014 14:10:10 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=73423E9A-BE04-B7D1-CC70733C5B913213 http://www.progressivereform.org/CPRBlog.cfm?idBlog=73423E9A-BE04-B7D1-CC70733C5B913213 The Food and Drug Administration (FDA) recently recommitted itself to its lame proposal to address the profligate use of antibiotics in livestock by enlisting the voluntary participation of the drug companies that make the antibiotics. Two documents issued last month reveal the details of the agency's current plans. The first is a final guidance document describing the FDA's process for handling drug sponsors' voluntary efforts to phase out "production uses" of antibiotics in animal feed and water and to bring the remaining uses under the oversight of a veterinarian. The second is a draft rule relaxing the requirements for veterinarians in exercising this oversight. Production uses are aimed at promoting growth and improving feed efficiency, not at treating active infections. The FDA will continue to allow mass medication of whole herds and flocks of livestock for purposes of preventing infection. The FDA has, in internal documents, conceded that "all" of the relevant drug companies must participate in order to make its approach work. But there is no guarantee that even a significant number of these companies will voluntarily give up production uses simply because the FDA asks them to. Even if some do - Zoetis and Elanco have said they intend to - there is no guarantee that other companies will not step in to capture the market share given up by the volunteers. And even if they do not - note the piling of hope upon hope required to believe the FDA's policy might succeed - these companies will, under the FDA's approach, still be allowed to feed antibiotics to whole herds and flocks of food-producing animals so long as they call it "disease prevention" rather than "growth promotion" or "feed efficiency." Not surprisingly, criticisms of the FDA's proposal have been withering. Previous critiques of the FDA's approach have, however, missed a key aspect of the agency's approach, one that is both troubling and fixable: the near-complete opacity of the FDA's program. In its recent guidance document explaining its policy on livestock antibiotics, the FDA promises just three measures to keep the public apprised of its work. First, the agency promises to post on its website a list of the drug products initially affected by its guidance document; the agency has already done this. Second, the agency says that it will, after the three-month period in which drug sponsors are to inform the agency if they will take part in the agency's voluntary initiative, "publish summary information to provide an indicator of the level of engagement of affected drug sponsors in the voluntary process." Third, the FDA will notify the public "of completed changes to affected products through publication of approval of supplemental new drug applications" - or, in other words, it will tell the public when it has approved any drug companies' requests to remove production uses from the list of indicated uses for their products. Mon, 06 Jan 2014 14:49:49 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6919AA1A-0E24-3AF9-DBFA1C710B9E30E0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6919AA1A-0E24-3AF9-DBFA1C710B9E30E0 Has the U.S. "exported" its carbon emissions to China by relying on China to manufacture so many of our goods? There seems to be growing support for the idea that carbon emissions should be tied to consumption of goods rather than their manufacture, as the NY Times reported recently. There is a grain of truth to the idea. But consumer responsibility should be considered secondary. The primary responsibility rests with producers. Most of the debate has been about climate change. But it may be easier to think through the issue in a less contentious context. Consider the problem of water pollution in the Mississippi River, which results in the infamous dead zone in the Gulf of Mexico. Agricultural runoff in the Midwest is a big part of the problem. A significant portion of the U.S. corn and soybean crops are exported to Asia. Does this mean that Asians have a responsibility to help us solve our water pollution problem, maybe by paying Midwestern farmers to adopt more sustainable practices? Have the Chinese "exported" their agricultural pollution problem to the U.S.? This idea seems dubious. It seems obvious that it is Americans who have the primary responsibility for reducing the water pollution caused by our own agriculture runoff, regardless of where the crops are sold. The same logic seems to apply to carbon emissions. Some people might argue that the two situations aren't comparable because of the economic disparity between the two countries. But it's not as if we've somehow forced the Chinese to produce cheap goods for us or blocked them from controlling their carbon emissions. China is very much an autonomous actor into today's world. Thu, 02 Jan 2014 09:17:51 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=532A8279-C095-5603-09289C99EBBEF2F0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=532A8279-C095-5603-09289C99EBBEF2F0 Climate change and pollution affects everyone. Global warming-induced hurricanes pummel our coasts and droughts ravage our farmland. Our neighbors, friends, and children develop asthma and heart attacks because of air pollution and our favorite parks and hunting grounds are withering away. The science is conclusive and polls reflect the concern of many Americans about global warming and its related pollution. So what can account for the lack of government action on the issue? The answer has a lot to do with our broken campaign finance system and the ability of individuals committed to denying the existence of climate change to dump huge amounts of money (much of it secret) into elections and in the political process. During the 2012 election, outside spending groups, many of them newly created in the wake of the Supreme Court's Citizens United decision, reported spending more than $1.28 billion to influence voters and politicians. Of the amount disclosed, just 132 individuals who contributed over $1 million each were responsible for the bulk of Super PAC spending. Significant amounts were dumped into the campaign coffers of members of Congress by regulated industries that have taken an active role in opposing any new efforts by the President to move forward on greenhouse gas regulations. Mon, 23 Dec 2013 11:02:01 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=203066C8-FEE9-097C-40E16DA0C997D4E3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=203066C8-FEE9-097C-40E16DA0C997D4E3 Many Senate Democrats try to paint themselves as defenders of working people. They rail against their colleagues who are "in the pockets of corporations and the rich." But what they say, and what they do are two different things. This time, seven Democratic Senators are ready to screw poultry workers to please the owners of the poultry companies. We've been writing for nearly two years on the USDA's plan to "modernize poultry inspection" (e.g., here, here, here, here). It's a plan that will give Tyson, Perdue, Pilgrims' Pride and other poultry producers an additional $250 million a year in revenue. It will allow USDA to eliminate 800 inspectors, and it won't improve, and could make worse, food safety. To "sell" poultry companies on the plan, USDA will allow them to increase line speeds up to 175 birds per minute. The industry and USDA are well aware that poultry workers already suffer disabling repetitive motion injuries from the unrelenting speed of the dis-assembly lines. A recent study by the CDC revealed that more than 40 percent of poultry workers at one Pilgrims' Pride plant suffer from carpal tunnel syndrome. USDA's plan will make this very bad situation even worse. Thu, 19 Dec 2013 16:52:06 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0CD7ECF8-F48E-F16B-5249AEDD8AA01859 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0CD7ECF8-F48E-F16B-5249AEDD8AA01859 Some members of Congress apparently do not want agencies to regulate powerful agricultural and pharmaceutical interests in order to protect the public from dangerous risks in food. Yet rather than say that - and be held accountable to the electorate for the consequences - some members have developed what has become a standard, indeed almost boilerplate pretexts to hide their endgame. Specifically, they have drafted legislation that requires agencies to develop elaborate "high standards" for the use of science before they can regulate (unless there is an "imminent threat to health or safety" or some "other emergency"!). When that didn't work, they decided to go the completely undemocratic route and add it as a rider to a bill that would have to pass - the Farm Bill. Still more problematic, rather than deferring to the scientific community's idea of what these high scientific standards should be, Congress establishes the rules of the game on their own. Given their politically-charged origins, it is thus not surprising to find that these congressionally developed rules are decidedly not in the public interest, nor are they consistent with the true "high standards" of science. From a political perspective, this good science scam is ingenious. Since "good science" sounds like a good thing - like motherhood and apple pie - insisting on still more of it in legislation seems to most ordinary people likely to only help rather than hurt regulation. And, as long as no-one really knows what good science is, there is not a standard against which to hold the legislative proposal to determine whether the law is on the right track. So at first blush, it does not seem that there is anything to lose from demanding high scientific standards on the agencies. Thu, 19 Dec 2013 11:53:10 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0BC5B853-E47B-7DA8-F0A6C75F54730CCA http://www.progressivereform.org/CPRBlog.cfm?idBlog=0BC5B853-E47B-7DA8-F0A6C75F54730CCA It's like a Russian nesting doll of bad policy: House Republicans have contrived to take one of the most anti-science bills in memory and then place it inside one of the most anti-democratic legislative vehicles available. It's part of an attempt to ram through into law new rulemaking requirements that would benefit the already-healthy bottom lines of their corporate benefactors at the devastating expense of the health, safety, pocketbooks, and perhaps even lives of the American public. That's what is at stake with an obscure three-page rider - Section 12307, euphemistically entitled "Ensuring High Standards for Agency Use of Scientific Information" - in the 700-page House version of the Farm Bill (H.R. 2642, the Federal Agriculture Reform and Risk Management Act of 2013) that is currently undergoing conference committee consideration to resolve differences between it and the Senate version of the Farm Bill. (See page 654 of the bill for the rider - seriously, page 654! - which is available here; warning, this is a huge PDF.) This anti-science rider began life as a stand-alone anti-science bill (also) euphemistically entitled the "Sound Science Act" (H.R. 1287), originally introduced by Rep. Stephen Fincher, a Tennessee Republican. If enacted, it would require all agencies (including independent agencies) to develop a conspicuously complex set of guidelines, which would purportedly improve agencies' use of "science" in "policy decisions," a term the rider defines very broadly to include virtually any type of agency activity, including non-legally binding guidance documents. The rider states that these policy decisions may not take effect unless they are in strict compliance with those guidelines. The rider appears to make this requirement judicially enforceable by declaring that policy decisions that fail to comply with an agency's guidelines are "arbitrary, capricious, an abuse of discretion, and otherwise not in accordance with law." (Because this section of the rider is so amateurishly drafted, it's not entirely clear how this mechanism will work in practice. What is clear, though, is that if the rider becomes law, this section is sure to invite lots of costly, time-consuming, and wasteful litigation.) Thu, 19 Dec 2013 11:36:02 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0BB68759-D2A0-9ADA-F8B0F339987395FA http://www.progressivereform.org/CPRBlog.cfm?idBlog=0BB68759-D2A0-9ADA-F8B0F339987395FA Recently, the Administrative Conference of the United States (ACUS) adopted a statement on how to improve the "timeliness" of rule reviews by the White House Office of Information and Regulatory Affairs (OIRA). As regular readers know, OIRA has time and again delayed the release of crucial health, safety, and environmental regulations, leaving the public exposed to unnecessary dangers while these rules gather dust on OIRA's desk - like the proposed rule on silica exposure that was delayed for over two and a half years. Before discussing how ACUS addressed this issue, it's worth considering what ACUS didn't address. The project's original title probably set expectations too high: "Improving the Timeliness, Transparency, and Effectiveness of OIRA Regulatory Review." The stage appeared to be set for a broad examination of OIRA's role, including its failure to meet the deadlines and disclosure requirements set forth in the document that gives it authority to conduct regulatory review: Executive Order 12,866. However, it soon became clear that only one of those three factors (timeliness) would be on the table for discussion, and the other two concepts were dropped from the project's title. Tue, 17 Dec 2013 09:40:45 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=00FFC1EB-AE36-410F-28714CA5DE197BA1 http://www.progressivereform.org/CPRBlog.cfm?idBlog=00FFC1EB-AE36-410F-28714CA5DE197BA1 In 2001, a group of private citizens, public health groups, and medical organizations petitioned the Food and Drug Administration (FDA) to approve nonprescription status for the emergency contraceptive Plan B and its generic cousins. Under the Food, Drug, and Cosmetic Act, the FDA's decision was supposed to turn on whether these drugs could be taken safely and efficaciously without the assistance of a licensed health professional. Instead, an investigation by the Government Accountability Office (GAO) and fact-finding by the district court handling litigation over the controversy made clear that the FDA bowed to political pressure, first by delaying any decision as long it could and then by being as stingy as possible in granting nonprescription access to emergency contraceptives. Over a twelve-year period, the agency resorted to extreme measures to avoid answering the statutorily dictated question: whether women and girls could safely and efficaciously take emergency contraceptives without permission from a licensed health professional. With every new stratagem, the agency dug itself deeper into an administrative law hole: inventing policies on the fly, grasping at tangents, shrouding the truth, and cowering before illegitimate political demands. No wonder that a district judge hearing a challenge to the FDA's decision making finally had had it with the FDA's shenanigans and ordered the agency to make emergency contraception available without restriction to all women and girls of child-bearing age. No wonder that the FDA was left with paltry legal arguments in its (now-abandoned) appeal of the trial court's decision. No wonder that the whole episode left observers inside and outside the agency shaking their heads over the sad retreat of a proud institution. Thu, 12 Dec 2013 17:10:20 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E8DBDE60-AD29-5265-1A59398B1868D7D9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E8DBDE60-AD29-5265-1A59398B1868D7D9 Earlier this week, the Supreme Court heard oral argument in EME Homer City Generation v. EPA. At issue in the case was the ability of EPA to regulate cross-state pollution, or pollution generated in some states that is carried over to others downwind. Eight "downwind" states, primarily in the Northeast, filed a brief in support of the Court's review of a previous decision by the D.C. Circuit Court of Appeals, which struck down the rule EPA implemented to regulate cross-state pollution. The rule stems from the "Good Neighbor" provisions of the Clean Air Act, which calls on EPA's good judgment to address the issue of one state unfairly polluting another. More than 90% of ozone levels in Connecticut stem from out of state pollution sources, contributing to the soaring levels of asthma and respiratory illness in the area. In order to mitigate this kind of pollution from other states, the EPA devised a cost-based system to determine what kind of plan an upwind state must implement in order to reduce pollution when the state has inadequately created its own plan to limit its pollution in other states, also known as the transport rule. Upwind states, industry and labor groups argue that the federal government is inappropriately inserting itself into a decidedly state issue when the federal government does not have adequate information to assign pollution-reduction plans. Most reports of the oral arguments interpret a favorable stance from the Justices towards the EPA's cost and science-based approach to regulate what it describes itself as a "dense spaghetti-like matrix." However, and as I've discussed in this space before, the procedural questions about whether the D.C. Circuit should have reviewed the transport rule in the first place, largely escaped the attention of the Justices even though the issue was briefed. Thu, 12 Dec 2013 13:21:45 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E80ADBE0-CACE-552C-2A4D86680BFB3AA1 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E80ADBE0-CACE-552C-2A4D86680BFB3AA1 Former (de)regulatory czar Cass Sunstein is back, full of advice on how to run the government from his perch as a Harvard law professor. In a "View" column for Bloomberg News entitled "Left and Right Are Both Wrong About Regulation," Sunstein urges his former allies and enemies to redouble their efforts to "look back" at old rules. He claims that forcing agencies to rummage through their closets in search of bad rules has already saved "billions of dollars," although the only tangible example he offers is the recent Federal Aviation Administration (FAA) decision to allow people to use electronics on airplanes - popular, to be sure, but probably not such a plus for the economy. Sunstein is deaf to any perspective on the regulatory state other than his deeply held prejudice that it is over-regulating and must be choke-chained through the zealous application of cost-benefit analysis. As he did when he held the tight-collared short leashes of the regulatory agencies from his corner office at the White House, he ignores the many recent public health crises that tougher rules would have prevented. Consider, for example, the 2012 meningitis outbreak that sickened 741 and killed 64 people in 20 states. In the early fall of that year, people began to die from virulent infections after receiving spinal injections of methylprednisolone, a steroid drug used to relieve back and shoulder pain. Suspicious doctors discovered that the injections originated at the New England Compounding Center (NECC) in Framingham, Massachusetts. The company, which had been in trouble with federal and state regulators repeatedly for more than a decade, is sadly representative of serious problems within this industry. When federal and state inspectors inspected 31 "high-risk" compounders in 18 states last April, 28 got Form 483's - FDA-speak for bad conduct reports. All were engaged in abuses from mixing drugs in "clean rooms" contaminated by mold to getting the composition of medications wrong. Yet compounders are regulated by state pharmacy boards that are ineffective. Companies are not required to register with the federal government, and the Food and Drug Administration's (FDA) authority to prevent them from selling adulterated drugs is hamstrung by recent court decisions. As she withstood blistering condemnation of House Republicans, FDA Commissioner Margaret Hamburg begged her congressional overseers to give her agency the tools needed to police the industry. Compounders provide 40 percent of intravenous medications used in hospitals, up from 16 percent just a decade ago. If NECC is not a rogue company but rather a typical example of how fast and loose practices allowed this industry to grow by leaps and bounds, we're in big trouble. Yet, when Congress reared up on its tiny hind legs to address this crisis, it passed a shamefully weak law that would let compounders choose whether they wanted to register with the FDA and be regulated, or whether they preferred to do business as usual. The magical thinking behind this approach is that market forces will compel reputable companies to register. Sunstein never says a word about such episodes. Instead, he urges the President and Congress to assign agencies like the FDA to double-down on elaborate calculations that purportedly measure whether the benefits of protecting public health might be outweighed by the costs of imposing such requirements on industry. Tue, 10 Dec 2013 13:03:36 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DDAD4C84-DA1D-D073-EFF093E52BB4972C http://www.progressivereform.org/CPRBlog.cfm?idBlog=DDAD4C84-DA1D-D073-EFF093E52BB4972C Today, Center for Progressive Reform Member Scholar and University of Texas law professor Thomas O. McGarity published an op-ed in theNew York Times entitled,"What Obama Left Out of His Inequality Speech: Reguation." In a speech last week, the President highlighted the problems associated with extreme socio-economic disparity. But, as McGarity notes in his piece: [T]here's a crucial dimension the president left out: the revival, since the mid-1970s, of the laissez-faire ideology that prevailed in the Gilded Age, roughly the 1870s through the 1910s. It's no coincidence that this laissez-faire revival - an all-out assault on government regulation - has unfolded over the very period in which inequality has soared to levels not seen since the Gilded Age. History tells us that in periods when protective governmental institutions are weak, irresponsible companies tend to abuse their economic freedom in ways that harm ordinary workers and consumers. The victims are often less affluent citizens who lack the power either to protect themselves from harm or to hold companies accountable in the courts. We are in such a period today. The laissez-faire revival of the past 35 years was no accident. The protective statutes and liberal common-law doctrines of the late 1960s and early 1970s - what can be called the Public Interest Era - had a profound impact in such areas as occupational safety and health, environmental protection, consumer finance and the safety of food, drugs and consumer products. This legislative and judicial activism placed far more constraints on the economic freedom of corporate America than had any legal regime preceding it. McGarity concludes: But Mr. Obama's failure to examine (or even mention) the laissez-faire revival was a missed opportunity. Deregulation may not be the central cause of the soaring inequality of recent decades, but it has certainly magnified its consequences, making it ever more difficult for workers and consumers to resist the rapacious predations of abusive employers and companies. The weakening of what used to be the great American middle class cannot be understood without also considering the embrace free-market theology. By omitting this critical factor in the rise of inequality, Mr. Obama left unchallenged the argument, recited by business like a mantra, that regulation and economic expansion are inherently in tension. Sadly, the crises resulting from deregulation will almost certainly continue until political forces realign themselves and a new social bargain is struck under which the business community's economic freedoms are once again constrained by a government that is more willing to impose greater responsibilities on powerful economic actors and a legal system that is capable of holding them accountable for the harm that they cause. Until then, a crucial check on the seemingly inexorable advance of economic inequality will be missing. Read the entire piece here. Mon, 09 Dec 2013 12:09:52 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D855D165-E474-3FCE-41DCE0E133A08392 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D855D165-E474-3FCE-41DCE0E133A08392 Late last month, the Center for Progressive Reform revealed that the Maryland Department of the Environment (MDE) waives pollution permit application fees for concentrated animal feeding operations (CAFOs) in the state, and that the agency is far behind in processing such applications. Now we're able to put a number on MDE's decision: MDE is waiving $400,000 in application fees this year alone. And what might it do with that money it's choosing to leave on the table for some reason? It could speed up its delayed permitting process, for one thing. The CPR report also found that MDE has not registered nearly 30 percent of these farms since the program began three years ago - in great measure because of the backlog in processing permits. Those permits are the best way to limit pollution from large farms, an effort that is absolutely critical to Maryland's effort to comply with the Chesapeake Bay's "pollution diet," or TMDL. The CAFO program was designed to be self-supporting. The idea was that the agency would collect modest fees from polluters (ranging from $120 to $1,200, depending on their size) and use that money to pay for the necessary permit writers and inspectors. By waiving the fees, MDE has shifted the responsibility of funding its program away from the polluter and instead relies on taxpayer funds. So in addition to paying a fee for their driver's licenses, car registrations, and fishing permits in the Bay, Free State taxpayers also get to pick up the tab for pollution permits for large industrial chicken operations. This morning, CPR President Rena Steinzor and I sent Robert Summers, Secretary of MDE, a letter urging MDE to stop waiving fees. (Read the full text of the letter here). Thu, 05 Dec 2013 16:44:12 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C4B7A863-F511-88F9-82E993B60E8D0CDE http://www.progressivereform.org/CPRBlog.cfm?idBlog=C4B7A863-F511-88F9-82E993B60E8D0CDE Efforts to hold private companies responsible for their contribution to climate change just took a big step forward, thanks to researcher Rick Heede. For the past eight years, Heede has painstakingly compiled the historical contribution of fossil fuel companies to today's concentrations of greenhouse gases. According to Heede's study "Tracing anthropogenic carbon dioxide and methane emissions to fossil fuel and cement producers, 1854 - 2010," which was published in Climatic Change, just 90 enterprises have accounted for over sixty percent of total industrial carbon dioxide and methane emissions. And just five private oil companies-- ChevronTexaco, ExxonMobil, BP, Shell and ConocoPhillips - have accounted for more than 12 percent of such emissions. This data is a potential game-changer in how we think of responsibility for climate change. The fossil fuel industry would like us to believe that we are all equally culpable every time we turn on an ignition or a light bulb. But we are not all equally responsible for decisions that have led to climate change - and we certainly have not all benefited from climate change the same way that the five oil companies have. In addition, several of the top emissions contributors actively promoted climate change denial campaigns. This data is legally significant as well because it gives courts a fair and defensible way for allocating responsibility for damages caused by climate change. Courts need no longer fear that it would be impossible to untangle the private sector's historical contributions to climate change or unfair to make oil companies, for example, pay for all climate-related damages. A clear formula now exists for allocating at least a significant percentage of the costs of climate change to those companies that benefited most from the public nuisance created by their emissions. . Take, for example, the costs of moving the Inuit village of Kivalina, which attempted to sue several of the top polluters for the anticipated costs of relocating their village as a result of climate change. Those costs could now be allocated to the major fossil fuel companies based on their historical contributions to the problem. Tue, 26 Nov 2013 12:26:00 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9571E4DE-EB05-C8DC-9BC39306A6CCED17 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9571E4DE-EB05-C8DC-9BC39306A6CCED17 It's not easy to stare into the eyes of a dying man. But that is what David Michaels, the head of the Occupational Safety and Health Administration (OSHA), wants you to do. A video called, "Deadly Dust," featured on OSHA's website, introduces Bill Ellis, a retired painter and sandblaster. After years of exposure to fine particles of blasted rock, he developed a respiratory disease called silicosis and died, leaving behind his wife, children, and grandchildren. Ellis's final months were painful. For a silicosis patient, just drawing breath is an ordeal - like sucking air through a straw. Thousands of laborers are exposed to the tiny stone particles, called silica, that killed Ellis. Any time workers blast sandstone, saw concrete, or cut brick, that dust is in the air. Because of the broad danger and the availability of relatively inexpensive protective gear, OSHA has released proposed rules updating worker safety standards for silica. The current rules have not been revised in over forty years. The proposal would lower the permissible exposure limit (PEL) of silica dust from 100-250 micrograms per cubic meter of air to 50 micrograms. The rule could save nearly 700 lives and prevent 1,600 new cases of silicosis each year. After including costs of implementation, average net benefits are estimated at $1.8 to $7.5 billion per year. The potential benefits of the rule are truly remarkable. The result seems like a dream situation, where a government agency can protect people and save money. Isn't that what regulatory agencies are supposed to do? Tue, 26 Nov 2013 09:46:47 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=94E03BEA-EFB1-697A-22B8C050D9AD32AF http://www.progressivereform.org/CPRBlog.cfm?idBlog=94E03BEA-EFB1-697A-22B8C050D9AD32AF I've spent a lot of time and energy talking about the need to adapt to climate change, but I've also become increasingly uneasy about "adaptation" as a way to think about the situation. One of the things I don't like about the term "adaptation" is that it suggests that we actually can, at some expense, restore ourselves to the same position we would have been in without climate change. For any given amount of climate change, we can do things that decrease the resulting harms (at a cost), but we can't eliminate those harms. Adapting to climate change is like "adapting" to a serious chronic disease - you can get by, with luck, but it's still not like being healthy. But there's also an important conceptual issue. The idea of adaptation assumes that the world will go along more or less as it always has, except that we'll take some specific actions due to climate change to neutralize its effects. This makes sense if we think global warming is just a marginal change. But given our current trajectory, climate change, adaptation, and mitigation may go beyond marginal impacts. Climate change may well have wide societal effects, and mitigation efforts themselves could be major enough to shift the economy. Moreover, both mitigation efforts and actions to address climate-based risks will have environmental impacts of their own. "Adaptation" suggests a marginal quality to climate change that may be quite misleading. Tue, 26 Nov 2013 08:53:17 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=94E61D30-F408-C077-2BBF11C23A483D94 http://www.progressivereform.org/CPRBlog.cfm?idBlog=94E61D30-F408-C077-2BBF11C23A483D94 When it comes to OIRA's antiregulatory meddling, the Federal Aviation Administration's (FAA) pilot fatigue rule provides as textbook an example as you could ask for. Following Congress's instruction that the rule be based on the best available science regarding human sleep patterns, the agency drafted a rule that set minimum rest standards for all commercial pilots. But, the rule couldn't take effect without the White House's Office of Information and Regulatory Affairs' (OIRA) review and final approval. After more than four months, the rule that emerged from the OIRA review gauntlet had been significantly weakened. The minimum rest standards now applied only to commercial passengerpilots, while commercial cargo pilots were completely exempted. The change was based not on sleep science, as Congress mandated. What's the justification? Fatigue generally affects all pilots the same, no matter what they happen to be hauling behind them. Against logic, OIRA justified the changes on the basis of an irrelevant, and arguably illegal, cost-benefit analysis: According to OIRA, the benefits of protecting cargo from fatigue-induced plane crashes, unlike the benefits of protecting passengers, simply did not justify the costs of abiding by the minimum rest standards. Not coincidentally, during the months-long review, a parade of cargo airline industry representatives marched through OIRA's doors arguing for the change, relying on this very same cost-benefit analysis argument. The story above is a familiar one, and most accounts of OIRA interference typically stop with the weakened and delayed final rule's issuance. In reality, though, OIRA interference usually sets off a chain reaction of negative consequences - in the form of real harms to real people and to the effective functioning of our system of governance - that are worth taking a close look at. Indeed, the FAA's pilot fatigue rule provides a glaring example of these negative consequences, as several recent developments have demonstrated. Most dramatically, this past August a UPS cargo plane crashed while attempting an early morning landing at Birmingham - Shuttlesworth International Airport in Alabama, killing both crewmembers on board. In addition to the two fatalities, all of the cargo on the plane was destroyed in the crash, and some homes located near the airport were also allegedly damaged. The National Transportation Safety Board (NTSB) expects that its investigation into this incident will take several months to complete. At this point, however, the NTSB has found no evidence of mechanical failure and is now looking into whether the crash was a result of pilot error - including whether pilot fatigue was a contributing factor. The incident does provide a vivid illustration of what OIRA has put at stake with its meddling. It also provides a cautionary warning of the kinds of needless tragedies we can potentially expect if commercial cargo pilots remain exempted from the FAA's minimum rest standards. Thu, 21 Nov 2013 09:03:48 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7AF927FB-97E8-BAFB-C30EA862B65E6930 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7AF927FB-97E8-BAFB-C30EA862B65E6930 Lately, press releases from the Maryland Department of Agriculture read like a broken record: MDA Withdraws Phosphorus Management Tool Regulations; Department to Meet with Stakeholders and Resubmit Regulations -- August 26, 2013 MDA Withdraws Phosphorus Management Tool Regulations; Department to Consider Comments and Resubmit Regulations --November 15, 2013 The second headline is from this past Friday when MDA withdrew a proposed regulation aimed at cleaning up the Chesapeake Bay by restricting the use of manure to fertilize crops. Manure is full of phosphorus, one of the nutrients choking the Bay. Indeed, manure runoff accounts for 26 percent of the phosphorus in the estuary. The proposed "phosphorus management tool," developed at the University of Maryland, would have helped determine which fields were over-saturated with the nutrient. If the soil contained too much phosphorus, the farmer could not apply manure to fertilize that field. As the agency's press releases show, this is the second time MDA has pulled back its attempt to limit manure usage. An emergency regulation that was supposed to have gone into effect this fall was withdrawn in late August after the farm lobby complained that it could cripple the state's poultry industry. MDA withdrew the rule this time after agricultural groups once again complained of its economic impact. The abandonment of the manure-management tool comes at the same time that a new CPR report warns that the state's regulation of industrial animal farms is lagging. According to CPR President Rena Steinzor, the two are closely connected. Thu, 21 Nov 2013 08:56:03 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7AF1508A-BB89-0BF9-E440A407624CABA0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7AF1508A-BB89-0BF9-E440A407624CABA0 When we all sit down for Thanksgiving dinner next week, we hope that the food we are feeding our families is wholesome and that the workers who produce it are safe. Thanks to the U.S. Department of Agriculture (USDA), ever the mindless booster of corporate profits, that turkey at the center of the table already disappoints both expectations, and if USDA has its way, matters are about to get much worse. Hiding behind disingenuous promises to "modernize" the food safety system, USDA has decided to pull federal food inspectors off the line at poultry processing plants across the nation. No new preventative measures to ensure that poultry is free of salmonella would happen. And already crowded, bloody, stinking lines would speed up dramatically - to as many as 175 birds per minute, or three birds/second. Workers who suffer grave ergonomic injuries from the repetitive motions of hanging, cutting, and packing the birds would endure conditions that are two or three times worse than the status quo. The consequences of USDA's de-regulatory scheme are well documented. Back in 2001, the Government Accountability Office (GAO) found significant food safety concerns in pilot plants authorized to test the new system and just this past summer slammed the USDA's data in justifying the program. The Agency is using data cherry-picked from two-year snapshots over a 15-year period of the piloted system to justify the program and relying on old and inaccurate economic analysis. Wed, 20 Nov 2013 17:15:11 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=77945895-DBA9-0015-B09EA607086903B0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=77945895-DBA9-0015-B09EA607086903B0 Yesterday, Catherine Jones, CPR's Operations and Finance Manager, received Public Citizen's 11th annual Phyllis McCarthy Public Service Award, in recognition of her contributions to the organization and the nonprofit community. Catherine's been with CPR for eight of our eleven years, and she's been a lynchpin of the organization for most of that time. CPR began small - first as an idea shared by a group of scholars around a restaurant table - then morphed into a somewhat more formal gathering of scholars, and then over the course of a few years grew out of its "garage band" phase into the full-fledged organization that's now making a real difference. Anyone who's ever built an organization of any type - a nonprofit, a small business, a theater company, you name it - will recognize the challenges inherent in organizational evolution of that sort. Catherine made - and makes - it possible. She figured out how to navigate the challenges of tax filings and unemployment, she built the scaffolding for our fundraising efforts, she devised ways for us to function as the virtual organization that we are with staffers scattered across the region and scholars across the nation. As CPR Executive Director Jake Caldwell said in nominating her for the award, "Catherine handles every such task with an incredible amount of good humor, patience and persistence, giving our virtual group a strong sense of cohesiveness and structure.... Catherine is the foundation that enables all of us to work at our full capacity at CPR. She truly amplifies our effectiveness and voice with her talents and support. And because she shares our values, we also benefit from her enthusiasm and sense of purpose." The award is named for Phyllis McCarthy, a 24-year employee of Public Citizen's Health Research Group, who passed away in November 2002. She worked for 24 years as a managing editor and office manager, playing an integral part in the development and preparation of publications, reports, medical journal articles and petitions to government agencies. The award recognizes individuals who have worked long and hard for a public interest group, performing critical functions as did McCarthy, but who have not received public credit commensurate with their contributions. Catherine said in her remarks accepting the award that "service to a worthy cause is its own reward." She's exactly right about that, of course, and she brings to the task a palpable sense of joy and fulfillment that makes everyone else's job more fulfilling, too. We're all incredibly proud of her, and grateful to Public Citizen for recognizing her outstanding work. Wed, 20 Nov 2013 10:54:32 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7638216A-DE80-0E7E-7A6C4E9795DD96C5 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7638216A-DE80-0E7E-7A6C4E9795DD96C5 Maryland's effort to limit pollution from massive industrial animal farms in the state is falling behind. A new CPR Issue Alert finds that the state has not registered 26 percent of Maryland's concentrated animal feeding operations (CAFOs) and Maryland animal feeding operations (MAFOs), missing out on tens of thousands of pounds of pollution reduction in the Chesapeake Bay. The Chesapeake Bay is in trouble. Years of half-hearted interstate efforts to check polluting emissions and restore the nation's largest estuary have failed. The Environmental Protection Agency's Total Maximum Daily Load (TMDL) plan for the Bay represents the Chesapeake's last, best chance of recovery. The TMDL requires all major polluting sectors - including massive industrial farms - to reduce their discharges into the Bay. Maryland is home to at least 588 of these massive animal farms, known as concentrated animal feeding operations (CAFOs) and state-regulated Maryland animal feeding operations (MAFOs). To meet the TMDL, Maryland has committed to eliminating the discharge of 248,000 pounds-per-year of nitrogen and 41,000 pounds-per-year of phosphorus from all animal feeding operations in the state by 2025. Meeting this goal will require robust government oversight. Three years into the program, however, and Maryland has fallen far behind in permitting these facilities, missing a crucial opportunity to reduce pollution to meet the TMDL. Issuing permits is the only way to compel these facilities to follow certain best practices to limit pollutants flowing into the Bay. Specifically, the CPR Issue Alert reveals: The permit writers are behind: 87 out of a total of 506 complete applications have yet to be processed, leaving operators with no clear requirements to reduce pollution and MDE with no enforceable conditions. The CAFO program is understaffed, relying on three permit writers and the same number of inspectors. A loss of even one employee can cut the program's productivity in half, as occurred in 2012. Many of the applications MDE receives are incomplete: 65 of 540 CAFOs lack the required comprehensive nutrient management plans (CNMPs) that dictate how the facility is to operate to protect water quality. MDE has so far given the industry a free ride: It has yet to collect application and annual fees for CAFO permits, which are $120 for small CAFOs, $600 for medium CAFOs, and $1,200 for large CAFOs. Collecting these fees would ensure that the program has sufficient resources to hire additional permit writers and inspectors. Wed, 20 Nov 2013 10:20:32 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7618DA6C-D37D-FBD3-76C4A0BCF5D6F718 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7618DA6C-D37D-FBD3-76C4A0BCF5D6F718 The Food and Drug Administration recently announced its tentative determination that most of the trans fatty acids in our diets - specifically, partially hydrogenated oils (PHOs) - are not "generally recognized as safe" within the meaning of the Food, Drug, and Cosmetic Act, and thus must be regulated as food additives. If the FDA finalizes this determination, then food manufacturers would need to obtain the approval of the FDA before selling PHOs in any food or as food ingredients. Approval would then depend, in turn, on a determination by the FDA that PHOs were safe after all. In this way, a final determination by the FDA that PHOs are not "generally recognized as safe" would effectively amount to a ban on their use in food. The FDA's proposed finding is a huge deal for public health. The agency estimates that eliminating PHOs from the food supply could prevent as many as 7,000 fatal heart attacks each year, plus up to 20,000 nonfatal heart attacks. Numerous scientific studies and expert review panels have drawn a link between dietary intake of trans fatty acids, blood cholesterol levels, and coronary heart disease. Additional studies have found that consumption of trans fatty acids may have other adverse health effects as well, perhaps even including an increased risk of diabetes. There will be plenty of scrutiny of the FDA's proposal in the weeks to come. For now, I want to point out one aspect of the proposal that might not be obvious. Although the determination of whether PHOs are "generally recognized as safe" is a strictly scientific one, one that demands "a reasonable certainty in the minds of competent scientists that the substance is not harmful under the intended conditions of use," the FDA nevertheless appended a cost-benefit report to its preliminary scientific finding. Mon, 18 Nov 2013 09:53:03 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6BB2F6CE-C63C-D5DB-293E60E8D77D10C1 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6BB2F6CE-C63C-D5DB-293E60E8D77D10C1 CPR Member Scholars Rena Steinzor Lisa Heinzerling, Tom McGarity, Sidney Shapiro, and I submitted comments to the FDA on two food safety rules - one on raw produce, and one on preventive controls for human food (which applies to food manufacturers and processors). In separate blogs posted today, we address issues of regulatory design and how the costs of both these rules would be significantly smaller than suggested in the FDA's economic analyses. Here, we explain why these rules offer much greater benefits than those presented in the agency's analyses. (The analyses for both rules essentially rely on the same benefits methodology.) The FDA estimates that the produce rule would prevent about 1.75 million foodborne illnesses, representing an annual benefit to society of $1.04 billion. For the preventive controls rule, the FDA calculates the annual burden of illnesses attributed to processed foods - nearly one million illnesses, which cost society about $2 billion - without estimating how effective the rule would be in reducing them (presumably because it is difficult to predict how each facility would design and implement its own unique food safety plan). As we explain in our comments, the Food Safety Modernization Act (FSMA) does not call for the use of a "cost-benefit standard" that involves quantifying and monetizing all the potential benefits of the proposed rules (an inherently flawed task) and finding the optimal balance between costs and benefits. Instead, given the relevant statutory mandates, the FDA should base the rules' standards on the best available methods for preventing food safety hazards, while ensuring that the overall costs remain reasonable. Nevertheless, to the extent that the FDA continues to use these economic analyses, either as a decisionmaking tool or as a way of expressing the rules' impacts, they should at least be made as comprehensive and accurate as possible. Thu, 14 Nov 2013 19:37:11 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=59304AEC-AD60-E7FD-B7AB833357E13771 http://www.progressivereform.org/CPRBlog.cfm?idBlog=59304AEC-AD60-E7FD-B7AB833357E13771 One of the healthiest things a person can do is to eat lots of fruits and vegetables. Unless they're contaminated with dangerous pathogens, that is. Contaminated produce has been responsible for an alarming number of deaths and illnesses in recent years, from Listeria-tainted cantaloupes that killed up to 43 people in 2011 to a Cyclospora outbreak linked to salad mix and cilantro that sickened 631 people in 25 states this past summer. For this reason, the Food Safety Modernization Act (FSMA) directed the Food and Drug Administration (FDA) to set standards to ensure the safety of the fruits and vegetables in our food supply. The FDA's proposed rule on produce safety would address some of the most likely sources of contamination on farms, including tools and equipment, water used in agricultural activities, and worker health and hygiene. At the Center for Progressive Reform we submitted comments to the FDA, urging the agency to issue the final produce rule as soon as possible, in its strongest, most protective form. We focused most of our attention on the economic analysis that accompanied the FDA's proposal. The FDA found that the rule is easily justified on economic grounds, estimating annual benefits of $1.04 billion - representing 1.75 million avoided illnesses in the United States - and annual domestic costs of $460 million. But once we looked behind these numbers, it became clear that the rule's benefits will be even more significant, and its costs considerably smaller, than the FDA suggests. The agency's estimates are built on flawed assumptions, and those flaws were greatly exacerbated by the White House Office of Information and Regulatory Affairs (OIRA) during the 13 months that it spent marking up the proposal and delaying its release. By misrepresenting the rule's impacts, these distortions help to fuel needless negativity towards the rule, from members of Congress, produce-industry associations, and farmers themselves. Below are some examples of how the analysis overestimates the rule's costs. Thu, 14 Nov 2013 19:23:42 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5923FFE4-A07F-817A-BC0CDC70DBB7EE0B http://www.progressivereform.org/CPRBlog.cfm?idBlog=5923FFE4-A07F-817A-BC0CDC70DBB7EE0B From frozen meals and spices to nutbutters and cheeses, processed foods have been responsible for an alarming number of outbreaks in recent years. The FDA's proposed rule on "preventive controls for human food" would require manufacturers, processors, and warehouses to design a written food safety plan tailored to each facility's products and operations. (The rule would also apply to mixed-type facilities that conduct processing activities on a farm.) In general, facilities would have to identify the potential hazards in their processes and then implement controls to minimize or prevent them. This system - Hazard Analysis and Risk-Based Preventive Controls, or HARPC - is intended to address microbiological, chemical, physical, and radiological hazards in food processing, as well as undeclared allergens. CPR Member Scholars Rena Steinzor, Lisa Heinzerling, Sidney Shapiro, Policy Analyst Michael Patoka and I submitted comments to the FDA, urging the agency to issue the final rule as soon as possible and to select the options that are most protective of public health. FDA Must Restore the Essential Provisions Eliminated by OIRA During the 13 months the rule spent under review at the White House, the Office of Information and Regulatory Affairs (OIRA) eliminated a number of crucial provisions that the FDA had originally proposed, including requirements for: (1) Certain sanitation practices; (2) Food-safety training for employees; (3) Review of consumer complaints; (4) Environmental monitoring for pathogens (testing of locations throughout the facility); (5) Finished product testing; (6) Supplier approval and verification programs; and (7) Review of the records associated with these activities. In the gutted version that emerged from OIRA's review, the FDA clarified that it is not proposing any of these measures at this time but is instead just requesting comment on them. Meanwhile, all the information prepared by the agency to explain and justify these requirements was relegated to an appendix at the back of the preamble. Thu, 14 Nov 2013 19:05:31 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=59137EFA-FFDC-9147-8D9F29D37F1A730B http://www.progressivereform.org/CPRBlog.cfm?idBlog=59137EFA-FFDC-9147-8D9F29D37F1A730B We have a problem in New York City: We generate more than 30,000 tons of waste each day. Roughly one third of that waste is household trash, and the daunting task of collecting garbage from New York City's three million households falls to 7,000 workers from the NYC Department of Sanitation. They are, in the words of artist Mierle Laderman Ukeles, "keeping New York City alive." All of NYC's waste is shipped out of state for disposal. But first, the city must consolidate the garbage at one of 58 waste transfer stations. In addition to the overpowering odors the trash itself produces, these stations generate a constant stream of truck traffic, air pollution, noise pollution, and safety issues. So, of course, no one wants to live near them. Thus, it may come as no surprise that most of NYC's waste transfer stations are concentrated in poor and minority communities in the Bronx, Queens, and Brooklyn. In 1996, the New York City Environmental Justice Alliance helped form the Organization of Waterfront Neighborhoods to address this injustice, and over the next decade these groups worked with hundreds of concerned citizens, ultimately culminating in the passage of the City's 2006 Solid Waste Management Plan. Although the plan laid the foundation for a more equitable distribution of these facilities, attempts to locate a waste transfer station in Manhattan have been met with litigation and outrage. Wed, 13 Nov 2013 16:06:26 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5349221D-D56C-B458-DF35813F62EACC2C http://www.progressivereform.org/CPRBlog.cfm?idBlog=5349221D-D56C-B458-DF35813F62EACC2C Today, Center for Progressive Reform Member Scholar and law professor at the University of Texas School of Law, Wendy Wagner will testify at a House Subcommittee on Energy and the Environment Hearing entitled, "S. 1009, Chemical Safety Improvement Act." Wagner's testimony can be read in full here. According to her testimony: My testimony will focus on the various good science provisions in S.1009 and how they are likely to impact EPA's use of science. I will make the following points in my remarks: 1. The Senate bill contains dozens of unprecedented requirements that limit the scientific evidence EPA can consider when developing regulations and how this evidence can be used. Yet despite the detailed level of scientific prescription in the Bill, it is not clear what problem the Bill is trying to fix. While there have been many failures associated with the Toxic Substances Control Act (TSCA) over the years, they are generally not connected to EPA's failure to make use of the best available science when promulgating regulations. 2. By contrast, there is broad consensus that the primary problem crippling EPA's regulatory efforts under TSCA is the dearth of information about chemicals. The Senate Bill not only appears oblivious to the scarcity of toxicity and related information on most chemicals, but may aggravate the problem by preventing EPA from considering research that has the potential to inform EPA's assessments in scientifically acceptable ways. 3. The various good science requirements and procedures are also loaded with ambiguities, creating numerous "attachment points" that present opportunities for a steady stream of legal challenges to EPA's rules. If history is any guide, entities with the most at stake (e.g., manufacturers of the least effective and least safe chemicals) will use these attachment points to delay EPA's implementation or force EPA into negotiations before, during, or after a rule is published. Senate Bill 1009 also lacks enforceable legislative deadlines to counteract this inevitable delay for most provisions. The Bill also makes fails to provide procedural protections that will prevent or at least illuminate these compromises that fall outside the formal processes and out of the public eye. 4. Protracted delays in implementation, with corresponding, potentially high costs to protection of the public health, seem inevitable from the cumulative problems with the good science provisions in S. 1009. 5. Chemical regulation will be effective only if it provides incentives for the manufacture of safer and more effective chemicals. The Senate Bill does not provide these incentives. Wed, 13 Nov 2013 08:28:46 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=51A622D8-D3D6-123F-DAB93E7060D7D1E8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=51A622D8-D3D6-123F-DAB93E7060D7D1E8 Today, Center for Progressive Reform board member and University of Texas School of Law professor Thomas O. McGarity will testify at aHearing hosted by the Senate Judiciary Committee entitled, "Justice Delayed II: the Impact of Nonrule RuleMakiing in Auto Safey and Mental Health." McGarity's testimony can be read in full here. According to the testimony, some possible solutions to the problems created by nonrule rulemaking include: Agencies that are conscientiously committed to carrying out their statutory missions will continue to employ informal rulemaking with all of its burdensome accoutrements if they have no other alternative. For example, EPA's statutes typically require it to use informal rulemaking to fill in the necessary implementation details, and they often specify precise deadlines for EPA action. Its heavy rulemaking output during the past few years is a testament to the ability of a very determined agency to employ even a broken system to achieve important statutory goals. But those efforts consumed scarce resources that are unlikely to be available in such quantities in the future. The agency has on many occasions made policy through less formal devices like guidance documents that are not subject to many of the requirements that afflict informal rulemaking. And it will no doubt continue to do so as the resources available to the agency dwindle. Thu, 07 Nov 2013 10:12:24 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=331EE6D9-992F-CD2E-97089ED6EA2D386B http://www.progressivereform.org/CPRBlog.cfm?idBlog=331EE6D9-992F-CD2E-97089ED6EA2D386B Tomorrow, a subcommittee of the Senate Judiciary Committee chaired by Senator Richard Blumenthal (D. Connecticut) hosts a Hearing on the consequences of excessive regulatory "ossification" entitled, "Justice Delayed II: The Impact of Nonrule Rulemaking on Auto Safety and Mental Health." I will be testifying at that hearing on the effects of agencies' moving to more informal rule-making procedures as a way to avoid the burdensome analytical and internal review requirements that currently make it so difficult for them to promulgate rules. During the 1980s and 1990s, the rulemaking process became increasingly rigid and cumbersome as presidents, courts and Congress added an assortment of analytical requirements to the simple rulemaking model and as evolving judicial doctrines obliged agencies to take great pains to ensure that the technical bases for rules were capable of withstanding judicial scrutiny under what is now called the "hard look" doctrine of judicial review. More than twenty years ago, Professor E. Donald Elliott, himself a former General Counsel of the Environmental Protection Agency, referred to this phenomenon as the "ossification" of the rulemaking process, and I wrote an article based on my study for the Carnegie Commission describing the ossification phenomenon, identifying some of its causes, and suggesting some ways to "de-ossify" the rulemaking process. My 2012 article on "blood sport" rulemaking highlights many of the tactics that stakeholders now use for slowing down or influencing the outcome of high-stakes rulemaking proceedings, many of which are employed outside the APA's notice-and-comment process. Under the pressure of constant opposition from the regulated industries and with only sporadic countervailing pressure from beneficiaries of the regulated programs, statutory deadlines are missed, ambitious policy goals remain unachieved, and the protections envisioned by the authors of the statute gradually erode away. Along with many other scholars, I am convinced that the current rulemaking process is not merely ossified -- it is broken. Wed, 06 Nov 2013 08:44:16 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2DA7670B-99C2-8713-C4336D867BFF3C64 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2DA7670B-99C2-8713-C4336D867BFF3C64 Lois Alt is a 61-year-old grandmother who sued EPA in federal court arguing that her large chicken farming operation is exempt from Clean Water Act (CWA) permitting requirements. On October 23, the judge ruled in her favor in a decision that could mean that hundreds of other large industrial farming operations do not need permits. The case began when EPA found Ms. Alt in violation of the CWA for discharging without a permit. EPA ordered her to apply for one and informed her that, under the law, she could be subject to civil or criminal penalties. The agency later withdrew the notice, essentially mooting the case. Nevertheless, Judge Bailey felt compelled to rule on the merits. The facts are not disputed. Ventilation fans blow litter and manure out of Ms. Alt's eight chicken houses. Rainwater washes this pollution from the yard surrounding the chicken houses into Mudlick Run, a nearby stream, by means of "man-made ditches" (opinion, p.5). Normally, a concentrated animal feeding operation (CAFO) like Ms. Alt's must get a permit to discharge into surface waters. Congress added a provision to the CWA in 1987 excusing agricultural stormwater discharges from permitting requirements. EPA has construed this exemption as only covering areas in which manure was applied to land in accordance with specific guidelines. Judge Bailey's decision - that the discharge from Ms. Alt's farm fits under the CWA's agricultural stormwater exemption - would greatly extend the scope of the exemption. Tue, 05 Nov 2013 15:25:32 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=29F0A88C-9E72-9BD6-B78AE33F7CD0B471 http://www.progressivereform.org/CPRBlog.cfm?idBlog=29F0A88C-9E72-9BD6-B78AE33F7CD0B471 Since the Reagan Administration, federal agencies have been required by Executive Order to send their major rules to the White House's Office of Information and Regulatory Affairs (OIRA) for review before releasing them to the public. OIRA review consists of, among other things, ensuring that agencies subject their rules to cost-benefit analysis to make sure the dollar value of their costs to industry exceeds the dollar value of the benefits they confer on the public. It was no surprise under the Reagan administration - or more recently under the George W. Bush administration - that OIRA review served largely to delay and weaken rules. But you might be surprised to hear that the Obama administration's record on OIRA delays has been significantly worse than the George W. Bush administration's. A new report prepared by the Administrative Conference of the United States (ACUS) found that "in 2012, the average time for OIRA to complete reviews increased [from 51 days] to 79 days, and in the first half of 2013, the average review time was 140 days - nearly three times the average for the period from 1994 through 2011." The report went on to note that the number of rules languishing at OIRA for 6 months or a year or more has risen dramatically in the Obama administration. This is particularly disturbing, since Executive Order 12866, which governs OIRA review, sets a clear, mandatory 90 day deadline for review, with a one-time 30-day extension permitted in certain limited circumstances. According to the report: From 1994 through 2011, an average of fewer than 10 completed reviews per year (less than 2%) took more than six months; however, in the first half of 2013, 63 reviews (nearly 30%) took more than six months, and 27 (nearly 13%) took more than one year. Further, these statistics may understate the extent of the delays. According to senior employees in 11 departments and agencies (who were interviewed for this report anonymously and without indication of agency affiliation), OIRA has increasingly used "informal reviews" of rules prior to their formal submission [.] At CPR, we're glad to see ACUS focus on the important problem of OIRA delay, which we've commented on in the past. But many of us at CPR were disappointed to see that the report misses important causes of delay at OIRA and that many of the recommendations might continue or expand OIRA's interference in agency rulemakings in ways that were never authorized by Executive Order 12866. Yesterday, CPR President Rena Steinzor, Member Scholars Tom McGarity, Wendy Wagner, Sid Shapiro and Senior Analyst James Goodwin and I submitted comments highlighting some of the problems at OIRA that ACUS should seek to address in its report and subsequent list of recommendations. Tue, 05 Nov 2013 10:32:10 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=28E3C048-D004-BEAE-4F8ACA2A8CA56903 http://www.progressivereform.org/CPRBlog.cfm?idBlog=28E3C048-D004-BEAE-4F8ACA2A8CA56903 This week, it was reported that Senate Democrats plan to force a vote to confirm one judicial nominee to the D.C. Circuit Court of Appeals if Republican Senators continue to block the nominee's confirmation. Patricia Ann Millett, who has worked for Democratic and Republican administrations in the past, is the contested candidate. Although the circuit court has three vacancies, the Republicans oppose a vote because they say the D.C. Court of Appeals has too many judges. Senator Jefferson Sessions, for example, is quoted as saying about the court, "They have, by far, the lowest caseload per judge. They take the summers off." Other than this political rhetoric, there is nothing to back up this claim. The Republican's true objection is that, after the President fills the vacancies, the court will have more judges that will have been appointed by presidents who were Democrats than Republicans. But this is our constitutional system. If a party wins the presidency, the President gets to fill judicial vacancies and the Senate concurs unless the person nominated is not competent. From the time the President announced his nominations to the Court back in June, Republicans have kept up a steady stream of misinformation about the need to fill the court. First they claimed that filling the court vacancies would amount to "court-packing," a term that refers to an effort during the Roosevelt administration to add more judges to the Supreme Court -- not to eliminate existing seats, as the Republicans would like to do here. In addition, they were more than happy to fill the seats vacated during the Bush Administration. Now they claim that the D.C. Circuit does not need as many judges as it current has. Senator Grassley has crafted legislation to permanently eliminate seats on the circuit court to preclude the possibility that the President can fill the existing vacancies. In the past, however, Congress has determined how many judges are needed in each of the federal circuit courts based on recommendations of the non-partisan Federal Judicial Center, which studies caseloads and makes its recommendations based on available empirical evidence. This is why Chief Justice Roberts has asked Congress to fill the vacancies on the D.C. Circuit. As Chief Justice, he is the head of the Center and he is acting on its recommendations. In fact, the average caseload for the Court is up, from 119 cases in 2005 to 188 cases this year. The cases before the Court are also more complex than other circuits because it reviews cases involving complicated regulations adopted by agencies. It would be a shame if decisions about the number of judges in each circuit, one of the few remaining vestiges of non-partisanship left in Congress - were wiped out by Republican partisanship. Why are the Republicans talking through their hats? The answer lies in the D.C. Circuit's unique jurisdiction over environmental, health, safety and other regulations, which gives it a particularly important role in the federal judiciary. For years, the circuit court has had more judges appointed by Republican presidents than presidents who were Democrats. Now that President Obama has won reelection, and can change the balance, the Republicans are no longer willing to fill the vacancies that they were only to happy to fill when it was a Republican president who was choosing the nominees. The American people deserve better and are not falling for the Republicans' hot air. Editorials from local papers across the country have come out in support of filling the Court's remaining seats. Senator Grassley's own local paper the Daily Iowan notes: Unlike the attempted 1937court-packing power grab by Roosevelt, Obama is not seeking to create new seats on the Court of Appeals to tilt the court's partisan balance in his favor. Obama seeks only to fill judicial vacancies in accordance with his Constitutional job description.... Grassley argues that the court's relatively low caseload requires such a reduction in seats, but an April report from the nonpartisan Judicial Conference of the United States, a group led by Roberts, recommended keeping the number of judges on the D.C. court at 11. The actions and the rhetoric of Grassley and the rest of his Senate partisans smack ultimately of obstructionism. The argument that we should move seats from this circuit to other circuits because the Court is "not busy enough" is laughable at best and deeply cynical at worst. The Republican Senators simply cannot accept that their party lost the election, and they are prepared to stall judicial nominations until they win again, no matter the cost to the country or the Constitution. Wed, 30 Oct 2013 15:16:10 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0A941507-02DE-B872-BADAB0F3ADB1CA07 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0A941507-02DE-B872-BADAB0F3ADB1CA07 Congratulations to our friends at Earthjustice and their clients for a tremendous victory in federal district court today. Judge Reggie Walton (a George W. Bush appointee) ordered the Obama Administration to provide a schedule for regulating coal ash within the next 60 days. This epic battle now shifts back to the White House and Congress where nearly hysterical electric utilities that depend on coal-fired power plants will sweep in, aided by some very twisted economics from strong regulation's staunch nemesis, the Office of Information and Regulatory Affairs (OIRA). The coal ash crisis burst onto the national scene shortly before Christmas day, 2008, when the contents of an enormous impoundment containing coal-ash slurry from the Tennessee Valley Authority's (TVA) Kingston Fossil Fuel Plant poured into the Emory River. The proximate cause of the spill was the bursting of a poorly reinforced dike holding back a pit of sludge that towered 80 feet above the river and 40 feet above an adjacent road. The volume and force of the spill were so large that 1.1 billion gallons of the inky mess flowed across the river, inundating 300 acres of land in a layer four to five feet deep, uprooting trees, destroying three homes, and damaging dozens of others. Miraculously, no one was killed. The Kingston spill was the worst of its kind in U.S. history, but it was not the first, nor would it be the last. For a brief period of time, the catastrophe focused the nation's attention on the health and environmental risks posed by dumping coal ash in unlined pits in the ground euphemistically dubbed "surface impoundments." The slurry contained both fly and bottom ash from scrubbers that are mandatory on coal-fired plants. Because scrubbers trap fumes before they are emitted into ambient air, the fly-ash portion of the spill contained significantly more than the quota of toxic heavy metals that typically result from burning coal. Or, in other words, in an inevitable but ironic twist, the benefits to breathers were obtained at the expense of walkers and drinkers. The Kingston Spill had released around 2.6 million pounds of toxic pollutants into the Emory River. By way of comparison, all of the other power plants in the United States released just over 2 million pounds of toxic pollutants during all of 2007. Prominent national environmental groups demanded greater protection from Congress and the Environmental Protection Agency (EPA), both of which had long skittered away from confronting the problem in the face of unyielding resistance by electrical utilities. Any hint of regulatory intervention that would compel the safer disposal of coal ash and the reinforcement of old, poorly designed dumps was pounced on by industry and carelessly maintained coal-ash dumps remain the status quo. Enter OIRA. Its review of EPA's proposal to regulate coal ash involved 33 meetings with industry representatives who argued that the most effective regulatory option proposed by EPA - requiring coal ash that is not recycled to go to lined pits with leak detection systems--would impose a ruinous "stigma" on the beneficial recycling of coal ash. EPA insisted that in decades of implementing the Resource Conservation and Re­covery Act, the agency had never observed such an effect. Nevertheless, the revised cost-benefit analysis that emerged from OIRA review predicted that a stigma effect would result in $233.5 billion in "nega­tive benefits" (i.e., costs) to society. Far weaker regu­latory alternatives that would treat coal ash as if it was no more dangerous than ordinary household garbage were thus presented as the only cost-effective options. We can only hope that Judge Walton's deadline and a Congress preoccupied with preventing each other from ruining the nation's economy will leave this issue to be resolved by the experts at EPA. Wishful thinking, to be sure. Stay tuned. Tue, 29 Oct 2013 17:01:59 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=05CE857A-CCA0-D886-35E46B536C9396BD http://www.progressivereform.org/CPRBlog.cfm?idBlog=05CE857A-CCA0-D886-35E46B536C9396BD In the United States, the framework for safeguarding people and the environment against the dangers of toxic chemicals comprises three mutually reinforcing legal systems: federal regulation, state and federal civil justice systems, and state regulation. Each part of the framework however, has been substantially weakened - the civil justice systems by years of tort "reform," and federal and state regulatory systems by outdated laws and an ongoing campaign by industry and its allies against protective regulation. Congress is now considering competing bills to fix one part of this framework - the Toxic Substances Control Act (TSCA), the principal statute governing federal regulation of toxic chemicals. The two bills - the more protective Safer Chemical Act (SCA) and the industry-backed Chemical Safety Improvements Act (CSIA) - both fall short of what is needed to fix TSCA, albeit to a widely varying degree - while weakening the civil justice systems and state regulation even more. To be sure, TSCA reform is overdue. The statute's inadequate data-gathering provisions have prevented the Environmental Protection Agency (EPA) - the agency charged with implementing TSCA - from obtaining critical information on the potential hazards of the tens of thousands of chemicals currently on the market. And even when the EPA is able to confirm that a chemical is dangerous, TSCA provides the agency with little authority to take meaningful action to protect against the health or environmental risks the substance poses. While neither of the two leading TSCA reform proposals - the SCA and the CSIA - do enough to strengthen federal regulatory public protections against toxic chemicals, the CSIA would take a significant step backwards by effectively eliminating the two other parts of the framework - the state and federal civil justice systems and state regulation. The CSIA would preempt state and federal tort law by granting partial immunity to industrial chemical manufacturers and users whose activities have been deemed "safe" by the EPA. The CSIA would also broadly preempt state efforts to request that manufacturers supply data regarding their chemicals and prohibit state and local governments from regulating a particular chemical in any way once the EPA has prioritized that chemical for further assessment. Center for Progressive Reform Member Scholars Emily Hammond, Thomas McGarity, Wendy Wagner and CPR Senior Policy Analyst James Goodwin and I have written a CPR Issue Alert that seeks to explain how each part of the three-part protective framework contributes to reducing the risks posed by chemicals, and we recommend ways that TSCA reform can strengthen all three parts of the protective framework. Mon, 28 Oct 2013 11:02:39 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FF5F6622-0FFF-E766-60D951A7E2C60F0C http://www.progressivereform.org/CPRBlog.cfm?idBlog=FF5F6622-0FFF-E766-60D951A7E2C60F0C Last Friday, the FDA posted the revisions the White House Office of Information and Regulatory Affairs (OIRA) made to two food safety rules drafted by the agency two years ago. The proposed rules were issued under the Food Safety and Modernization Act, which Congress passed in the wake of widespread food safety disasters. As we've mentioned in this space before, OIRA is the regulatory review body within the White House that frequently holds onto agency rules for longer than the 120-day limit set by Executive Order 12866, often mangling and weakening the protections developed by agencies at the behest of regulated industries. For one of these rules, on the Foreign Supplier Verification Program (FSVP), OIRA didn't loosen its grip for a year and eight months, giving it plenty of time to tinker around with the FDA's proposal behind closed doors. According to a memo accompanying each of the recent releases, the FDA was prepared to post the "redlined" documents showing OIRA's revisions on August 15 of this year, and that is also the date the documents were supposedly "received" in the electronic rulemaking docket. So, why did they come out only last week? We may never know the answer, but we can finally see how the White House chopped and diced through the FSVP rule in ways that make it less protective of consumers and more appealing to food corporations. The Importance of the FSVP Rule This rule is intended to strengthen oversight of imported foods, which for the most part fall right through the cracks in our food safety system and land directly on our plates. Over 15 percent of the food we eat is imported, including over 50 percent of our fresh fruit, 20 percent of our fresh vegetables, and 61 percent of our honey. In 2011, 10.5 million unique food products were brought into the country, but the resource-strapped FDA was able to inspect just 2 percent of all imports and only 0.4 percent of foreign food facilities. Much of this food is produced in developing countries with inadequate regulatory systems, where unsanitary practices are common. This year alone, we've seen a 162-person outbreak of Hepatitis A caused by pomegranate seeds from Turkey, an 84-person Salmonella outbreak caused by cucumbers from Mexico, and a 643-person Cyclospora outbreak linked to imported salad mix in two states and to imported cilantro in another. The FSVP rule would make importers responsible for verifying that their foreign suppliers are providing the same level of public health protection that is required of domestic food producers. Importers must perform certain verification activities to ensure hazards are being adequately controlled. Beyond that, they must investigate and take corrective actions when problems arise. Companies that import foods without an adequate FSVP would face penalties. Below is a summary of OIRA's changes to the rule, compared to the FDA's original draft. Fri, 25 Oct 2013 12:45:15 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F04A33D7-FB5F-A47D-AFC16B73FBB7F80D http://www.progressivereform.org/CPRBlog.cfm?idBlog=F04A33D7-FB5F-A47D-AFC16B73FBB7F80D Today OSHA announced two new web-based resources designed to help employers eliminate chemical hazards in the workplace. Both the toolkit for identifying less-hazardous substitutes and the annotated exposure limits table are useful informational resources designed to promote voluntary action by conscientious employers and informed demands by workers and their advocates. But OSHA has to deal with both the "high road" and the "low road" employers, so using these new tools in enforcement proceedings is a necessary adjunct to voluntary employer efforts. With some enterprising work by enforcement officials and strong support from the Solicitor of Labor the tools could be the basis for a new wave of enforcement under the OSH Act's General Duty Clause. As OSHA freely admits, the Permissible Exposure Limits (PELs) found in current regulations are out-of-date and inadequately protective. Employers may expose workers to chemicals up to those limits without incurring fines for violating the standard, even though the exposures are patently dangerous. Most were adopted in the early 1970s and were based on scientific research from the 1940s through 1960s. In the late 1980s, the agency undertook an effort to set new exposure limits for hundreds of chemicals in one fell swoop, only to be thwarted by a court that wanted more detailed analyses of each individual chemical exposure limit. Since then, OSHA has initiated and finalized just one new PEL - as part of a comprehensive standard for hexavalent chromium exposure - but only after Public Citizen and the Oil, Chemical and Atomic Workers Union petitioned the agency to do so and fought a protracted legal battle to get the rulemaking started and completed. In the meantime, non-governmental organizations have continued to update their own occupational exposure limits (OELs) for chemicals found in the workplace, which many employers implement voluntarily because they know that OSHA's standards don't do enough to protect workers. The broad recognition that workers face significant hazards even when chemical exposures are below OSHA's PELs presents an interesting question about employers' duty to protect their workers. Fortunately, Congress foresaw the potential for such a problem and included in the OSH Act a provision known as the General Duty Clause (GDC). Under the GDC, "Each employer shall furnish to each of his employees employment and a place of employment which are free from recognized hazards that are causing or are likely to cause death or serious physical harm to his employees." Thu, 24 Oct 2013 13:30:51 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EB4D4B1B-93A1-2402-D80B2CB3959567D8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EB4D4B1B-93A1-2402-D80B2CB3959567D8 Court rules that EPA must decide if new water quality standards are needed to protect the Gulf of Mexico A US District Court in Louisiana recently ruled, in Gulf Restoration Network v. Jackson, that EPA must decide whether it has to impose new water quality standards for nutrient pollution in the Mississippi River watershed. Although that might seem far afield from the Supreme Court's greenhouse gas emissions decision in Massachusetts v. EPA, in fact it's a direct descendant. The Administrative Procedure Act allows any interested person to petition any federal agency to make, change, or repeal regulations. The APA doesn't specifically say how courts should review agency responses to petitions, and in general the courts have been quite deferential to petition denials. Massachusetts v. EPA is best known for holding that states have standing in federal court to challenge actions that contribute to climate change. But it also has important implications for APA rulemaking petitions. The plaintiffs in Massachusetts v. EPA had petitioned EPA to set limits on greenhouse gas emissions from cars. EPA denied the petition on the grounds that it did not have, and in any case would not choose to exercise, authority over greenhouse gas emissions. A slim majority of the Supreme Court, after finding that plaintiffs had standing and that greenhouse gas emissions are within the scope of the Clean Air Act, went on to hold that EPA could not deny the rulemaking petition for reasons "divorced from the statutory text." In that case, that meant that EPA had to actually make a judgment about whether greenhouse gas emissions cause or contribute to air pollution reasonably anticipated to endanger public health or welfare. That holding (and a change in presidential administration) eventually led to EPA's endangerment finding and regulation of greenhouse gas emissions from (so far) tailpipes and large new stationary sources. Wed, 23 Oct 2013 17:10:08 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E6EFA841-9DC7-26D5-6703A4A3E46AA7E3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E6EFA841-9DC7-26D5-6703A4A3E46AA7E3 SBA's Office of Advocacy has added its voice to the chorus of business interests who want OSHA to delay publication of a new rule that would protect workers from the deadly effects of silica exposure. In a letter to OSHA chief David Michaels, the top lawyers from the Office of Advocacy claim that it will be "nearly impossible" for small business representatives to review OSHA's proposal and prepare the comments and testimony due in early December. To be sure, the rulemaking docket is voluminous and the issues are complex. But the bottom line is that each day of delay in publishing the new rule means another day when millions of workers will be exposed to elevated levels of a deadly dust. By OSHA's estimates, hundreds of workers die each year from silica exposures that are perfectly legal under current standards; thousands of other workers suffer from non-fatal diseases. One of those suffering workers is Alan White; a foundry employee from upstate New York who shared his powerful story with the press on the day OSHA announced it would publish the new proposal. The sooner OSHA finalizes this proposal, the sooner employers will institute controls to protect Mr. White's co-workers and millions of others who face unnecessary risks of silicosis, lung cancer, emphysema, chronic bronchitis, chronic renal disease, and a host of other maladies. For businesses, delaying the new rules might mean a few more days of avoided compliance costs, but those costs are small compared to the costs that workers pay as a result of the current, inadequate, protections. The request for delay is especially rich coming from SBA's Office of Advocacy. SBA and the small business community it purports to represent have already been granted a privileged spot in the rulemaking process. Before representatives of workers or other stakeholders get a chance to see an OSHA proposal, a draft document is run through the gauntlet otherwise known as "SBREFA review" (SBREFA is the Small Business Regulatory Enforcement Fairness Act). During that review, officials from SBA's Office of Advocacy, the White House, OSHA, and the Solicitor of Labor's Office work with a panel of "small entity representatives" to get the small business owners' reactions to the proposal. Their reactions are memorialized in a report, and OSHA must include in its final rule a formal, written response to the concerns raised during SBREFA review. OSHA's silica proposal and background documents include a draft response to the SBREFA review that clearly indicate SBA and the small business community know enough about the critical issues for this rulemaking to respond within the current comment period. OSHA must resist the pressure to delay this rulemaking any longer. An early draft went through the SBREFA process a decade ago, it was adjusted to meet small business representatives' critiques and updated with new scientific and economic research, and in 2011 it went to the White House, where it languished for two and half years. Now the rule is at a critical juncture: the public comment period and rulemaking hearing will give OSHA a chance to fine-tune the proposal based on input from a broad range of experts, but that process will take time. As we noted when OSHA announced the silica proposal, the process of getting from a proposed to a final rule has taken the agency three years, on average, in recent rulemakings. If this administration wants an OSHA health standard to its credit, it cannot afford to delay this rule any longer at the behest of the regulated industries. Wed, 23 Oct 2013 14:41:02 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E66773DA-0198-FB24-B98CE2F57C069B28 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E66773DA-0198-FB24-B98CE2F57C069B28 "Es ridículo," was the reaction of a poultry plant worker when he heard of the USDA's proposal to "modernize" poultry slaughter. The agency's January 2012 proposal (77 Fed Reg 4408) would allow companies to increase assembly line speeds from about 90 to 175 birds per minute, and remove most USDA inspectors from the poultry processing line. The Obama Administration should have heard the loud and clear opposition from civil rights, food safety, public health and the workers' safety communities to the USDA's proposal. When the public comment period closed in May 2012, the Southern Poverty Law Center (SPLC), Nebraska Appleseed, the American Public Health Association and other groups were on record urging the Administration to withdraw the proposed rule. The National Council of La Raza, the largest Hispanic civil rights organization in the U.S., put it bluntly: "this proposed rule runs counter to what we would expect from an administration with a public commitment to protecting vulnerable workers." Although calls to withdraw the proposal have fallen on the Obama Administration's deaf ears, poultry workers and their advocates have not given up. As Lizzie Grossman reported last month, their appeal now extends beyond just demands to withdraw the proposed rule. Fifteen organizations, including the Coalition of Poultry Workers, Farmworker Advocacy Network, Coalition of Black Trade Unionists, and the National Council for Occupational Safety and Health, filed a petition with the USDA and the U.S. Department of Labor's OSHA to issue mandatory standards on line speeds in order to protect poultry and meatpacking workers from disabling musculoskeletal injuries. The well-researched, 70-page petition concludes: This petition has demonstrated that there is a compelling need for a standard that properly regulates the dangerously high work speeds in meatpacking and poultry plants. The close relationship among the relentless speed of work, repetitive motions, and the prevalence of crippling and debilitating injuries establishes that OSHA and USDA have an obligation to regulate work speeds in these industries. SPLC and the other petitioners have not yet received a response to their petition from OSHA. I'll chalk up their delay to the government shutdown. (Ninety percent of OSHA's staff is laid off, including everyone in the office responsible for developing new regulations.) USDA, however, sent a response to the petitioners a few weeks ago. The letter uses the mushy term "consider" to describe how it might address the evidence provided by commenters on the increased risk of musculoskeletal injuries with intensified line speeds. USDA Secretary Vilsackcontinues to insist that worker safety matters are the responsibility of the Labor Department and CDC's National Institute for Occupational Safety and Health (NIOSH). His agency makes no promise to accept OSHA's and NIOSH's recommendations for the rule on ways to minimize the risk of injury to poultry plant workers. Mon, 21 Oct 2013 12:15:14 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DB954826-AFDC-CEA4-1C328F3E1EB4AB9B http://www.progressivereform.org/CPRBlog.cfm?idBlog=DB954826-AFDC-CEA4-1C328F3E1EB4AB9B On Tuesday, the Supreme Court granted six of the nine petitions challenging a DC Circuit Court of Appeals ruling in favor of the EPA's rules regulating greenhouse gases under the Clean Air Act. However, the Court granted review of only one aspect of the various petitions: whether the EPA's use of vehicle emission standards to regulate greenhouse gases triggers permitting requirements for stationary power sources that contribute to carbon pollution. The regulations at issue implement the Clean Air Act's Prevention of Significant Deterioration (PSD) program, which regulates new major emitting sources in areas meeting the Act's minimum standards for at least one of the so-called Criteria Pollutants. In these areas, which include almost everywhere in the United States, the Act requires EPA to impose a permit requirement on major emitting facilities, which would include a best available technology requirement, if the facility emits an air pollutant "regulated under the [Act]" in excess of a certain amount. The Court rejected other challenges, including challenges to EPA's determination that greenhouse gases endanger public health as well as challenges asking for reconsideration of the Court's decision in Massachusetts v. EPA that CO2 is a pollutant regulated by the Clean Air Act. Despite the narrow review, special interests opposed to environmental regulation have flooded the news with misinformation regarding the EPA's use of the Clean Air Act to regulate greenhouse gases, whether the Agency has the power to regulate at all and have called for an end to any further regulations to protect the environment and public heath. Listed below are several myths and corresponding facts regarding the Court's decision and the EPA's regulation of greenhouse gases in response to some of the reported misinformation. Thu, 17 Oct 2013 16:44:11 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C7F1F79E-F509-6D92-715E6EFF27C0F835 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C7F1F79E-F509-6D92-715E6EFF27C0F835 Salmonella outbreak reveals we need more, not fewer, cops on the food safety beat. Some 317 victims of salmonella poisoning from Foster Farms chicken sold in 20 states have learned firsthand why we need government. Who knows how much faster the threat would have been contained if Centers for Disease Control (CDC) experts had been walking their usual beat, coordinating state investigators and working frantically to discover the origins of the virulent strain of salmonella that has already hospitalized 42 of the 317 victims? Instead, the investigators were sent home on furlough, and only recalled to work after the scandal hit the media. CDC investigators are a vital link in the chain of public protection because they are the people who "trace back" illness to its source. Obviously, knowing someone has salmonella poisoning is not enough: we also need to know which food, from what company, gave them the disease. When so many people got sick, investigators were called back, but they had to do their work tracking the outbreak without the benefit of the agency's rapid response online-tracking system, Pulse Net, which was shut down as a result of the furloughs. Eventually, the culprit was isolated: a poultry processor called Foster Farms, based in California that had already amassed a pitiful track record of dirty practices, including "poor sanitary dressing practices. Insanitary food contact surfaces and direct product contamination," as documented by USDA. Eventually, USDA discovered that one-quarter of Foster Farm chicken was contaminated by salmonella, more than three times the acceptable standard set by USDA for this bacteria, which causes diarrhea, fever, and abdominal cramps 12 to 72 hours after infection. The USDA sent nasty letters to Foster Farms as far back as July, but did not move on the company in any serious way until October when CDC and other government officials figured out the source of the bad chicken. Even then, no recall was required. Why? According to Food Safety Inspection Service chief Daniel Englejohn, the ability of the USDA to recall meat is hampered by a court decision from 2001, which concluded that as long as a contaminant, like salmonella, can be dealt with through the cooking process, it is considered "safe" to eat. Or, in other words, companies are protected even when people, doing their best to get dinner on the table, get sick. Even proper cooking is no panacea, given the high likelihood of cross-contamination in a kitchen: Costco ordered its recall after someone was sickened with salmonella from eating the store's rotisserie chicken, which is cooked to at least 180 degrees - 15 degrees above the USDA's recommendation. This odd catch-22 and USDA's lackadaisical enforcement has resulted in eight outbreaks in 2012 alone. Thu, 17 Oct 2013 11:46:45 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C6E18C41-B243-93BB-E8D0B803BA55916D http://www.progressivereform.org/CPRBlog.cfm?idBlog=C6E18C41-B243-93BB-E8D0B803BA55916D OSHA's proposed new silica standards promise to improve the health and safety of more than two million workers across the U.S. By reducing exposures to respirable silica dust, the standards are expected to save 700 workers' lives and prevent 1,600 new cases of silicosis every year. Of course, these impressive benefits come at a cost to employers and those costs will be a major talking point for the business community as OSHA's proposal moves through the rulemaking process. One argument that we're sure to hear from the Chamber of Commerce and its allies is that the costs of complying with the new standards will fall disproportionately on small businesses. The plight of small business owners somehow always seems to pull at the heartstrings of the big businesses owners when federal agencies propose new public health and environmental protections - in stark contrast to the rest of the time the big business owners spend trying to knock their competitors out. OSHA's proposed silica standards include some surprising numbers regarding the costs of compliance. Under the federal courts' reading of the OSH Act, the agency must conduct industry-by-industry "feasibility" analyses for new standards. OSHA's regulatory team studiously researches the technologies available for reducing or eliminating a given hazard (in this case respirable silica dust), the costs of implementing those technologies, and the ability of each industry to implement the controls without causing severe economic harm to the industry as a whole. The Regulatory Flexibility Act added to the agency's burdens by mandating that OSHA study many proposed rules' effects on small businesses. Thu, 17 Oct 2013 11:31:48 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C6D3F461-EBBD-7552-ACB340BAADA66499 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C6D3F461-EBBD-7552-ACB340BAADA66499 In late September, the EPA proposed regulation of new power plants' greenhouse gas emissions (GHGs) under the Clean Air Act's "New Source Performance Standards" (NSPS) provisions. Now an often little noticed follow-on provision - Section 111(d)--- is suddenly in the spotlight. Section 111(d) requires regulation of existing sources that are in categories of polluters subject to NSPS regulation. President Obama, EPA, industry, environmental groups, and states have all entered the fray about what Section 111(d) requires and allows. This issue presents several important choices and issues. First, regulation of existing US fossil fuel burning power plants - the source of over 30% of US carbon dioxide emissions-- is unavoidably central to US efforts to reduce GHG emissions. Second, in the face of the federal government's long climate change inaction, many states and regions have already created programs and laws designed to reduce GHG pollution. Some have embraced variants on cap-and-trade schemes, or enacted renewable portfolio standards, or developed demand reduction strategies focused on other sectors, technologies, and consumer use. How would new Section 111(d) mandates mesh with diverse state efforts? Over the long term, Section 111(d) regulation could demonstrate to congress, states, industry and perhaps the world what is possible by providing a major testing ground and microcosm for more comprehensive climate regulation, whether at the national or international level. A major dividing line in early comments is whether states can adopt diverse strategies that consider or allow strategies such as pollution trading, or whether such regulation needs to focus "inside the fence line," meaning regulatory limits no more stringent than could be derived through a more individualized unit or plant-based analysis. Much of the early commentary may just reflect taking of sides, but if taken seriously seems to show misunderstandings of the actual language of Section 111(d) and several crucially important cross references. Tue, 15 Oct 2013 13:58:31 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BD0DA2CC-AF2E-FE06-B9FC6255151C1156 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BD0DA2CC-AF2E-FE06-B9FC6255151C1156 As it turns out, many of the same people who deny that climate change is a problem also deny that government default would be a problem. No doubt there are several reasons: the fact that Barack Obama is on the opposite side of both issues; the general impermeability of ideologues to facts or expert opinion; a general suspicion of elite views. But I'd like to suggest that there is also a deeper belief about the invulnerability of systems to outside shocks, either on the view that the system is very loosely linked or has a very strong tendency to return to equilibrium. These are actually a bit contradictory since strong corrective forces imply tight linkage, but most people don't notice that. For example, you might think that changing one atmospheric gas wouldn't really have much impact on the world or that counteracting forces like increased use of CO2 by plants would come into play. Or, you might think that making a few bondholders wait a bit to get paid wouldn't be a big deal, or that it wouldn't really happen because Treasury would come up with a response to avoid it. There are actually some strong common elements here. Both climate change and a significant U.S. default are unprecedented historically, so we can't rely directly on past experience. Both involve systemic risks, which by their nature are less frequent and less easily understood than an action's immediate impacts. And in both cases, the deniers are not merely saying that the outcome is uncertain - which would still lead to serious precautions because the potential harm is so great - but denying that there's any possibility of a bad outcome. That means that all the experts are either incompetent or lying, but once we're willing to leap over that problem, it's not hard to reject their views. If you're going to reject the views of nearly all climate scientists, why not reject the views of nearly all economists? In for a penny, in for a pound. Fri, 11 Oct 2013 13:35:31 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A85F1525-F96C-8719-928762D51D36A135 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A85F1525-F96C-8719-928762D51D36A135 Yesterday, the Hill published an op-ed by Center for Progressive Reform Scholar Joel A. Mintz entitled, "The Government Shutdown and the EPA: the Environmental Dangers of Congressional Recklessness." It can be read in full here. According to Mintz: The indefinite close down of EPA's operations poses major risks, some imminent and others long term, to the health and natural environment of millions of Americans. The EPA's enforcement of existing regulations provides vital protections against the emission of toxic air and water pollutants and the contamination of public drinking water supplies. The EPA works to prevent the exposure of school children to asbestos, the ingestion of toxic lead paint by infants, and the release of poisonous chemicals from long-abandoned hazardous waste dumps. The Agency also works to guard against the destruction of fish, shellfish and other aquatic life. In addition, the EPA supplies much-needed grant money to state and local environmental agencies - entities that (in many cases) are already starved of the financial resources necessary to carry out their tasks. Due to the government shut down, nearly all of the important EPA work of enforcing these safeguards, and the channeling of federal funds to the states, is now at a standstill. Wed, 09 Oct 2013 15:08:14 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9E673E57-9D4F-72CD-74BF5F3D66ADDD33 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9E673E57-9D4F-72CD-74BF5F3D66ADDD33 Last Friday, Executive Order 12866, which governs the work of OMB's regulatory review arm, the Office of Information and Regulatory Affairs (OIRA) reached its 20th anniversary. Center for Progressive Reform scholars marked the anniversary by examining the Order's reach and OIRA's influence on the regulatory process including on the issues transparency, timeliness and the centralization of executive power. Here's a roundup of their contributions: David Driesen: Keeping OIRA from Harming Efforts to Reduce Greenhouse Gases Emissions "As of this writing, more than six years have elapsed since the Supreme Court held that greenhouse gases were pollutants under the Clean Air Act, many of them under a President committed to addressing climate disruption. In all of that time, EPA has not imposed any limits on the greenhouse gas emissions of power plants or factories, thus making climate disruption irretrievably worse than it might have been." Bill Funk: Time to Stand Up and Be Counted "The heads of agencies, however, principal officers of the United States, have taken an oath to "faithfully discharge the duties of the office" they hold. They presumably believe that the proposed and final regulatory actions they submit to OIRA are called for by the duties of their office. If they are not willing to stand up and be counted when OIRA attempts to override their judgments, they are violating that oath." Lisa Heinzerling: 20 Years of 12866 "President Obama's own executive order on regulatory review, issued in 2011, discusses only the substance, and not the process, of regulatory review, and thus fails to solve any of the problems related to delay, transparency, or procedural regularity that I have described. Nor has OIRA itself solved these problems." Thomas McGarity: A Long History of Analysis and Intervention "The twentieth anniversary of Executive Order 12,866 is not a cause for celebration. It should be a cause for careful examination of the continued need for centralized review of protective federal regulations under a cost-benefit standard." Nina Mendelson: Regulatory Review Needs to Comply with Transparency Requirements "On this 20th anniversary of Executive Order 12,866, we should hold OIRA to its own standards. Just as OIRA requires detailed information and analyses to assess agency rules, we need information to evaluate the work centralized regulatory review is actually doing and when it is worthwhile." Sidney Shapiro: More Politics, Less Expertise: What OIRA has Wrought "Other offices in the White House, besides OIRA, are more deeply involved in making regulatory decisions than in any other previous administration.This deeper involvement has made it more likely that regulatory decisions will reflect political considerations rather than policy considerations. When this happens, OIRA's regulatory review under E.O. 12866 can become a fig leaf covering up for the political decisions that are being made." Amy Sinden: Executive Order 12866's Cost-Benefit Test is Still with Us and I Can Hear Ben Franklin Rolling Over in His Grave "Genuine formal economic cost-benefit analysis cannot be achieved, or even approximated, in practice. Data deficiencies, knowledge gaps, resource constraints, and fundamental irresolvable theoretical dilemmas make it impossible." Rena Steinzor: The End of Centralized White House Regulatory Review: Don't Tweak it, Repeal It "Executive Order 12,866 did not create OIRA, but it provides the rationale for its continued existence in the same way that a menu is the reason people travel to a restaurant. As I have argued elsewhere, the solution is not to tweak the EO, but to repeal it, leaving OIRA to fulfill its limited statutory missions - forestalling excessive paperwork, for example." Robert Verchick: White House Buries Itself in Analysis of Non-Ecnomically Signifigant Rules: A Tour of OIRA's Regulatory Dashboard "Executive Order 12866 requires agencies to submit for review any rule that is "economically significant," which is defined as having "an annual effect on the economy of $100 million." So how many of those 118 rules stacked up at OIRA are 'economically significant'?" Tue, 08 Oct 2013 11:39:41 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=988077B5-DE2C-DC21-41F7765C3218E689 http://www.progressivereform.org/CPRBlog.cfm?idBlog=988077B5-DE2C-DC21-41F7765C3218E689 Ever wonder how Professor Tom McGarity knows about all those delays in regulatory review? Or how Professor Lisa Heinzerling learns about food safety regulations that the White House appears to be burying? Well, now you too can be an OIRA ninja. In President Obama's first term, the White House introduced an interactive Web portal stocked with charts and figures to give you better information about the President's centralized system of regulatory review. (Last summer I referred to OIRA as "the ganglia of the president's rulemaking brain," which creeped out some readers, but I'm sticking with it.) There are only two rules for you. First, don't be afraid to snoop around; sometimes the most useful stuff is found three or four levels down. Second, don't fall in love; OIRA's slick Web site is a fresh breeze for advocates of government transparency. But there's still a lot missing. Remember the line about statistics and swimsuits: what they reveal is interesting, but what they conceal is vital. Let's start with the homepage of the White House Office of Information and Regulatory Affairs, the one with the photo of President Obama and former regulatory czar Cass Sunstein gazing admiringly into each other's eyes. Just below the photo is a link to the "Regulatory Dashboard," your entree into the President's regulatory control room. Mon, 07 Oct 2013 11:50:51 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=93657483-CC80-814A-F36720270A0D619A http://www.progressivereform.org/CPRBlog.cfm?idBlog=93657483-CC80-814A-F36720270A0D619A A series of catastrophic regulatory failures have focused attention on the weakened condition of regulatory agencies assigned to protect public health, worker and consumer safety, and the environment. The destructive convergence of funding shortfalls, political attacks, and outmoded legal authority have set the stage for ineffective enforcement, unsupervised industry self-regulation, and a slew of devastating and preventable catastrophes. From the Deepwater Horizon spill in the Gulf of Mexico to the worst mining disaster in 40 years at the Upper Big Branch mine in West Virginia, the signs of regulatory dysfunction abound. Many stakeholders expected that President Obama would move to reinvigorate the regulatory system, but he has not. In fact, he's gone so far as to adopt some anti-regulatory rhetoric, and suggesting that that alleged over-regulation contributes to the nation's economic woes. One central reason for the systemic failure of effective health and safety regulation is that many regulatory matters enter and exit the White House through the Office of Management and Budget's (OMB) little-known but extraordinarily powerful Office of Information and Regulatory Affairs (OIRA). Centralized White House regulatory review began during the Nixon administration and OIRA was created in 1980. Over four decades, the process has evolved into a gauntlet for public health, worker safety, and environmental protection initiatives,. Agencies doing their best to implement statutory mandates in a reasonable timeframe are subjected to withering rule-by-rule reviews. The process is analogous to examining the branches of individual trees without realizing that they are part of a dying forest; this myopia has obscured the causes and effects of regulatory failure for five presidents from both parties. Fri, 04 Oct 2013 09:44:57 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=837F8E83-9DA1-F501-FC902B3836C8542D http://www.progressivereform.org/CPRBlog.cfm?idBlog=837F8E83-9DA1-F501-FC902B3836C8542D As indicated by the 20th anniversary of Executive Order 12866, which guides the workings of the Office of Information and Regulatory Affairs (OIRA) at OMB, OIRA has become a fixture of the regulatory landscape. OIRA review of proposed rules is problematic, as other blogs in this series have indicated. In the Obama administration, however, this is an additional problem. Other offices in the White House, besides OIRA, are more deeply involved in making regulatory decisions than in any other previous administration. This deeper involvement has made it more likely that regulatory decisions will reflect political considerations rather than policy considerations. When this happens, OIRA's regulatory review under E.O. 12866 can become a fig leaf covering up for the political decisions that are being made. There is an old saying that in government "where you stand depends on where you sit." That is, your view of the world is formed by the institutional arrangements in which you work. White House officials are sensitive to public policy arguments based on expertise, but they also more concerned than their agency counterparts with the political ramifications of such decisions. The White House may seek to control a regulatory outcome to obtain good public policy, but it may also seek to do so to curry favor with political donors or to forestall potential political attacks on the President. Since agency administrators are not running for office, they and their staffs do not share these political concerns (except indirectly in response to pressure from the White House or Congress.) Thu, 03 Oct 2013 11:38:59 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7EC183D1-0C8A-0705-B849527E8CAA99B7 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7EC183D1-0C8A-0705-B849527E8CAA99B7 On this 20th anniversary of the regulatory review regime of Executive Order 12,866, the appropriate thing to do would be to take stock. Has centralized regulatory review, on balance, improved the quality of federal regulation or interfered with it? Is this now-extensive regulatory review process worth it, given its costs? Sadly, the opaque quality of the process precludes a definitive answer. Readers familiar with regulatory review already know that Executive Order 12,866, issued by President Bill Clinton, significantly reaffirmed systematic, centralized White House review of agency rulemaking activity. That Order built on the structure established in President Ronald Reagan's 1981 Executive Order 12,291, both strengthening and modifying it in important ways. And Reagan's Executive Order in turn built substantially upon more tentative moves made by Presidents Nixon, Ford, and Carter. EO 12,866 effectively settled three areas of bipartisan consensus (at least among Presidents) around regulatory review. First, review would be centralized. Executive agencies were not just ordered to refrain from publishing draft rules prior to "clearance" from the OMB Office of Information and Regulatory Affairs, but conflicts between the regulating agency and OMB (or other agencies) were expressly to be resolved by the President or Vice-President. Second, presidential priorities would expressly guide agency rulemaking, whether or not the agency statutes referenced those concerns. EO 12,866 asked agencies to explain, for example, how each proposed rule was consistent with presidential priorities. And third, agencies would have to comply with detailed analytical requirements such as cost-benefit analysis, aimed in part at achieving greater policy consistency and in part at some notion of improving the quality of agency rules. Thus, regulatory review joined the President's other authorities - including appointments, removal, and budgetary control - aimed at increasing the responsiveness of the administrative state. Thu, 03 Oct 2013 11:19:17 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7EAEAE50-A872-92F1-07B7252CF0B96BEA http://www.progressivereform.org/CPRBlog.cfm?idBlog=7EAEAE50-A872-92F1-07B7252CF0B96BEA This blog explains why President Obama should exempt proposals to mitigate climate disruption by reducing greenhouse gas emissions from OIRA review. First, the procedure that justifies OIRA review, cost-benefit analysis (CBA), just does not work for climate disruption measures. Second, CBA undermines just and legal climate policy. Third, climate disruption poses special risks that make the delay and weakening that comes from OIRA review unacceptable. Because of climate disruption's nature, prominent CBA proponents, such as Eric Posner and Martin Weitzman, have argued that CBA works badly for climate disruption. Weitzman emphasizes that climate disruption creates a risk of a catastrophe. Because the magnitude and likelihood of such a catastrophe remain unknown, CBA cannot include a reasonably reliable benefit estimate. Weitzman argues that this problem so dominates any rational response to climate disruption that conventional CBA becomes useless and highly misleading as a guide to climate policy. Thu, 03 Oct 2013 11:06:21 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7EA3913D-AB20-8945-CC033F4FBC6D530C http://www.progressivereform.org/CPRBlog.cfm?idBlog=7EA3913D-AB20-8945-CC033F4FBC6D530C The origins of Executive Order 12866 go all the way back to the Nixon and Ford Administrations. Soon after the enactment of the Occupational Safety and Health Act and the Clean Air and Water Acts, affected industries began to complain bitterly about the burdens the new wave of public interest statutes imposed on them. The business community was also chaffing under the National Environmental Policy Act's requirement that federal agencies prepare environmental impact statements (EISs) for major federal actions that significantly affect the quality of the human environment. Although the EIS requirement only applied to federal agencies, it was applicable when a company needed a permit to build a nuclear power plant, drill on federal lands, and many other business related activities. The business community observed the potential for EIS requirements to bog down agencies in a great deal of paperwork prior to taking action and decided that what was sauce for the goose was sauce for the gander. They posited: why not make regulatory agencies prepare lengthy statements detailing the effects of major regulatory actions not only on the environment, but on the regulated industries themselves? Responding to calls for economic impact statements, the business-friendly Office of Management and Budget (OMB) persuaded President Nixon to require the newly created Environmental Protection Agency and Occupational Safety and Health Administration to send their proposed regulations through an interagency "Qualify of Life" review. The agencies were required to prepare a summary of the costs of each proposed regulation and its alternatives to accompany it through the review process. Wed, 02 Oct 2013 11:36:11 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=79901C5B-DE50-DC45-15673BAA2AED10FE http://www.progressivereform.org/CPRBlog.cfm?idBlog=79901C5B-DE50-DC45-15673BAA2AED10FE It was 20 years ago this week that President Bill Clinton signed Executive Order 12866. That was a watershed of sorts, because it marked the adoption by a Democratic administration of a key aspect of President Reagan's anti-regulatory agenda -- the requirement that all major federal regulations undergo cost-benefit analysis. This was not a move that pleased Clinton's liberal base, since cost-benefit analysis was widely understood to be a tool favored by industry for weakening and delaying regulation. But, nonetheless, Clinton signed 12866 in 1993, and it's been with us ever since. Maybe the staying power of cost-benefit analysis has partly to do with the superficial appeal of the basic idea. "After all," says the Chamber of Commerce, "it's just basic rationality and common sense! Why would you want a rule that causes more harm than good?" And then come the inevitable appeals to Ben Franklin, who apparently said something once about writing down pros and cons on a sheet of paper. So if you're against cost-benefit analysis you're basically against Ben Franklin, which means you might as well say you hate your mother and never want another slice of apple pie. Perhaps it's no surprise, then, that Clinton capitulated to such arguments. Or that Obama did the same nearly two decades later, issuing an order "reaffirming" 12866 after briefly flirting with the idea of scrapping it. The problem is, there's cost-benefit analysis and there's cost-benefit analysis. Ben Franklin's sheet of paper with the line down the middle is one end of the spectrum. But at the other end is a highly technical and formal method grounded in economic theory that attempts to fully quantify and monetize all of the social costs and benefits of a whole range of regulatory options and then, by calculating the point at which the marginal benefits curve intersects the marginal costs curve, identify the "economically efficient" level of regulation. And those two decision-making tools have very little in common. Wed, 02 Oct 2013 11:11:40 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7982431C-EEA6-EC35-7CF41D56F0AAEEA7 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7982431C-EEA6-EC35-7CF41D56F0AAEEA7 On September 17th, 2013, US EPA released a massive 331 page draft report distilling peer reviewed science regarding "connectivity" of various sorts of American water bodies with larger bodies of waters, such as rivers and lakes. It also sent to the White House for review a draft proposed rule about how it and the Army Corps of Engineers would determine what sorts of waters would count as "waters of the United States" subject to federal jurisdiction under the Clean Water Act. Simultaneously, EPA (perhaps at the request of the White House) withdrew a draft 2011 "guidance" document regarding what "waters" could be protected; it had been in limbo for many months before the White House regulatory "czar," the Office of Information and Regulatory Affairs (OIRA). So far, no one outside of the executive branch has seen the new proposed rule, and the science report is just a draft. Even under the most optimistic scenario, it will be months, perhaps years, before these draft proposals are finalized. Nevertheless, these steps have already provoked news attention, blistering attacks by legislators and industry groups, and applause by environmental groups. Why all the hoopla? This blog provides context about these actions, explains why the stakes are indeed high, and flags the key issues and likely points of contention as this ongoing regulatory war unfolds. By way of disclosure, I should note that although I draw mostly on the study of the relevant legal materials and developments, I also draw from my own immersion in the issues. I co-authored a Supreme Court brief for a bi-partisan group of former US EPA Administrators in the Supreme Court's Rapanos case and then subsequently testified several times before congressional committees about many of the questions discussed here. All of those involvements, however, were on an uncompensated pro bono basis. I'm writing this blog for CPR as a professor and member-scholar of the Center for Progressive Reform, not as counsel for any stakeholder in these battles. The stakes: When the issue of what sorts of "waters" are subject to federal protection - so called "jurisdictional" waters - last went before the Supreme Court in the 2006 Rapanos case, this seemingly obscure question under the Clean Water Act provoked dozens of amicus briefs from industry, environmentalists, governments, and various organizations. Although the Bush administration was often viewed as anti-environment, inRapanos it offered a spirited defense of longstanding federal protections of America's waters. Lines to hear the oral argument snaked around the Supreme Court. After the Court issued a confusing splintered ruling, congressional committees held at least four directly related sets of hearings about the decision's implications, possible responses, and to debate proposed curative legislation. Even in the contentious world of Washington's ongoing partisan gridlock, this much attention has been extraordinary. Tue, 01 Oct 2013 15:06:40 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=753302C0-FB82-35A9-5CFB3BC8475CCF91 http://www.progressivereform.org/CPRBlog.cfm?idBlog=753302C0-FB82-35A9-5CFB3BC8475CCF91 Call it buyer's remorse. The Office of Advocacy of the Small Business Administration (SBA) is publicly - albeit meekly - tiptoeing away from a now-infamous report that it commissioned, in which economists Nicole Crain and Mark Crain purported to find that federal regulations cost the economy $1.75 trillion in 2008. After being roundly criticized by CPR, the Congressional Research Service, and others, SBA's Office of Advocacy now explains, referring apparently to the $1.75 trillion figure that "the findings of the study have been taken out of context and certain theoretical estimates of costs have been presented publicly as verifiable facts." While this admission is welcome, it does not go nearly far enough in light of the antiregulatory crusade this misleading, taxpayer-supported report fueled. Soon after the Crain and Crain report was released in 2010, CPR published a White Paper that demonstrated the unreliability and implausibility of the Crain and Crain report's methodologies and findings. A few months later, the nonpartisan Congressional Research Service (CRS) released its own analysis of the Crain and Crain report, and its findings were equally damning. Then the Economic Policy Institute (EPI) separately analyzed the Crain and Crain report, and concluded the Crain and Crain report was based on a "flawed economic model and faulty data." All of this caused then Administrator of the Office of Information and Regulatory Affairs (OIRA) to describe the study as "deeply flawed" and an "urban legend" in congressional testimony. And in addition to employing indefensible methodologies to support their calculations for costs, the Crain and Crain report's authors ignored regulatory benefits, a move that ensured that the report's findings would be ripe for precisely the kind of abuse and misuse by anti-regulatory forces that SBA's Office of Advocacy is now trying to walk away from. Sure enough, the fantastical $1.75 trillion dollar estimate has been cited time and time again by industry lobbyists and regulatory criticsin Congress, even after the report itself had been debunked, to support troubling anti-regulatory legislation, such as the REINS Act. After handing this Christmas gift to the anti-regulatory forces, SBA's Office of Advocacy owes the public something more than burying a begrudging acknowledgment of the report's weakness on an obscure webpage. When I wrote Dr. Winslow Sargeant, the head of the SBA Office of Advocacy, asking that his agency completely disavow the Crain and Crain report, he offered a disappointing response that attempted to rehabilitate the Crain and Crain report's findings and methodology. So, it is encouraging that the SBA Office is now being a little more forthright in its criticisms of the report. Yet, the Crain and Crain report has so polluted the public debate over regulatory policy that this half step by SBA's Office of Advocacy is plainly inadequate. It is time for the agency to disavow the report completely, remove any vestige of it from its website, and adopt procedures to ensure that it does not pay for and publicize similarly misleading research again. As a fiduciary of the public's money, it owes nothing less. Tue, 01 Oct 2013 11:19:06 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=74628324-9395-C02A-66205F2C45AC47D8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=74628324-9395-C02A-66205F2C45AC47D8 Executive Order 12866 may be twenty years old, but formal, centralized review of agency rulemaking by the Office of Information and Regulatory Affairs (OIRA) is more than thirty years old, having been instituted by President Ronald Reagan in Executive Order 12291 in 1981. Since then, this centralized review has been carried out without significant change over five presidential administrations and has had bi-partisan support in both the House and Senate. Progressives have been less enamored with this review, seeing in it a deliberate bias against regulation by reason of its additional roadblocks to and delays in adopting regulations. This bias was clearly intentional in the origin of the centralized review by President Reagan, who famously said, "government is not the solution to our problem; government is the problem." However, even when Democrats became President the bias remained. President Clinton's E.O. 12866 begins with a statement of regulatory philosophy that agencies should adopt "only such regulations as are required by law . . . or are made necessary by compelling public need," not regulations that simply further the public interest or increase the net welfare to society. President Obama not only retained E.O. 12866 but also, in his E.O. 13563 explicitly reaffirmed its principles. Of course, there is nothing inherent in the concept of centralized oversight of agency regulation that requires a bias against regulation. After all, OIRA Administrator John Graham in the George W. Bush administration instituted "prompt letters," which proactively requested agencies to take certain actions, including adopting new or strengthening older regulations. However, Although the "prompt letters" initiated by OIRA administrator John Graham in the George W. Bush administration demonstrate the ability of centralized review to spur regulation and to push for further regulation, the fact that there were only seven such letters in eight years probably reflects the exception that proves the rule. Mon, 30 Sep 2013 20:17:16 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=71290C81-DAEC-891A-0AC71D0146A6B73F http://www.progressivereform.org/CPRBlog.cfm?idBlog=71290C81-DAEC-891A-0AC71D0146A6B73F This coming Friday marks the 20th anniversary of a little-known but remarkably important document: Executive Order 12866, issued by President Bill Clinton in 1993. Executive Order 12866 replaced an order issued by President Ronald Reagan in 1981. Both of these documents set out a process whereby the White House - acting through the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) - would review major agency rules before they were issued. Executive Order 12866, and the Reagan order before it, ushered in a new era in administrative law, one in which the White House would become the dominant force in administrative rulemaking and in which cost-benefit analysis would become the overarching framework for evaluating the wisdom of rules. Professional career staff in the agencies, steeped in the technical fields relevant to the agencies' work, would see their work product changed, sometimes dramatically, by professional career staff in OIRA. Political management at the agencies would find their actions scrutinized, revised, and sometimes stopped altogether by political operatives at the White House. Even where statutes (as most do) charged a particular agency with making a particular technical finding and set forth a decision-making framework other than cost-benefit analysis, the White House process of regulatory review displaced those agency decision makers and supplanted the statutory standard with a cost-benefit test. The executive orders under both Reagan and Clinton qualified their reach by stating that they were to be applied "to the extent permitted by law," but administrative law developments in the Supreme Court subsequent to the Reagan executive order - in particular, the famous Chevron decision - give tremendous leeway to agencies in interpreting the statutes they administer, and OIRA has taken upon itself to instruct agencies how to interpret these laws. Thus the constraint of following existing law is more illusory than real. Executive Order 12866 entered this fraught environment after over a decade of experience with Reagan's order. Harsh criticism had followed the original order and its implementation. OIRA reviews took a long time; indeed, sometimes review never ended and rules simply died on the OIRA vine. The process was opaque. One could hardly tell what was under review, much less what OIRA had done during its review. OIRA review had become an opportunity for industry representatives to air their complaints about rules, and this part of the process was opaque as well. The same was said of the process for resolving a dispute between OIRA and the agency proposing an action. In short, in addition to worries about the substance of OIRA review, including the displacement of agency decision makers and the superimposition of a cost-benefit test on non-cost-benefit statutes, there were large concerns about the process as well. Mon, 30 Sep 2013 13:15:19 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6FA6B450-D40F-5318-A555BF5E4E4D021B http://www.progressivereform.org/CPRBlog.cfm?idBlog=6FA6B450-D40F-5318-A555BF5E4E4D021B Today, the Hill published an op-ed by CPR Vice President Sid Shapiro entitled, "In Defense of Regulation." According to the piece: The responsible scholarly literature - as opposed to calculations cooked by business-friendly think tanks - has refuted the opponents' claims of regulatory costs far in excess of the benefits of regulation. The same literature reminds us that not regulating also has costs - costs paid by the American public rather than by regulatory entities. Consider the Environmental Protection Agency's long-delayed revisions to air quality standards required by the 1990 Clean Air Act Amendments. If it succeeds, and if the anti-regulation forces in Congress don't derail it, the rules are projected to save 237,000 lives by 2020. If the rules are delayed further or scuttled altogether, that's the cost of inaction - actual lives lost due to air-pollution-related illness. It concludes: Then there's climate change. We've tried inaction, and the problem has grown more severe. Congress has failed to act, with the same forces opposed to regulation leading the charge against a law tailored to the specific causes of climate change. So it is left to the EPA and others to use existing statutory authority to reduce our planet-choking greenhouse gas emissions. Like any aspect of government, the regulatory system is not perfect. But the long history of regulation in the United States tells a very consistent story: Smart regulation, pursuant to laws passed by Congress, saves lives, protects the economy, preserves the environment, safeguards workers, makes automobiles safer and more. Over our history, one overriding truth emerges: unregulated markets will not protect us or produce the type of society in which most of us would like to live. Wed, 25 Sep 2013 16:55:49 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=56B0AB8E-9EEB-E076-520E5DE1F9DEEF11 http://www.progressivereform.org/CPRBlog.cfm?idBlog=56B0AB8E-9EEB-E076-520E5DE1F9DEEF11 Last week, E&E News reported a breakdown in talks over EPA's long- delayed stormwater rule. In 2009, in a settlement with the Chesapeake Bay Foundation, EPA promised a new rule by November, 2012. That deadline has long since passed, and apparently EPA and environmental groups are at an impasse in their negotiations over a new timeline. The causes for the delay, which have been thoroughly covered here, are many, but all they boil down to a central problem: urban stormwater is hard to regulate, and EPA is struggling to figure out how to improve the existing system. There are several key reasons for those challenges. First, urban stormwater problems generally arise from the combined runoff of very large numbers of properties. That makes an individual permitting approach, which has been quite successful for discharges of industrial and wastewater treatment plant effluent, hard to use; writing permits for millions of landowners probably isn't administratively or politically feasible. Urban stormwater therefore requires alternative regulatory structures, but coming up with effective ones hasn't been easy. Tue, 24 Sep 2013 15:39:47 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=51429F9C-EDD8-C956-19154CCD96CF99B7 http://www.progressivereform.org/CPRBlog.cfm?idBlog=51429F9C-EDD8-C956-19154CCD96CF99B7 As we noted on the day of the announcement, OSHA has - at long last - released a proposal to better protect workers from respirable silica. We didn't have much to say about the substance at the time because we simply hadn't had the opportunity to read through the massive proposal. (It's over 750 pages, with almost 1600 additional pages in the risk assessment and economic analysis documents - OSHA clearly doesn't take their regulatory responsibilities lightly.) Having had a chance to get a bit more familiar with the proposal, here are some initial thoughts: Tue, 24 Sep 2013 11:37:59 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5066E80C-B386-B719-0484DA30AC869243 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5066E80C-B386-B719-0484DA30AC869243 On September 20, 2013, the EPA proposed setting new source performance standards for greenhouse gas emissions for new power plants. Although the agency repackaged and fine-tuned an earlier proposal, issued in April 2012 proposal, it continues to hold the coal industry's feet to the fire. The proposal makes clear that new coal-fired power capacity cannot be built without major reductions in carbon emissions. The agency's new proposed rule continues to convey a critical message to utilities contemplating new energy-generation investments: utilities can no longer develop uncontrolled high-emission energy sources; future energy investments must either be lower-carbon or control carbon. The agency's proposal provides clear parameters for future investments that set the nation on a more sustainable energy path. This essay focuses on a critical difference between the September 2013 proposal and the earlier April 2012 proposal: how EPA has categorized electricity-generating units (EGUs). In this essay, I first explain the standard setting process, and then explain EPA's decision to combine coal and natural gas facilities in its April 2012 proposal and its retreat from that approach in the September 2013 proposal. I then discuss the legal and policy implications of that shift. Although the change in categories did not make much difference in the standards set, it did shift the likely areas of legal controversy, and marks a shift in the agency's posture in shaping utilities' energy choices. Mon, 23 Sep 2013 14:21:31 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4BD6CD17-94FA-9A5B-98EEFA9DFFA2BD81 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4BD6CD17-94FA-9A5B-98EEFA9DFFA2BD81 Almost every new power plant that the electric utility industry has built in recent years has been a natural gas powered plant. Industry rarely builds new coal-fired power plants anymore because gas has become much cheaper than coal. That is a very good thing. Absent rather expensive carbon capture and storage, new coal-fired power plants emit far more greenhouse gases than natural gas powered plants. The new source standards promulgated today will tend to lock in the current status quo. They will likely impose no net cost on the economy, because natural gas has become cheaper than coal. Instead of generating electricity with the dirtiest fuel source, we will continue to rely more heavily on a somewhat cleaner fuel source. Given the effects of climate disruption one could argue that these standards do not go far enough. Climate disruption has likely caused heat waves, sea level rise, intensified hurricanes, wildfires, and droughts already. And scientists predict intensification of these effects if greenhouse gas emissions continue without surcease. It is not clear that EPA is being as demanding as it could be, since these standards do allow utilities to build new coal-fired power plants even when using gas would produce less greenhouse gases. Nor do they aggressively maximize the emission reductions available from natural gas. Yet, these new standards will lock in technological advances substantially reducing emissions, at least when utilities build new plants. Any technological advance does create some losers along with the winners. But when computers made typewriters obsolete, nobody suggested that we stop companies from building personal computers because a robust computer industry would hurt the typewriting industry. Similarly, when Apple started making I-Phones, nobody sought to stop this on grounds that it would hurt sales of MP3 music players and landline phones. And in the last few years, when electric power producers started substituting natural gas for coal, nobody suggested that the impacts on coal producers should stop us from allowing electric utilities from making this change. The technological improvements that have made America a leading economic power always come with some downside. Yet, our tendency to move forward has made us a great country. Strangely, those in Congress who moan about environmental regulations "killing jobs" remained utterly silent when the electric utility industry started actually reducing coal mining jobs by switching to natural gas, not just for new plants, but for existing ones as well. Now that the EPA has, quite appropriately, stepped up to say that environment imperatives require this trend to continue at least for new plants (unless we can realize the promise of clean coal), we can expect these supposed champions of the working man to suddenly start denouncing EPA for destroying jobs. They will not mention the jobs created by drilling for natural gas and bringing it to market nor in developing and applying carbon capture and storage to new coal-fired power plants. They will not mention the serious harm global climate disruption will visit upon us if we do not start down the path of phasing out fossil fuels. And they will not mention that the trend toward gas displacing coal is already far advanced without any push from EPA. They will focus only on the losses and attribute those solely to EPA in a bid to try and revive an old, dirty, and dying technological approach that is already, thankfully, on its way out. EPA deserves praise for taking this step forward in the face of opposition to sensible government so virulent that it objects to standards that do little more than lock in a recently altered status quo. In a world where climate disruption threatens our very existence, we will need government to function well in order to stand a chance of avoiding horrific losses. This rule constitutes a good step in that direction. Fri, 20 Sep 2013 15:23:32 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3C9BD866-F4E3-89E6-274C190E672C0EBB http://www.progressivereform.org/CPRBlog.cfm?idBlog=3C9BD866-F4E3-89E6-274C190E672C0EBB This entire week, the coal industry and electric utilities have been decrying the EPA's proposed rule, released today, limiting CO2 emissions from new coal-fired power plants. Experts predict the proposed rule will place limits on coal-fired power plants that will make them impossible to operate in the absence of carbon capture and sequestration (CCS) technology, which will significantly increase the cost of running existing plants and building new plants. These costs, as well as today's low natural gas prices (and low wind prices in some areas), will transform coal from the low cost option for electricity generation in many parts of the country to a higher cost option. In the press, the coal industry and utilities contend that CCS technology is little more than a pipe dream. They argue that the rules will violate the Clean Air Act because CCS is not a commercially feasible technology. How times change. Several years ago, many in the industry touted carbon capture and sequestration (CCS) as the potential savior for coal. This technology, which had been used on a much smaller scale for years in the oil and gas industry, would capture, compress, transport, and store underground for thousands of years millions of tons of CO2 emitted from coal-fired power plants and other industrial facilities. CCS had strong support in the Bush Administration and the Obama Administration, from coal-friendly members of Congress, and from industry itself. Why was there so much support for CCS among so many diverse interests groups at that time? Back around 2006-2008, Congressional limits on GHG emission appeared imminent. In 2009, the House passed the Waxman-Markey Bill, which contained the first federal limits on GHG emissions and Senate passage of a similar bill seemed likely. There were numerous provisions in the Waxman-Markey Bill related to CCS, including free emissions allowances for coal-fired power plants that implemented the technology and tens of billions of dollars in funding for demonstration projects, research, and implementation. In other words, CCS was the silver bullet that would save the coal industry and investments in coal-fired power plants around the country. Industry response to this predicted new regulatory scheme was promising. As only one example, American Electric Power (AEP) initiated a joint project with government and other partners for a CCS demonstration project at its Mountaineer coal-fired power plant in West Virginia, spending millions of dollars for the pilot project and committing many millions more for a larger demonstration project. The pilot project successfully operated in 2009-2010 and the U.S. government and other parties offered significant funding for the demonstration project to begin in 2011. Fri, 20 Sep 2013 01:27:41 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=399EEBAE-E9A9-239B-9FAC3B955780D0DC http://www.progressivereform.org/CPRBlog.cfm?idBlog=399EEBAE-E9A9-239B-9FAC3B955780D0DC Yesterday, the Environmental Protection Agency (EPA) announced that it was "withdrawing" from White House review its draft final guidance that sought to clarify the scope of the Clean Water Act. The guidance had been languishing at the Office of Information and Regulatory Affairs (OIRA), which oversees the White House regulatory review process, for 575 days, even though Executive Order 12866, the document that governs OIRA review of regulations, caps the length of reviews at 90 days plus a limited, one-time extension of 30 days. This is just the latest episode in what now appears to be a new disturbing trend: The Obama Administration seems to be increasingly relying on a relatively uncommon practice known as a "withdrawal" to unceremoniously dispose of long-overdue OIRA reviews involving important safeguards that are vigorously opposed by industry. Over the last few months, several other industry-opposed rules have met a similar fate of being withdrawn after sitting at OIRA for well beyond the time limit permitted by Executive Order 12866: ·The National Highway Traffic Safety Administration's (NHTSA) draft final rule mandating rearview cameras to prevent back-over accidents involving children: "Withdrawn" from regulatory review on June 20, 2013, after collecting dust at the OIRA for 583 days. ·The EPA's draft proposed Chemicals of Concern list - an absurdly modest regulatory "action" that would have merely identified a handful of potentially harmful chemicals as worthy of additional agency scrutiny: "Withdrawn" from OIRA review on September 6, 2013, after an astonishing delay of 1214 days. · The EPA's draft proposal to limit the chemical industry's specious "confidential business information" claims to shield crucial health and safety data on their new chemicals from public disclosure: "Withdrawn" from OIRA review on September 6, 2013 after 620 days. Before delving into why this apparent uptick in withdrawals is cause for concern, some background may be in order. A "withdrawal" occurs when an agency voluntarily chooses to "withdraw" a draft proposed or final rule from the regulatory review process before OIRA, as the regulatory gatekeeper, has either formally approved the draft - clearing it for publication in the Federal Register - or denied it, through a "return letter," sending the draft back to the agency for more work. At least, that's the theory of how withdrawals work. In some cases, the circumstances suggest that OIRA or other White House officials have pressured the agency into withdrawing a rule. The Executive Order does impose on OIRA important disclosure requirements that if followed, would help to bring needed transparency to the withdrawal process. Under the Order, these obligations are very broad, requiring OIRA to "make available to the public all documents exchanged between OIRA and the agency during the review by OIRA." (Emphasis mine.) See for yourself at section 6(b)(4)(D). Presumably, included in "all" these "documents" would be evidence of flaws or policy disagreements that led the agency to withdraw the rule. It would also shed some light on whether this withdrawal was in fact voluntary or under pressure from the White House - and thus just a return letter by another name. Wed, 18 Sep 2013 13:11:29 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=31D6C986-C3A6-6822-D4F31AC111043A76 http://www.progressivereform.org/CPRBlog.cfm?idBlog=31D6C986-C3A6-6822-D4F31AC111043A76 Everything's upside down. Last week a Democratic president urged a military strike in the Middle East while Republicans dithered about quagmires. Tomorrow, a subpanel of the House Energy and Commerce Committee will launch its first climate change hearing in years and hardly any Obama administration official is willing to show up. Representative Ed Whitfield (R-Ky), who chairs the Committee's Energy and Power subpanel, says the committee requested presentations from 13 federal agencies. But as of this post only EPA Administrator Gina McCarthy and Energy Secretary Ernest Moniz have promised to testify. Normally, of course, you can't stop us progressives from talking about climate change. We talk smack about Canadian tar sands, press universities to rethink their carbon investments, and name hurricanes after Marco Rubio. (The last was really funny, but perhaps not fair.) The President's all in too. Last August, when he denounced, "the limitless dumping of carbon pollution from our power plants," I couldn't get enough. So, what leaves Whitfield singing, "Can I Get A Witness?" The thing to know is that tomorrow's major hearing on climate change is not really a major hearing. It is not even one of those Potemkin major hearings where the participants sit like plyboard cut-outs and pretend to be interested in the topic. No, this is an ambush. And even the Democrats have figured it out. So, please, do not expect the panel's vice chairman, Representative Steve Scalise (R-La) to express concern that because of warming and subsidence, Louisiana is experiencing the fastest rate of sea-level rise on the planet. And, no, Representative Cory Gardner (R-Co) is not going to waste time explaining that his state's water conservation board worries that Colorado may soon lack water to support its cities, farms, and fish runs. Nor will Representative John Barrow (D-Ga) complain that the Peach State lacks any plan to prepare for such climate shockers as heat waves, vector-borne illness, and increased smog? You see, the real concern of those in charge of this hearing is not that the climate is changing, but that the government might try to do something about it. Thus Chairman Whitfield's invitation letter requests that witnesses come prepared to discuss all upcoming "regulations or guidelines" that would make it harder to pump greenhouse gases into the air, and explain how any "agency funds" have been used to reduce or prepare for climate impacts. As Whitfield explained later to press: "It's important that we be aware of what unilateral action through regulation and executive orders the administration is looking at." One of those "unilateral actions" that Whitfield, no doubt, has in mind is EPA's upcoming proposal to limit greenhouse gas emissions from new fossil fuel power plants. Let's ignore for the moment how a rule embraced by an elected president, impelled by a Supreme Court decision (Massachusetts v. EPA), and authorized by an act of Congress (the Clean Air Act) can be characterized as "unilateral." I need to save something for my law students' final exam. The coal industry is extremely worried about this because coal is exactly the fossil fuel that President Obama had in mind when he complained about all that "limitless dumping" from "power plants." And some Beltway experts are predicting that EPA's new rules may require new coal-fired power plants to adopt expensive technologies like "carbon capture and storage" (CCS) in order to qualify for permits. Fancy this, for years the coal industry has been telling us about all its clean coal technology. They said over, and over again that clean coal technology allowed power plants to capture greenhouse gases and pump them underground. We were assured such advancements "aren't just predictions," but reality. Remember the image of the orange extension cord plugged into that polished lump of coal--the one paraded during NASCAR rallies and in between segments of Sunday morning political talk shows? Remember those television ads with a rainbow coalition of goggled lab and plant workers imploring you to "Believe!"? (Shout it with me: "BELIEVE!") And now they say they don't have it? Let's have a hearing on that! Tue, 17 Sep 2013 10:54:58 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2C3393DD-E681-B713-FBA17C59145A5E9B http://www.progressivereform.org/CPRBlog.cfm?idBlog=2C3393DD-E681-B713-FBA17C59145A5E9B In a much-anticipated opinion, a district court judge on Friday upheld the Bay TMDL, or pollution diet, against a challenge brought by the American Farm Bureau. The decision affirms that EPA's Chesapeake Bay efforts have been squarely within its authority under the Clean Water Act (CWA), not to mention the various consent decrees, memoranda of understanding (MOU), and a presidential executive order. The Chesapeake Bay Total Maximum Daily Load (TMDL) is a cap on the total amount of nitrogen, phosphorus, and sediment that can enter the Bay from the District of Columbia and the six Bay Watershed states: Delaware, Maryland, New York, Pennsylvania, Virginia, and West Virginia. The plan is the largest and most complex of all such pollutant limits to date, and jurisdictions across the country are paying close attention to it because they consider it a possible model for efforts to clean up their own polluted watersheds. The verdict, provides welcome certainty as municipalities and counties carry out the complex task of developing their own plans for meeting reduction goals. And, even more importantly, it allows EPA and the states to direct their attention to the pressing need to enforce the requirements of the TMDL. The plaintiffs had three main allegations: (1) that the EPA was acting outside the scope of the Clean Water Act by implementing the Bay TMDL; (2) that the TMDL was arbitrary and capricious in that it relied on flawed science; and (3) that EPA failed to provide an adequate notice and comment period, in violation of the Administrative Procedure Act (APA). The district court disagreed with all three allegations, as summarized below. (1) EPA's TMDL is authorized by the CWA. The meat of the Farm Bureau's argument was that EPA overstepped its authority. While the plaintiffs conceded that EPA has the power to issue a TMDL, they argued that EPA improperly implemented the TDML, which it does not have the authority to do under the CWA. Judge Rambo agreed that TMDL implementation primarily falls to the individual states, but disagreed that the TMDL represents an unlawful implementation plan. The court rejected the Farm Bureau's argument that the inclusion of wasteload allocations (WLAs), load allocations (LAs), and sector and individual source allocations in the TMDL is too detailed and should be left to the states to decide. First, the court found nothing in the CWA that prohibits EPA from defining the TMDL in terms of WLAs and LAs. Second, the court acknowledged that most of the individual allocations were provided by the states, rather than dictated by EPA. Key to the court's decision was the TMDL's demonstrated commitment to cooperative federalism. Judge Rambo dedicated nearly twenty pages of her ninety-nine-page opinion to reviewing the history of the Bay preservation efforts, which has spanned more than thirty years, been the subject of considerable litigation, and yielded numerous consent decrees, settlement agreements, and MOUs. This history reveals consistent communication and cooperation between EPA and the states. Indeed, the Bay states asked EPA to set pollution levels for the entire watershed in 2007 and, as the court emphasized, "no state has filed suit challenging the TMDL." (2) EPA's reliance on scientific models and data are reasonable. The court found that EPA's reliance on certain models and data were rational and, under Chevron, deferred to the agency's expertise. (3) The length of the comment period and information provided was adequate. The court had very little trouble finding that the forty-five-day public comment period was sufficient. First, the period exceeded the statutory minimum requirement of thirty days. Second, because the TMDL was developed over a ten-year period, plaintiffs actually had much longer than the forty-five days in which to participate in the plan's development. Finally, the court disagreed that the process was procedurally insufficient because EPA allegedly withheld information about three models underlying the final TMDL. The court found that not only did the EPA give as much information as it could regarding these ever-changing models, but also that the plaintiffs failed to demonstrate how it was prejudiced by the lack of information. Tue, 17 Sep 2013 10:33:07 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2C1F96EE-A856-D88E-C6AFBCF5E829E928 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2C1F96EE-A856-D88E-C6AFBCF5E829E928 Earlier this week, Roll Call published an op-ed by CPR Scholars Thomas O. McGarity and Wendy Wagner entitled, "Toxics Control Bill Will Handcuff EPA." The piece concludes: In our decades of research and writing on tort law and environmental regulation, we have never seen a pre-emption provision that intrudes more deeply into the civil litigation system at the state level than the one in this bill. If victims of toxic chemical exposure attempt to recover damages at the state level, their cases would have to be dismissed if the EPA had concluded - rightly or wrongly - that a chemical was safe. For example, Hurricane Katrina victims who were housed in formaldehyde-contaminated Federal Emergency Management Agency trailers successfully sued the trailer manufacturers for damages. Under this bill, if the EPA found that formaldehyde passed its safety test, those families would be denied even their day in court. Reform of toxic chemical legislation is long past due and badly needed. But the current bill, at least as it stands right now, fails the most fundamental of tests: It doesn't make the existing law better. Fri, 13 Sep 2013 10:52:31 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1797B27B-A9A2-3C6E-3CA20AEDE7095FE0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1797B27B-A9A2-3C6E-3CA20AEDE7095FE0 Late last month, the Department of Energy proposed long overdue energy efficiency standards for commercial refrigeration units. The rules, which had been held up at OMB's Office of Information and Regulatory Affairs (OIRA) for almost two years will result in savings of over $28 billion for businesses over the next 30 years and reductions in carbon emissions of 350 million tons over the same period. As we've discussed numerous times, rules are required by executive order to be reviewed by OIRA for no longer than 120 days. And OIRA routinely hangs onto them for months and frequently years. Recently, a rule to green federal office building just hit the two-year mark at OIRA. So what's happened in the past two years to slow down the progress of these two rules along with the other energy efficiency standards stuck at OIRA? After all, back in 2009, former Energy Secretary Steven Chu described energy efficiency standards as not just low hanging fruit, but "fruit lying on the ground." Savings for industry and consumers as well as reducing the burden of greenhouse gases on the environment seems like a no-brainer to anyone with common sense. But then, there are always House Republicans. Just this past summer, Rep. Marsha Blackburn (R-TN) waged a war against ceiling fans. That's right, she tacked on an amendment to the Energy and Water spending bill to stop a DOE rulemaking process to review ceiling fan standards mandated by Congress itself. Feverish and kneejerk anti-regulatory efforts like these have unfortunately taken off in recent years in spite of past bipartisan support for energy efficiency and in many cases, industry enthusiasm for moving forward. Mon, 09 Sep 2013 14:41:09 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=03CFAE71-A1B9-8034-B02DF7F94035F131 http://www.progressivereform.org/CPRBlog.cfm?idBlog=03CFAE71-A1B9-8034-B02DF7F94035F131 Center for Progressive Reform Member Scholar and University of Texas School of Law professor David Adelman has written an article for theIndiana Law Journal entitled,"The Collective Origins of Toxic Air Pollution: Implications for Greenhouse Gas Trading and Toxic Hotspots." According to the abstract: This Article presents the first synthesis of geospatial data on toxic air pollution in the United States. Contrary to conventional views, the data show that vehicles and small stationary sources emit a majority of the air toxics nationally. Industrial sources, by contrast, rarely account for more than ten percent of cumulative cancer risks from all outdoor sources of air toxics. This pattern spans multiple spatial scales, ranging from census tracts to the nation as a whole. However, it is most pronounced in metropolitan areas, which have the lowest air quality and are home to eighty percent of the U.S. population. The secondary status of industrial facilities as sources of air toxics has important implications for the current debate over cap-and-trade regulation - the policy instrument of choice for controlling greenhouse gas (GHG) emissions responsible for climate change. Environmental justice advocates have opposed GHG trading in significant part because it could exacerbate inequitable exposures to toxic co-pollutants, not GHGs themselves, in minority and low-income communities. The likelihood of such disparities occurring has remained an open empirical question. The geospatial data reveal that, apart from a few readily identifiable census tracts, the potential for GHG trading to cause toxic hotspots is extremely low. Moreover, for the few jurisdictions in which disparities cannot be ruled out, targeted policies exist to prevent them without compromising market efficiency. The article can be read in full here and prompted responses from CPR Member Scholars Dave Owen and Alice Kaswan. Mon, 09 Sep 2013 13:50:22 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=038A3F37-D3A2-A0D1-76F82188D1718EFD http://www.progressivereform.org/CPRBlog.cfm?idBlog=038A3F37-D3A2-A0D1-76F82188D1718EFD For years, environmental activists have worried that emissions trading systems will create "hot spots." The fear, in a nutshell, is that even if the trading system succeeds in reducing overall levels of pollutants, pollution levels in areas with lots of emissions purchasers will rise. It seems quite plausible to anticipate that the areas seeing increases will contain concentrations of older industrial facilities, and it seems equally plausible, based on years of environmental justice studies, to anticipate that those older facilities are more likely to be located in minority communities. Trading systems therefore seem to threaten environmental justice. Those fears played a central role in recent litigation over AB 32, California's landmark climate change law. Environmental justice groups challenged the law, arguing that its trading system would concentrate greenhouse gas emissions in lower-income minority communities. While most GHG emissions are not toxic, and hot spots of GHG emissions would not themselves be a health issue, the activists feared spikes in associated emissions of toxic pollutants. A recent article by David Adelman ought to allay those concerns. Adelman analyzed several national EPA databases on toxic emissions, and he discovered that even if industrial facilities do operate primarily as buyers in GHG emissions trading markets, they aren't likely to create toxic hot spots. The basic reason is straightforward: industrial facilities actually emit a relatively small share of toxic emissions, and the real driver of hot spot formation is the distribution and activity of mobile sources. In other words, it's the tailpipes, not the smokestacks that matter most. Here's a key passage that summarizes the findings and their implications: The secondary status of industrial facilities as sources of toxic emissions has particular relevance to concerns about GHG-trading regimes. A simple calculation illustrates this point: If industrial sources account for roughly ten percent of cancer risks from air toxics, as they do in many industrialized census tracts in Los Angeles, then a drop of twenty percent in toxic emissions from industrial sources would cause at most a two percent decline in cumulative cancer risks. This ten-fold factor limits the potential for inequities to arise at the scale of a census tract or county. Other factors, both economic and technical, reinforce this limit on inequities originating from GHG trading by industrial facilities. These findings suggest that a tradeoff often presumed between efficiency and equity will rarely exist for GHG-trading regimes in the United States, and that, where inequities are a potential concern, targeted policies could be adopted to mitigate them without compromising market efficiency. And in closing: It is my hope that the EPA data and preceding analysis will assuage concerns that toxic hotspots will be an unavoidable and substantial byproduct of implementing a national GHG trading regime. More broadly, I hope that this work will lower health-equity concerns about market-based regulations generally-including taxes. Adelman's article is filled with careful discussion of the strengths and weaknesses of the databases he uses and the limitations of his methodology. Nevertheless, his conclusions seem powerful. The article is well worth reading. This blog is cross-posted on the Environmental Law Prof Blog. Mon, 09 Sep 2013 13:49:49 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=038DB848-DF25-F355-B393E743287B1962 http://www.progressivereform.org/CPRBlog.cfm?idBlog=038DB848-DF25-F355-B393E743287B1962 I agree with David Owen's recent blog post that David Adelman's article, The Collective Origins of Toxic Air Pollution: Implications for Greenhouse Gas Trading and Toxic Hotspots, makes significant contributions to our awareness of the sources of toxic pollution and our collective responsibility for reducing emissions. He focuses on the distributional implications of GHG trading for associated co-pollutants, addressing two important environmental justice issues: the extent to which its impacts on industrial emissions could lead to changes in relative levels of toxic emissions, and the extent to which a GHG trading program could exacerbate racial disparities. He focuses on the degree to which a trading program would cause industrial hotspots or racial disparities, and his analysis shows that a GHG trading program for industrial sources would, in most instances, not play a substantial role in causing either of these consequences, largely because mobile and nonpoint sources are the primary cause of most air toxics hotspots. Those observations are important to the debate about a GHG trading program's distributional implications for toxics hotspots. I write to add one additional consideration to the analysis: a GHG trading program's implications for cumulative pollution levels. Even if a GHG trading program would not cause an industrial hotspot - would not substantially change relative air toxics levels -- the value of small changes in cumulative pollution is also relevant to the larger debate over a GHG trading program's impacts on air toxics hotspots. I start by acknowledging Adelman's valuable insights about industry's relative role in air toxics pollution. Because Adelman's concern is the role of industry in creating hotspots, his definition of hotspots focuses on industry's absolute and relative contribution to air toxics pollution. He defines a countywide industrial hotspot by industry's absolute contribution: a county is considered an industrial hotspot if industry contributes a cancer risk greater than 10 per million. He defines a census tract industrial hotspot where industry's absolute contribution to cancer risk exceeds 20 per million and industry's relative contribution is at least 30% of total air toxics emissions. Using this definition, industrial hotspots are relatively rare: nationwide, only 12 counties and 240 census tracts (out of 65,000 census tracts) are industrial hotspots of air toxics. Nationwide, mobile and nonpoint sources, not industry, are primarily responsible for air toxics pollution. (As Adelman observes, the same is not true for all criteria pollutants; energy facilities significantly contribute to sulfur dioxide emissions and, to a somewhat lesser extent, to nitrogen oxide emissions. But this blog, like his article, focuses primarily on air toxics, not criteria pollutants.) Mon, 09 Sep 2013 13:43:55 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=038F9D48-C60E-14A7-E161BD89C2256287 http://www.progressivereform.org/CPRBlog.cfm?idBlog=038F9D48-C60E-14A7-E161BD89C2256287 We've often written in this space about the Obama Administration's very bad idea to take federal inspectors of the line at poultry processing plants, leaving the discovery of blood, guts, and feathers on the carcasses to overworked and underpaid line workers forced to process as many as 70 birds per minute at the average plant. The U.S. Department of Agriculture (USDA) is the architect of this proposal to "modernize" the food safety system without requiring a single additional test to make sure the birds are not infested with salmonella, campylobacter, and other bad bugs. Confirming the rule's primary role as a windfall for the poultry industry, USDA's initial cost-benefit analysis indicated that it would save companies like Holly Farm, Tyson's, and Perdue $250 million annually. That windfall is attributable to the fact that under the proposal, the line speed will at least double, to as many as 175 birds per minute. Today, GAO released a report that further discredits this bad idea, confirming the dire warnings of food safety experts: USDA is relying on junk data from a pilot program, raising the strong possibility that any final rule won't survive judicial review. This rule is so controversial that it will almost certainly be challenged in court. When it is, it will be reviewed under the Administrative Procedure Act's arbitrary and capricious standard, and USDA is running the risk that a judge will find the agency's shoddy analysis fails to meet the standards of quality demanded by the Administrative Procedure Act (APA). Wed, 04 Sep 2013 15:50:49 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EA4F57F3-C84F-2949-E3ED3ADC3143406C http://www.progressivereform.org/CPRBlog.cfm?idBlog=EA4F57F3-C84F-2949-E3ED3ADC3143406C Last week, the Court of Appeals of Texas, Fourth District handed down Bragg v. Edwards Aquifer Authority, a decision that anyone interested in takings or water law ought to read (the Lexis cite is 2013 Tex. App. LEXIS 10838). The Braggs had brought a takings claim alleging that the Edwards Aquifer Authority's regulatory restrictions on the Braggs' groundwater use amounted to a regulatory taking. The appellate court agreed and remanded for an assessment of damages. But I suspect - and hope - the case will first be appealed to the Texas Supreme Court. It is a deeply flawed and harmful decision with mistakes that additional appellate review hopefully will fix. Understanding those problems requires a little bit of factual context. The Edwards Aquifer is a large and highly productive aquifer in central Texas. It provides an important source of water for municipal and agricultural users, and its discharges support vibrant ecosystems, several of which contain unique and threatened or endangered species. But those competing uses came into stark conflict, and in the mid-1990s the Texas Legislature responded by creating the Edwards Aquifer Authority and charging it with regulating water withdrawals (for articles on that history, see here and here). In 1979 and 1983, years before the Edwards Aquifer Authority's regulatory scheme went into effect, the Braggs bought two parcels of land with the intention of growing pecans. Initially, their water needs were modest; young pecan trees are small and do not require much water. But as the trees grew, the Braggs sought regulatory authorization to increase their water use. The Edwards Aquifer Authority authorized a lower level of use than the Braggs wanted (according to the Braggs, the limits rendered their farming operation economically inoperable), and the Braggs sued, alleging a taking. The trial court ruled in their favor, and the current appeal followed. Before getting to the problems with the court's decision, it's worth noting a few things the court did right. First, the court analyzed the Bragg's claims using the regulatory takings analytical framework set forth in Penn Central Transportation Co. v. New York City, 438 U.S. 104 (1978). The appropriateness of that analytical framework for this case might seem obvious, but in recent years some takings advocates have argued - on rare occasions successfully - that regulatory restrictions on water rights should be analyzed as potential physical takings. The Bragg court appropriately avoided that path. Additionally, I have no quibble with the court's application of the nature-of-the-government-action prong of the Penn Central analysis. The court wrote that "[g]iven the importance of 'protecting terrestrial and aquatic life, domestic and municipal water suppliers, the operation of existing industries, and economic development of the state,' we conclude this factor weighs heavily against a finding of a compensable taking." That seems rather sensible. Tue, 03 Sep 2013 15:21:05 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E50E1EF9-E980-AFA4-BFB229A2C34FBCE1 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E50E1EF9-E980-AFA4-BFB229A2C34FBCE1 No week seems to go by without an imbalanced attack on regulatory protections by a trade association, a "think-tank," a member of Congress, or a journalist. These attacks frequently feature a reference to the growth in the Code of Federal Regulations, even though it is a meaningless measure of whether we're overregulated. In offering another bill to diminish regulation, Sen. Angus King, for example wrote last week that, "According to a recent study by the Progressive Policy Institute, the number of pages of federal regulations has increased by 138 percent since 1975, from 71,224 pages to 163,301 in 2011." That might sound like a lot of pages, but if you're not using methylene chloride, polyvinyl chloride or hexavalent chromium, the hundreds of pages devoted to regulating those chemicals have no effect on you or your business. The same goes for IRS transfer pricing regulations, the Department of Agriculture's beef slaughtering regulations, or OSHA's crane safety regulations. No one in a small retail business, the tourism industry, or Maine's lobster industry cares about or need worry about any of them. Like most of his colleagues, Sen. King denounces "excessive and unnecessary regulations" without identifying examples. If he has a legitimate example, he should let the secretary of the appropriate agency know about it, or work to repeal it legislatively. Instead, he and his colleague, Sen. Roy Blunt, propose the creation of a 9 member commission that would identify regulations "in need of streamlining or repeal." The commission would report their recommendations to Congress in the form of a bill that would be "fast-tracked" (protected from many of the normal motions and procedures) and that could not be amended. This proposal is flawed in a number of ways. First, the proposal does not specify who the commission would enlist to do the necessary cost-benefit analyses, paperwork analyses, etc. The bill provides no authorization of funding and gives no clue as to how many staff would be employed, what their expertise would be, how they would be paid, or what resources would be given to them. It is not clear that they would even be federal employees. Would the staff be supplied by the regulated industries or the Chamber of Commerce? Wed, 28 Aug 2013 14:30:01 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C5F945E3-AEEA-D065-F465630C1872F385 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C5F945E3-AEEA-D065-F465630C1872F385 In January of this year, the Food & Drug Administration proposed a rule on produce safety, as required by the 2011 Food Safety Modernization Act (FSMA). The rule would establish comprehensive standards designed to prevent foodborne illnesses linked to fruits, vegetables, and nuts - like the ongoing Cyclospora outbreak that has sickened 630 people so far, or the 159 cases of Hepatitis A caused by imported pomegranate seeds. Sofie Miller and Cassidy West, two analysts from the George Washington University Regulatory Studies Center (RSC) recently filed acomment on the FDA's proposal, recommending a number of changes that would leave gaping holes in the rule's protections. (A little background: the RSC was founded in 2009 with an initial grant from the right-leaning, anti-regulation Searle Freedom Trust, although that fact is no longer disclosed on their website, nor do the commenters explain which - if any - stakeholders they represent.) Probably because their analysis is not grounded in the real-world concerns of anyone actually affected by the rule, the RSC analysts tinker with its design as if they were bookkeepers balancing a ledger, rather than stopping to consider what those numbers really mean for public health. Applying rigid cost-benefit analysis, they seem to look for ways to minimize how much the rule would improve public health, making it easier to argue that its costs are excessive. Tue, 27 Aug 2013 14:36:20 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C0D806E5-BCB5-1F71-5674AC0DE979A7D4 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C0D806E5-BCB5-1F71-5674AC0DE979A7D4 In 2005, the City of Austin discovered that coal-tar based asphalt sealant was killing the highly endangered Barton Springs salamander. The sealant was leaching off freshly sealed parking lots and entering downstream pools where these fragile animals live. The surprise ending to the City's detective work was not only that the sealant was gradually destroying its river system but also that other asphalt sealants were far safer. More specifically, when the City investigated the market, it learned that there were other sealants that were vastly less toxic, identically effective, sold at the same price, and in some cases were made by the same company. The EPA and the Consumer Product Safety Commission did nothing in response to this discovery, so the City of Austin passed an ordinance to ban the use of the highly toxic variant of asphalt sealant. Home Depot followed the City's lead and no longer carries the sealant on their shelves. Green chemists tell me there are many stories like this one. The news is filled with examples of end products that should have never come to market if toxicity were factored into the equation. Corrosive hair permanents, toxic drywall, and cancerous air fresheners all replay the same theme - the market is glutted with duplicate products that are unnecessarily hazardous. Consumers can't run toxicity tests on every product that they buy, and if regulators don't demand this testing and analyze it, ignorance - for the manufacturers - is bliss. The regulatory statutes governing these products and the chemicals that are used to produce them do not require agencies to cull out these useless toxic products that would be outcompeted by greener products. In fact, the design of our current regulatory statutes impedes the ability of the agency to find and regulate the unnecessarily toxic products and chemicals. Under current laws, to ban a hazardous chemical that is both more toxic and less useful than a competitor, an agency must generally conduct a full-scale assessment of all of the risks of the chemical to man, the environment, and workers who produce it and balance those against the uses, sales, and other data about the chemical. The availability of safer products - used for the same purpose -- is arguably besides the point under our current regulatory program unless the agency decides that the chemical needs to be banned, or as one court put it, subjected to the "death penalty." While most of these disappointing statutes focus on the regulation of end products, one statute - the Toxic Substances Control Act - actually addresses the underlying, individual chemical ingredients themselves. The hope is that by eliminating unreasonably unsafe chemicals, we can improve many of the end products. The problem is that TSCA is similarly weak in that the EPA must first prove that a chemical is unsafe as opposed to chemical manufacturers first demonstrating that their products are safe and non-toxic. The Agency must prove that a chemical contains an "unreasonable risk" before regulating it at all. In effect, public health takes a back seat to the imperatives of industry and greener chemicals are often ignored and overlooked as marketable solutions. Mon, 26 Aug 2013 16:33:23 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BC1D22D1-F258-2CC0-EAFFE4C17F73742C http://www.progressivereform.org/CPRBlog.cfm?idBlog=BC1D22D1-F258-2CC0-EAFFE4C17F73742C After more than two years of White House review, OSHA has finally published its proposed new standards for silica exposure. Secretary of Labor Tom Perez, Assistant Secretary David Michaels, and many other people both inside and outside the agency deserve congratulations for finally shaking the proposal loose from the clutches of the president's regulatory review team in OMB's Office of Information and Regulatory Affairs. The publication of the proposal is an important step towards protecting millions of Americans who are exposed to the deadly dust in their workplaces. But this is no time for the agency to rest on its laurels. As GAO noted in a recent report, OSHA proposals published in the 2000s took an average of three years to reach the "final rule" stage. If it takes that long to publish the final silica rule, it will be in jeopardy of falling prey to election-year politics. The Obama administration's regulatory agencies published fewer final rules in 2012 than the agencies published in any of the prior 15 years. (Thanks to Curtis Copeland for this analysis.) It is incumbent upon Secretary Perez, Assistant Secretary Michaels, and their entire team to keep this rule moving along expeditiously. That means no extensions of the comment periods, efficient management of the rulemaking hearings, and a hardline stance against the White House's regulatory review team, which has a history of holding up this rule. Today marks an important step forward for workers, but the finish line is a long way off. Fri, 23 Aug 2013 16:36:59 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=ACACEDF4-9BFB-F8D4-4F9296CD4A2448BB http://www.progressivereform.org/CPRBlog.cfm?idBlog=ACACEDF4-9BFB-F8D4-4F9296CD4A2448BB Yesterday, The Hill published an opinion piece by Center for Progressive Reform President Rena Steinzor entitled, "Regulatory backlog threatens health and the environment." According to Steinzor: Opponents of regulation also seek to undermine the very legitimacy of agency rulemaking by fostering public hostility toward government and belittling life-saving regulation as "red tape." What results is the gross politicization of the regulatory process, resulting in long delays and weaker rules, as measured in lives and health. For example, the cost of the recent eight-month delay of the EPA's ozone rule is projected to be somewhere between 1,000 and 2,867 premature deaths. The simple truth is that cries of "over-regulation" from industry and its allies in Congress are hooey. Having lost pitched battles in Congress over adoption of various environmental, health, and safety laws, they're simply re-litigating their case, hoping to undermine the rules that breathe life into laws they opposed in the first place. More broadly, they're trying to intimidate the administration from aggressively pursuing the only course that congressional gridlock leaves open to it to address climate change, air pollution, water pollution, unsafe working conditions, and more. We can only hope the administration doesn't fall for it. Fri, 23 Aug 2013 11:42:47 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AB9F1C37-01D3-0813-577470A079CC94F2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AB9F1C37-01D3-0813-577470A079CC94F2 On Thursday, August 22, CPR Member Scholar Robert R.M. Verchick will testify before California's "Little Hoover Commission" about land-use planning to address the threat of climate change. The Commission is conducting a study of climate-change-adaptation efforts in the state, and Verchick, a professor at the Loyola University New Orleans College of Law and a former EPA official, will bring his expertise in environmental regulation, climate change adaptation and disaster law to the table. We'll post his testimony to our website on Thursday, here. But you can also watch the session live. It'll be streamed at http://www.calchannel.com/. (Look for a link to the Little Hoover Commission.) The panel begins at 10:30 Pacific Time (1:30 ET). Wed, 21 Aug 2013 17:11:18 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A2808EA6-04F3-A6CE-A06541D5A1EEA4CD http://www.progressivereform.org/CPRBlog.cfm?idBlog=A2808EA6-04F3-A6CE-A06541D5A1EEA4CD Like no other mammoth corporation that did very bad things - not Enron, not WorldCom, not Exxon, and not even HSBC (which, after all, laundered money for the Mexican drug cartel and was allowed to pay a fine without pleading guilty!) - BP has not lost its arrogant swagger. In a fit of high dudgeon it filed a lawsuit last week challenging the one step the federal government has taken that could actually hurt the company over the long run: the long-overdue debarment of this chronic scofflaw from receiving contracts to supply fuel to the U.S. military. Despite the semi-hysterical, every-argument-known-to-humans tone of its 127-page legal filing, Bob Dudley, BP's chief executive officer, has been blithe about the effect of the debarment on its bottom line: "We have largest acreage position in Gulf of Mexico, more than 700 blocks...that's plenty, we have a lot (sic)," he told the Telegraph, a British newspaper, in July. "We have been debarred from supplying fuel to the U.S. military going forward but quite frankly we have a very big business in the U.S. and this is not distracting us from what we do." The Clean Water Act authorizes the Environmental Protection Agency (EPA) to debar companies that are not "responsible" from doing business with the government. Other provisions of federal law give the Pentagon the same authority but it could not be bothered to find a different fuel supplier even after the Deepwater Horizon explosion killed 11 and devastated the Gulf of Mexico. Showing itself once again to be one of the last feisty entities left in government, and after contemplating just such an action since 2005, EPA debarred BP in November 2012, just a few short months before the company pled guilty to manslaughter, a slew of environmental crimes, and - just for good measure--lying to Congress. It paid a $4 billion fine - the largest in history but Dudley is apparently still smiling. The term "scofflaw" should not, of course, be used lightly. For those who need a little boning up on BP's recidivist history, consider the following and let's ask ourselves whether we might have avoided the entire Deepwater Horizon horror had EPA been allowed to debar the company back in 2005. Mon, 19 Aug 2013 12:14:13 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=97238471-EE61-040D-25E822539EFDE49F http://www.progressivereform.org/CPRBlog.cfm?idBlog=97238471-EE61-040D-25E822539EFDE49F This blog is cross-posted on The Nature of Cities. In my first blog post for The Nature of Cities, I wrote about environmental justice as a bridge between traditional environmentalism and an increasingly urban global population. I suggested that we had work to do to makes environmental concerns salient to a new, ever-more urban generation. Since then, I have been working to test this hypothesis. To that end, I developed an environmental justice education project being implemented in New York City schools. This project is built around Mayah's Lot, the environmental justice comic book I co-wrote with artist Charlie LaGreca for the CUNY Center for Urban Environmental Reform (CUER). Funding for the project came from the CUNY Law School Innovation Fund. You can read the book here, and watch the video here. (Full-disclosure, I am the founding director of CUER, and the Center's mission in many ways mirrors my own - connecting scholarly research with social change advocacy, particularly around issues of environmental democracy and community empowerment.) Why environmental justice? Thu, 15 Aug 2013 14:19:08 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=82FB0FF5-ABE3-8BF8-CEA31ADFA358F01D http://www.progressivereform.org/CPRBlog.cfm?idBlog=82FB0FF5-ABE3-8BF8-CEA31ADFA358F01D More than 400 inspectors with the USDA's Food Safety Inspection Service (FSIS) worked, on average, more than 120 hours each two-week pay period. Those were the findings of the agency's Inspector General in an report issued late last month. Their investigation covered FY 2012, and included field work conducted from November 2012 through February 2013. FSIS inspectors are assigned to more than 6,000 meat, poultry and egg processing plants in the U.S. They are responsible for ensuring that the product sold by companies to consumers is safe and wholesome. These firms process tens of billions of red meat and poultry annually. With some USDA inspectors working many hours of overtime - not just a couple hours per week, but an average of 20 extra hours each week - can their senses stay sharp and can they do their jobs effectively? The IG mentioned that overworked employees are more likely to commit errors. They noted: "Our analysis showed that one inspector averaged 179 hours, three inspectors averaged over 160 hours, and 14 averaged over 150 hours. When OIG brought this issue to the attention of FSIS officials, they stated that they were unaware of this fact, and doubted that this extended overtime would negatively affect the agency's inspectors." Funny how an organization that calls itself a public health agency, has such little understanding about how the work environment affects people's health, safety, and performance. We've written before about USDA's insistence that its proposed rule to increase production line speeds in poultry processing plants won't affect workers' health. Their perspective runs counter to the findings of researchers who've studied musculoskeletal disorders among poultry plant workers. USDA insists that running production lines at as fast as 175 birds per minute will not take a physical toll on poultry-processing workers, and excessive overtime does not "negatively affect" inspectors. Tue, 13 Aug 2013 12:12:48 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=783C0B1A-08D8-FCE3-2E0B6B12562971CC http://www.progressivereform.org/CPRBlog.cfm?idBlog=783C0B1A-08D8-FCE3-2E0B6B12562971CC Last week, Regulatory Czar Howard Shelanski embarked on his maiden voyage into the glamorous world of White House blogging, penning a post that touts the latest burden-reducing accomplishment of President Obama's dubious regulatory "look-back" initiative. On this auspicious occasion, he trumpets the Department of Transportation's (DOT) proposed rulemaking to reduce the number of inspection reports that commercial truck drivers have to file, resulting in reduced paperwork burden costs to the tune of $1.7 billion annually. Shelanski makes clear in the post that this DOT rulemaking is not an isolated incident, but is in fact part of the regulatory look-back initiative's broader antiregulatory project. He explains that the initiative is necessary because "some regulations that were well crafted when first issued can become unnecessary over time as conditions change - and regulations that aren't providing real benefits to society need to be streamlined, modified, or repealed." (Emphasis mine) In case the look-back's antiregulatory objective wasn't clear enough the first time around, Shelanski states emphatically at the end of the post: "This Administration will expand and further institutionalize our regulatory look-back efforts to ensure that we continue to identify rules that need to be modified, streamlined, or repealed." (Emphasis mine again) I've got a serious bone to pick with Shelansk's three-part formulation of the look-back initiative's goals ("streamline," "modify," "repeal"), and it's this: The clear language of Executive Order 13563 - which lays the initiative's groundwork - reveals that Shelanski is deliberately overlooking a fourth stated goal - to "expand" existing rules where appropriate - which, not incidentally, is all that provides the look-back process with any semblance of balance. It's right there in Section 6 of the order: ". . . agencies shall consider how best to promote retrospective analysis of rules that may be outmoded, ineffective, insufficient, or excessively burdensome, and to modify, streamline, expand, or repeal them in accordance with what has been learned." (Emphasis mine yet again) See for yourself. I'll wait. Mon, 12 Aug 2013 16:13:06 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=73F1EA8F-BEE5-4D23-CDB281E42FEACBD2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=73F1EA8F-BEE5-4D23-CDB281E42FEACBD2 A Nebraskan activist? Wait, you say, isn't that an oxymoron? But the typically stoic, non-litigious citizens of Nebraska are indeed standing up and taking notice, and the nation is starting to take notice of them. A few days ago, a Washington Post headline predicted, "Nebraska trial could delay Keystone XL pipeline." As you may already know from the news and my previous blogs, the State Department released a draft supplemental environmental impact statement (EIS) on the pipeline in March. It initiated this supplemental review to take into account a revised pipeline route through Nebraska (around 200 miles of the pipeline's 1,179-mile route would be situated there). The draft EIS concluded that Alberta's oil sands would be developed with or without Keystone XL; as such, it indicated that the pipeline's impacts on greenhouse gas emissions and climate change would be minimal. The Environmental Protection Agency's comments on the draft EIS are extremely critical of its analysis of the project's effect on climate change. The Agency also highlighted the State Department's failure to consider alternative routes that avoid critical water resources, such as the Ogallala High Plains aquifer, in Nebraska and surrounding states. President Obama stated that he would reject the pipeline if it would "significantly exacerbate" GHGs. The President has also expressed concern that the pipeline would do little to stimulate the economy or create jobs. Ironically, the economic impact on the Midwest could be negative - the pipeline, which is designed to move crude oil to Gulf Coast refineries and then on to world markets, could actually make gas prices in the Midwest go up. So, the Midwest would get all of the downsides and few of the advantages if the pipeline were built. The State Department's final EIS, and the final decision by the President and Secretary John Kerry, is expected this fall. Meanwhile, events in Nebraska are taking on a life of their own. A lawsuit filed by Nebraskan ranchers and a grassroots organization, Bold Nebraska, is pending in state court (Thompson v. Heineman, Neb. Dist. Ct., No. CI 12-02060). Earlier this summer, the court rejected the state's motion to dismiss their case, and set a Sept. 27 trial date. The lawsuit alleges that the state legislation that established a new pipeline routing process is unconstitutional under Nebraska law. Instead of having the state regulatory agency - the Public Service Commission - make the routing decision, the legislation allows Nebraska Governor Dave Heineman to approve the pipeline route, which he did earlier this year. His approval also authorized Transcanada's use of eminent domain to condemn private property along its path. The plaintiffs argue that the legislation unlawfully delegated to the Governor both the routing decision and the decision to allow eminent domain, without imposing any substantive safeguards or standards, thereby violating due process requirements. In addition, it's a piece of "special legislation," enacted for the benefit of just one corporation, which violates equal protection principles. Finally, it denies citizens any avenues for meaningful judicial review (other than a constitutional challenge like this one). If the plaintiffs prevail on any one of these arguments, the Nebraska pipeline route would be tossed out, as would the legislation's process for approving new routes. TransCanada would need to seek approval for its route from the Public Service Commission, and it could not exercise eminent domain over houses, farms, and ranches along the way until it had received all necessary approvals and permits. The decision would impact the decision-making process in Washington, DC, too, because the State Department could not issue a final EIS on the impacts of the pipeline when the route across Nebraska remains in doubt. Those who question the need for activists, lawyers, and courts should take note. Litigation may be messy, expensive, and lengthy, and it's an imperfect means of resolving disputes. But it's one of the few effective slingshots that local "Davids" have against a well-heeled international Goliath like TransCanada. Mon, 12 Aug 2013 11:41:49 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=72ED4845-BE13-FED8-D74B847D2C6CCF00 http://www.progressivereform.org/CPRBlog.cfm?idBlog=72ED4845-BE13-FED8-D74B847D2C6CCF00 The following guest post is contributed by Celeste Monforton, DrPH, MPH. Dr. Monforton is an Assistant Research Professor at the George Washington University School of Public Health and Health Services. Finally! After far too much hullabaloo about the cost of regulations, there was a U.S. Senate hearing today on why public health regulations are important, and how delays by Congress and the Administration have serious negative consequences for people's lives. Senator Richard Blumenthal (D-CT) called the hearing entitled "Justice Delayed: The Human Cost of Regulatory Paralysis," the first one conducted by the Senate Judiciary Committee's newly created Subcommittee on Oversight, Federal Rights and Agency Action. The witnesses included a parent-turned advocate for automobile safety, AFL-CIO director of safety and health Peg Seminario, and law professor Rena Steinzor of the Center for Progressive Reform. Steinzor kicked off her testimony with short litany of regulatory successes: "One does not need to look far to see how essential regulations are. Just ask anyone whose life was saved by a seat belt, whose children escaped brain damage because the EPA took lead out of gas, who turns on the faucet knowing the water will be clean, who takes drugs for chronic illness confident the medicine will make them better, who avoided have their hand mangled in machinery on the job because the emergency switch was there to cut off the motor, who has taken their kids to a heritage national park to see a bald eagle that was saved from the brink of extinction - -the list goes on and on." She went on to skewer industry lobbyists for the attacks on EPA's efforts to regulate green house gas emissions, air quality standards, coal ash, stormwater runoff, PBDE's and other chemicals. Steinzor's testimony is punctuated throughout with powerful prose, such as: · [Former EPA Administrator Lisa Jackson] "did not take a trip to the basement of the building where the agency is housed and get drunk on her own whiskey, writing down her best fantasies for torturing industry. Rather, she did her best - at long last - to satisfy congressional mandates instructing her agency to impose more stringent controls on power plants, automobile fuel, boilers, etc." · "The truth is that these rules, and the civil servants who write them, do not sweep industry's hard-earned money into a pile and set it on fire for no good reason. The regulations impose costs, but they also deliver tremendous benefits. Ignoring those benefits has become standard practice in the House of Representatives..." · "Self-rightous crusaders against regulators have become fond of railing against the "costs" that come with regulatory decision-making, but they conveniently ignore the most critical questions: Costs for whom? Industry or the public that suffers from industry's polluting activities? By ignoring this question, opponents of regulation are free to continue pretending that if we dismantled the regulatory system, we would suffer no negative consequences and instead reap a windfall in saved money." Tue, 06 Aug 2013 14:48:27 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=54B9F433-EBD9-77CB-7018C19F2E849845 http://www.progressivereform.org/CPRBlog.cfm?idBlog=54B9F433-EBD9-77CB-7018C19F2E849845 Finally! After far too much hullabaloo about the cost of regulations, there was a U.S. Senate hearing today on why public health regulations are important, and how delays by Congress and the Administration have serious negative consequences for people's lives. Senator Richard Blumenthal (D-CT) called the hearing entitled "Justice Delayed: The Human Cost of Regulatory Paralysis," the first one conducted by the Senate Judiciary Committee's newly created Subcommittee on Oversight, Federal Rights and Agency Action. The witnesses included a parent-turned advocate for automobile safety, AFL-CIO director of safety and health Peg Seminario, and law professor Rena Steinzor of the Center for Progressive Reform. Steinzor kicked off her testimony with a short litany of regulatory successes: "One does not need to look far to see how essential regulations are. Just ask anyone whose life was saved by a seat belt, whose children escaped brain damage because the EPA took lead out of gas, who turns on the faucet knowing the water will be clean, who takes drugs for chronic illness confident the medicine will make them better, who avoided have their hand mangled in machinery on the job because the emergency switch was there to cut off the motor, who has taken their kids to a heritage national park to see a bald eagle that was saved from the brink of extinction - -the list goes on and on." She went on to skewer industry lobbyists for the attacks on EPA's efforts to regulate green house gas emissions, air quality standards, coal ash, stormwater runoff, PBDE's and other chemicals. Steinzor's testimony is punctuated throughout with powerful prose, such as: · [Former EPA Administrator Lisa Jackson] "did not take a trip to the basement of the building where the agency is housed and get drunk on her own whiskey, writing down her best fantasies for torturing industry. Rather, she did her best - at long last - to satisfy congressional mandates instructing her agency to impose more stringent controls on power plants, automobile fuel, boilers, etc." · "The truth is that these rules, and the civil servants who write them, do not sweep industry's hard-earned money into a pile and set it on fire for no good reason. The regulations impose costs, but they also deliver tremendous benefits. Ignoring those benefits has become standard practice in the House of Representatives..." · "Self-rightous crusaders against regulators have become fond of railing against the "costs" that come with regulatory decision-making, but they conveniently ignore the most critical questions: Costs for whom? Industry or the public that suffers from industry's polluting activities? By ignoring this question, opponents of regulation are free to continue pretending that if we dismantled the regulatory system, we would suffer no negative consequences and instead reap a windfall in saved money." Tue, 06 Aug 2013 10:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=59F3236F-D0E1-B239-A8F4420B6EC33D8B http://www.progressivereform.org/CPRBlog.cfm?idBlog=59F3236F-D0E1-B239-A8F4420B6EC33D8B Yesterday President Obama signed an executive order, entitled "Improving Chemical Facility Safety and Security," that is designed to get state, federal and local chemical safety agencies and first responders to improve coordination, information gathering, and regulation with respect to the risks posed by the many highly reactive chemical compounds that are stored and used throughout the United States. Inspired by the tragic explosion of a fertilizer plant in West, Texas on April 17 of this year, the Executive Order establishes a federal working group chaired by Secretaries of Labor and Homeland Security and the Administrator of the Environmental Protection Agency (EPA) and orders the working group to develop a plan to "support and further enable efforts by State regulators, State, local, and tribal emergency responders, chemical facility owners and operators, and local and tribal communities to work together to improve chemical facility safety and security." Coordination and Data Sharing. The Executive Order also addresses the easier question of coordination and data sharing among agencies with responsibility for protecting the public from chemical explosions. Among other things the working group is supposed to: • Identify ways to improve coordination among the Federal Government, first responders, and State, local, and tribal entities • Identify ways to ensure that the various state, local and federal entities with responsibilities for regulating reactive chemicals and reacting to explosions, either accidental or intentional (for example, acts of terrorism) of reactive chemicals "have ready access to key information in a useable format" • Identify areas where joint collaborative programs can be developed or enhanced • Identify opportunities and mechanisms to improve response procedures and to enhance information sharing and collaborative planning between chemical facility owners and operators and the relevant governmental agencies; and • Examine opportunities to improve public access to information about chemical facility risks consistent with national security needs and appropriate protection of confidential business information Fri, 02 Aug 2013 15:28:56 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=40437D1E-E2EE-E69E-676C7B8EB6C73436 http://www.progressivereform.org/CPRBlog.cfm?idBlog=40437D1E-E2EE-E69E-676C7B8EB6C73436 Today, Center for Progressive Reform President Rena Steinzor will testify at a Senate Hearing hosted by the Judiciary Committee entitled "Justice Delayed: the Human Cost of Regulatory Paralysis." Steinzor's testimony can be read in full here. According to the testimony: The subcommittee deserves tremendous credit for airing the truth about the public health regulations that agencies are writing as directed by Congress. The costs of delay are as real as they should be unnecessary, given the clear mandates of the law. Unfortunately, the overwhelming clout of Fortune 100 companies and their relentless, self-serving effort to ignore the great benefits provided by these essential protections has dominated the airwaves. One does not need to look far to see how essential regulations are. Just ask anyone whose life was saved by a seat belt, whose children escaped brain damage because the EPA took lead out of gas, who turns on the faucet knowing the water will be clean, who takes drugs for a chronic illness confident the medicine will make them better, who avoided having their hand mangled in machinery on the job because an emergency switch was there to cut off the motor, who has taken their kids on a trip to a heritage national park to see a bald eagle that was saved from the brink of extinction - the list goes on and on. The EPA's regulations are among the most beneficial safeguards the U.S. regulatory system has ever produced. For example, a 2011 EPA analysis assessing Clean Air Act regulations found that in 2010 these rules saved 164,300 adult lives and prevented 13 million days of work loss and 3.2 million days of school loss due to pollution-related illnesses such as asthma. By 2020, if the rules are issued promptly and Congress resists shrill demands that it derail them yet again, the annual benefits of these rules will include 237,000 adult lives saved as well as the prevention of 17 million work loss days and 5.4 million school loss days. Even the most conservative practitioners of cost-benefit analysis, including John Graham, President Bush's regulatory czar, acknowledge what an amazing bang for the buck these regulations deliver in relationship to the costs they impose. Conversely, because Clean Air Act regulations have been so long delayed - after all, Congress passed the Clean Air Act Amendments in 1990 and we sit here 23 years later - thousands of additional lives have been lost, hundreds of thousands of people have had heart attacks and visited the hospital because of respiratory illness, and people have lost millions of days off work and out of school. Thu, 01 Aug 2013 10:56:35 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3A2A0489-B15E-7EE7-28C0423891ACA798 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3A2A0489-B15E-7EE7-28C0423891ACA798 Tomorrow, a new panel in the Senate Judiciary Committee - the Subcommittee on Oversight, Federal Rights, and Agency Action - will bring some much-need sanity to the discussion of federal regulatory policy when it holds a hearing entitled "Justice Delayed: The Human Cost of Regulatory Paralysis." What's so refreshing about this hearing is that it starts from the premise that blocked and delayed safeguards are a problem that needs to be solved. Crucially, this hearing will provide an opportunity to shine a light on the costs that are imposed on the public when regulations aimed at protecting people and the environment are unnecessarily delayed. These costs represent real harm to real people - and they are by definition preventable. 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These included at least 300 premature deaths from the delay of the National Highway Traffic Safety Administration's (NHTSA) Rearview Mirror Rule and at least 1,000 premature deaths and 1,467 non-fatal heart attacks that would result from the delay of the EPA's updated ozone National Ambient Air Quality Standard (NAAQS). All of these costs are preventable, but not prevented. Several of the scheduled witnesses for tomorrow's Senate Judiciary hearing will help to provide a clear picture of what the costs of regulatory delay entail. CPR President Rena Steinzor will testify about how environmental regulations have benefited the public greatly, and how the continued delay of several pending safeguards - such as the Environmental Protection Agency's (EPA) rules to control disposal of hazardous coal ash waste and to require cleaner-burning automobile fuel - produce great harm. Tomorrow's hearing is a welcome development, because when it comes to the issue of federal regulatory policy, sanity has been in short supply on Capitol Hill for the last four-plus years. And the timing of the hearing couldn't be better, as it takes place during what House Republicans are calling "Stop Government Abuse Week," a week dedicated to bashing public servants and voting on ill-conceived bills, including the REINS Act and the Energy Consumers Relief Act, which if passed, would make it all but impossible for the EPA and other agencies to carry out their congressionally mandated missions of safeguarding the public. Wed, 31 Jul 2013 19:33:48 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=366656C2-9CCB-0EAB-E4C2B1C92A4CB9C8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=366656C2-9CCB-0EAB-E4C2B1C92A4CB9C8 Today, CPR Scholar Tom McGarity is scheduled to testify at a Senate Committee on Environment & Public Works Hearing entitled, "Strengthening Public Health Protections by Addressing Toxic Chemical Threats." His testimony can be found in full here. Below is a blog by McGarity which summarizes his testimony. The Chemical Safety Improvement Act: The Wrong Way to Fix a Broken Federal Statute We live in an era in which human health and the environment are threatened by toxic chemicals that have not been adequately tested and that are subject to a federal regulatory regime that is badly broken. The fact that we do not often read about disease outbreaks caused by toxic chemicals in the newspapers probably stems from the fact that we know so very little about the risks posed by the thousands of synthetic chemicals that we encounter on a daily basis. We are only beginning to learn of the adverse health effects of endocrine disrupting chemicals and various flame-retardants. The impacts of many ubiquitous chemicals on ecosystems are largely unknown. We know, for example, that the Potomac River contains high levels of endocrine disrupting chemicals and that there is an unusually high incidence of "intersex" (male fish exhibiting female characteristics) in smallmouth bass in the river. At the same time, people continue to be e exposed to some chemicals, like the carcinogen formaldehyde, that have well-known adverse effects on human health. There is a federal law in place that is supposed to require manufacturers of chemical substances to conduct adequate toxicity testing and to empower the Environmental Protection Agency (EPA) to ban, phase-out, label, or otherwise regulate chemicals that pose unacceptable risks to human health or the environment. That statute is the Toxic Substances Control Act of 1976 (TSCA). But that statute is severely broken. Congress is considering a bill, referred to as the Chemical Safety Improvement Act, that purports to fix TSCA's problems. Unfortunately, that bill is not likely to be as effective as its supporters think, and it contains two provisions that will make matters affirmatively worse. Wed, 31 Jul 2013 19:23:08 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=31A1E30A-9EAE-C8EB-D6002BD2BA1C3CEE http://www.progressivereform.org/CPRBlog.cfm?idBlog=31A1E30A-9EAE-C8EB-D6002BD2BA1C3CEE Today, Senator Boxer's Environment and Public Works committee will hold a hearing to discuss the best ways to fix the Toxic Substances Control Act (TSCA), the badly outdated law governing some 80,000 chemicals used in commerce in the United States. Communities across the country are not aware of the dangers present in chemicals in everything from baby bottles to face creams, with little to no regulation because of weak TSCA legislation passed over 40 years ago. Strong toxic chemical regulation is needed that protects the rights of consumers to go to court, that strengthens the ability of states to regulate toxics, and streamlines the EPA's process for reviewing chemicals instead of bogging it down with repeated analysis and procedures that focus on the profitability of the chemical industry instead of the health and safety of the public. CPR Board Member Thomas McGarity will testify, and CPR Member Scholar Noah Sachs and I have put together a new Issue Alert that provides some context. TSCA, as interpreted by the courts, puts huge hurdles in EPA's path even when the agency has clear evidence that a chemical poses unreasonable risks to human health or the environment. Hundreds of new chemicals are approved for the market every year before EPA has a full suite of health and safety data, and EPA must overcome significant procedural hurdles before it can mandate additional testing. States have stepped in to fill the enormous regulatory void with a variety of programs, from restricting individual chemicals in specific uses (e.g., bisphenol-A in baby bottles) to expansive labeling schemes (e.g., Proposition 65 in California) to green chemistry and alternatives-analysis programs (e.g., Maine, Minnesota, and Washington programs for "Chemicals of High Concern"). The Senate has two vastly different proposals on the table for dealing with the broken law. S.1009, the Chemical Safety Improvement Act, is a compromise bill that has strong support from the chemical industry. S.696, the Safe Chemicals Act, earned plaudits from environmentalists when it was introduced earlier this year. Our new Issue Alert focuses on the principles for TSCA reform that CPR Member Scholars and staff have identified as most important. It is by no means an exhaustive list, but it underscores the different approaches to TSCA reform that the two bills take. We cover a handful of issues, including: Testing: TSCA creates a "Catch 22" for EPA, requiring that the agency show a chemical may present an unreasonable risk of harm to human health or the environment before it can demand new test data that would help the agency determine whether it can make that case. The provision should be scrapped, and replaced with language that gives EPA broad authority to demand new test data for any reason related to implementation of the Act. Standard of review: The federal courts' crabbed reading of TSCA has left Americans vulnerable to a regulatory system in which chemicals are assumed safe until proven hazardous, and EPA's efforts to make a case to the contrary are stymied by insufficient information and limited authority to regulate. The Issue Alert proposes a novel, competition-based standard of review that would transform the TSCA framework from "anything goes" to "the best of what science can offer," based on the groundbreaking work of CPR Member Scholar Wendy Wagner. Deadlines: Time and again, Congress has gone back to rewrite public health statutes to demand that regulatory agencies take specific actions according to specific schedules. TSCA has never undergone such revisions, which is why the safety of thousands of chemicals has never been reviewed by EPA. It's high time Congress set a schedule for review. Preemption: State legislatures, regulatory agencies, and courts play valuable roles in preventing toxic exposures and ensuring compensation for people who are adversely affected by dangerous chemicals. TSCA must encourage vibrant state action to protect people and the environment by preempting only those laws that make compliance with federal standards impossible. Wed, 31 Jul 2013 08:30:09 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=31CBC1BC-B6D0-9484-562F0DB2C77ECCDC http://www.progressivereform.org/CPRBlog.cfm?idBlog=31CBC1BC-B6D0-9484-562F0DB2C77ECCDC Last week, The Hill published an opinion piece by Center for Progressive Reform Member Rob Verchick. The piece entitled, "Politics and progress: Will the White House stall its own climate change plans?" can be read here. According to Verchick: Under its statutory authority, EPA has ample power to write rules limiting power plant emissions, for example. But since the Reagan administration, all "major" rules - those seen as important to national policy - have been funneled into a little-known process of review, conducted by the White House Office of Information and Regulatory Affairs (OIRA). It may be the most important government office you've never heard of - the depot through which all regulatory freight must pass, the ganglia of the president's rulemaking brain. By executive order, OIRA is required to review submitted agency proposals within 90 days. For the most part, past administrations have kept up the pace. But in the Obama administration, the trains no longer run on time. Of the 136 draft rules under review at OIRA, 72 have been held up for longer than the 90-day limit. Of those, 38 have been stalled for over a year. Nine rules from the Department of Energy have been at OIRA for over two years and deal directly with energy efficiency standards the President himself touted in his 2013 State of the Union address. In his climate address, for example, the President instructed EPA to issue stricter limits on power plant emissions, saying he wanted them by this September. He should have directed that to OIRA, not the EPA, because the EPA had already proposed a package of stricter standards for new coal-fired power plants and submitted it to OIRA in March 2012. Tue, 30 Jul 2013 14:31:17 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=30A2081B-E6A4-AE8B-F4D6DCFD97D7161C http://www.progressivereform.org/CPRBlog.cfm?idBlog=30A2081B-E6A4-AE8B-F4D6DCFD97D7161C Earlier this week, Regulatory Czar Howard Shelanski testified before the House Small Business committee to update committee members on the progress the Obama Administration has made with the regulatory look-back process established by Executive Orders 13563 and 13610. In one interesting exchange with Rep. Blaine Luetkemeyer (R-Mo.), Shelanski offered the following perspective on the Office of Information and Regulatory Affairs' (OIRA) approach to regulatory review: The interpretation of an agency's statute and the choice of policy - to the extent there is discretion under that statute - is in the first instance in the province of the department or agency that is issuing the regulations. OIRA doesn't set policy priorities or do the initial legal interpretations for the agencies. They do that. (Skip ahead the 20:00-minute mark of the hearing.) If true, this statement from Shelanski would represent a dramatic shift in how OIRA sees its role in the rulemaking process. For the past 30 years or so, OIRA has never been shy about trumping agencies on their policy priorities or their choices of policy. Indeed, just a few months before Shelanski took the helm there, OIRA blatantly interfered with the EPA's rulemaking to update the effluent limitation guidelines (ELG) for power plants, as documented in a damning new report by several national environmental groups. The draft proposal that the EPA submitted to OIRA review contained several regulatory "options" for updating the ELG, and among those the EPA identified two of the stronger options - Option 3 and Option 4 - as "preferred." When the proposal emerged from OIRA more than three months later (following several meetings between OIRA and outside groups, including a number with corporate interests opposed to a strong standard), it had been drastically altered. (See the "redline" version showing all the changes that had been made here.) Among the changes, OIRA forced the EPA to include three new weaker options (Options 4a, 3a, and 3b). OIRA also forced the EPA drop Option 4 as a "preferred" option (this was the stronger of the two options that the EPA had initially preferred) and to instead designate all three of the new weaker options it added as "preferred." Fri, 26 Jul 2013 13:52:56 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1BE53ED3-049C-D718-D262EE50D5AA91C8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1BE53ED3-049C-D718-D262EE50D5AA91C8 The U.S. Chemical Safety and Hazard Investigation Board, better known as CSB, is held a meeting today to discuss several recommendations and a newly created "Most Wanted Program." CSB has invited public input, so CPR President Rena Steinzor and I submitted comments to CSB yesterday, urging the agency to target the White House in its advocacy efforts related to the Most Wanted Program. CSB has numerous recommendations that it considers "open" because the target of those recommendations, be it OSHA, another federal agency, a private standards organization like the NFPA, or another target, has yet to implement the recommendation. The recommendations aimed at federal agencies are an especially tricky group, given the realities of the regulatory system. As we've discussed in this space before, OSHA's regulatory efforts have been running up against significant resistance from the White House. A prime example is the proposal to tighten regulations on silica exposure, which has been stuck in the limbo of White House review for over two years. Until the White House decides that improving occupational safety and health is a priority, OSHA's regulatory program will struggle to implement much-needed worker protections and CSB's "Most Wanted" are going to remain at large. Thu, 25 Jul 2013 18:07:30 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=17A8063C-D5CB-A60F-2383B81367D76B50 http://www.progressivereform.org/CPRBlog.cfm?idBlog=17A8063C-D5CB-A60F-2383B81367D76B50 Three years after the EPA proposed a rule to protect communities from coal ash - a byproduct of coal-power generation that's filled with toxic chemicals like arsenic, lead, and mercury - a final rule is still nowhere in sight. Meanwhile, power plants are dumping an additional 94 million tons of it every year into wet-ash ponds and dry landfills that are already filled to capacity. Seemingly untouched by this sense of looming disaster, the Obama Administration continues to dawdle in the face of resistance from the coal industry and perennial attempts from House Republicans to deprive the EPA of its authority over the issue. As the EPA fiddles with new power-plant data and reassesses the rule ad nauseam, the next coal ash catastrophe is waiting to happen. As we examine the wreckage, we'll have to remember how this rule gathered dust on the Administration's desk. A Brief History of a Not-So-Brief Rulemaking Although the EPA has debated whether to regulate coal ash for decades, the issue took on a new urgency after 1.1 billion gallons of ash slurry spilled from a ruptured dam in Kingston, Tennessee in 2008, doing irreversible damage to the surrounding community (but miraculously killing no one). The spill refocused attention not only on unstable ash ponds, but also on the leaching of chemicals into groundwater from unlined or improperly lined waste sites, and the spewing of dry ash into the air. Exposure to the toxic ash can cause cancer, birth defects, and a host of neurological and respiratory disorders, as nearby communities are painfully aware. (See here for a brand-new series of excellent films on coal ash). After Kingston, the EPA promptly drafted a proposal that would regulate coal ash as hazardous waste, setting enforceable, nationwide standards for management and disposal. But before being released, the proposal had to pass through the deregulatory gauntlet of the White House Office of Information and Regulatory Affairs' (OIRA) review process, which went four months beyond its deadline. During that time, industry groups met with OIRA a staggering 33 times, a record even for the heavily lobbied OIRA. They claimed that hazardous-waste regulation would impose a costly "stigma" on the use of recycled ash (in construction and landscaping materials), which would dwarf any benefits to public health and safety. By the time the White House was through with the proposal in June 2010, it had become bloated with weak options that would regulate coal ash as "non-hazardous solid waste," leaving in place a dysfunctional patchwork of state regulations with no federal oversight. The proposal was accompanied by a severely flawed cost-benefit analysis designed to make the weak options look attractive by embracing the industry's unfounded stigma argument. The coal-utility and ash-recycling industries launched a massive lobbying campaign in Congress and in public to further block the rule. The EPA was flooded with 425,000 comments, and the enormous task of sifting through them became part-reason, part-excuse for delaying the final rule - first beyond 2011, then to the end of 2012 or the beginning of 2013, and finally into 2014. Wed, 24 Jul 2013 09:15:38 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=109A8444-BFBB-6891-C205C8277C3118ED http://www.progressivereform.org/CPRBlog.cfm?idBlog=109A8444-BFBB-6891-C205C8277C3118ED Tomorrow, the new OIRA Administrator, Howard Shelanski, will testify before the House Small Business Committee on the results of the government-wide "look-back" at existing regulations. It will be an opportunity for the Committee's Republicans to continue their assault on government programs that keep our food safe, air and water clean, and highways fit for travel. Shelanski could follow in his predecessor's footsteps by trying to assuage the Republicans' fears with glowing statistics about the allegedly huge savings that are expected to flow from revising some old regulations, or he could be more supportive of his fellow public servants and highlight the myriad programs that are working just fine and don't need to be rolled back. Food safety and occupational health advocates are hoping Shelanski will have an opportunity to give an update on a piece of the look-back program that falls somewhere between the extremes: the Department of Agriculture's (USDA) poultry slaughter "modernization" rule. While it is true that the poultry slaughter industry could use some 21st century upgrades to ensure that our chicken and turkey don't arrive at the grocery store with Salmonella, e. coli, and other forms of contamination, the proposal that USDA put out last year is the wrong approach. We've written about the problems with the proposal in this space before. The long and the short of it is that USDA's proposal won't necessarily improve food safety, but it will definitely increase the risk of injury for the folks who work in the plants. The USDA Inspector General reviewed a 15 year-old pilot program in which swine slaughter facilities were granted waivers from current regulations, plant employees were given the responsibility of certain inspection tasks, USDA inspectors were moved off of the slaughter lines, and the line speeds were allowed to increase. Dubbed the HACCP-based Inspection Models Project (HIMP), the program is virtually identical to the proposed poultry inspection rule. The Inspector General's review of the swine HIMP system revealed that 3 of the 10 plants cited with the most NRs [noncompliance records] from FYs 2008 to 2011 were HIMP plants. In fact, the swine plant with the most NRs during this timeframe was a HIMP plant - with nearly 50 percent more NRs than the plant with the next highest number. In a letter today, CPR President Rena Steinzor joined with 28 NGOs and 18 other health and safety experts urging Shelanski to notify USDA that these concerns cannot be addressed without restarting the rulemaking process. Tomorrow would be a great opportunity for Shelanski to say that this part of the look-back process needs another look. Tue, 23 Jul 2013 14:51:29 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0CA76586-F1DC-223F-D39ED17621F9744D http://www.progressivereform.org/CPRBlog.cfm?idBlog=0CA76586-F1DC-223F-D39ED17621F9744D The Senate's grudging confirmation of Tom Perez as Secretary of Labor was the first piece of good news working people have had out of the federal government for quite some time. I know Perez--as a neighbor, a law school colleague, Maryland's labor secretary, and a civil rights prosecutor. He's a fearless, smart, and hard-driving public servant - exactly the qualities that Sen. Mitch McConnell (R-KY) and his caucus deplore in Obama appointees. With luck, Perez will be successful in direct proportion to the unprecedented vitriol Republicans hurled in his path. Their efforts to define a "new normal" for appointees - no one need apply who has ever done or said anything the most rabid member of the Tea Party might dislike - should not distract us from the real challenges confronting Perez within the Administration. The success or failure of Perez's tenure will be decided not by Mitch McConnell, but by a White House whose political operatives have squashed every significant regulatory initiative suggested by the Occupational Safety and Health Administration's (OSHA) star-crossed leader, David Michaels. In fact, so relentless has this punishing counter-campaign been that there now exists the very real possibility that President Barack Obama, who probably owes at least his first-term victory to the hard work of organized labor, will finish eight years in office having promulgated only two rules to address grave threats to worker safety and health. One is the revised Hazard Communication Standard, requiring employers to change the way they notify workers about toxic chemicals in the workplace. The other changed the rules covering use of cranes and derricks in the construction industry, focusing mostly on training, certification, and inspection requirements. The "HazCom" revisions were largely driven by changes to international standards and the cranes and derricks rule was developed through a negotiated rulemaking process during the George W. Bush Administration. So, other than whatever gains the agency may have achieved through enforcement, its rulemaking agenda has almost run off the tracks, and it will take a herculean effort to get it back on. Mon, 22 Jul 2013 13:01:58 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=071D2BCA-A6BE-5BD2-10506BCC3E5AABDC http://www.progressivereform.org/CPRBlog.cfm?idBlog=071D2BCA-A6BE-5BD2-10506BCC3E5AABDC Last month, the U.S. Supreme Court granted certiorari, or review of EME Homer City Generation v. EPA, 696 F.3d 7 (D.C. Cir. 2012), reh'g en banc denied, 2013 WL 656247 (D.C. Cir. Jan. 24, 2013). This is a welcome development, as the D.C. Circuit Court of Appeals got many things wrong in its tossing out of the Cross State Air Pollution Rule (CSPAR), the follow-up to the previously invalidated Clean Air Interstate Rule (CAIR) which regulated potential cross-state air pollution. For example, although an oil refinery one state may meet its own air quality, but not in state nearby where it might be polluting neighboring cities. CSPAR would hold states accountable for their pollution of their neighbors, which the D.C. Circuit Court of Appeals tossed out last year. This case was brought to the D.C. Circuit on consolidated challenges to the EPA's attempt to implement the CSPAR. Basically, the rule and its pieces and subsidiaries were designed to ensure that the states did not cause significant "interference" with "maintenance" of National Ambient Air Quality Standards (NAAQS) in downwind states. (This has also been referred to as the "good neighbor provision," or Section 110(a)(2)(D) of the Clean Air Act). The problem of interstate transport of major air pollutants has become more apparent over the last 15 years, and it has become obvious that many states will never be able to meet the safe levels of air pollution within their own borders without controlling the pollution from other states, which the EPA is required to do. The complexity of the issue and whether and how the EPA will deal with it has been the subject of litigation since 1998. This rulemaking was the culmination of an attempt to create a systematic approach to dealing with the problem. The Court of Appeals held for some of the plaintiff states and industry and overturned CSAPR because: 1) it claimed that the EPA's plan improperly failed to reduce only an upwind state's share of contributions to a downwind state's nonattainment; and 2) the EPA erred in simultaneously implementing a Federal Implementation Plan ("FIP") instead of allowing the states to first propose a State Implementation Plan or SIP that would reduce the EPA-determined significant contribution to downwind states. Mon, 22 Jul 2013 11:38:47 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=06D10E0C-007A-9E64-CC72E2550ECD1226 http://www.progressivereform.org/CPRBlog.cfm?idBlog=06D10E0C-007A-9E64-CC72E2550ECD1226 When you say "small business," most people probably imagine a mom-and-pop corner grocery. Actually, the federal Small Business Administration's concept of small goes well beyond that. For instance, it includes a computer business that does up to $25 million per year in business. A convenience store can do $27 million and still be considered "small," while a grocery store can go up to $30 million. If you're in parts of the financial sector, you can do $175 million in business a year and still be a "small business." In many other areas, the size requirement is set in terms of numbers of employees - usually 500, but sometimes 1000 or more. There are wonderfully detailed sub-categories such as "Motor Vehicle Steering and Suspension Components (except Spring) Manufacturing" and the nostalgia-inducing "Carbon Paper and Inked Ribbon Manufacturing." (Couldn't find a heading for buggy-whip manufacturers, however.) Anyway, each and every one of these businesses is, for some mysterious reason, entitled to the special care and solicitude of the U.S. government. But the Small Business Administration seems remarkably attentive even to firms that exceed even this generous definition of small business. The Office of Advocacy also is willing to go the extra mile for big business groups like the American Chemistry Council. It no longer seems to focus on the special needs of smaller (or maybe I should say "less large") businesses. Instead, studies by the Center for Progressive Reform and the Center for Effective Government shown, the SBA now acts as a mouthpiece for the business community as a whole, often echoing the views of Big Business. For instance, it pressured the EPA not to regulate arsenic, fine particles, and lead emissions from coal power plants. It has also opposed regulations of formaldehyde, styrene, and chromium, as well as arguing that EPA should not regulate greenhouse gases (apparently on grounds that the Supreme Court had already rejected in a previous case). It also shows up at meetings flanked by major corporations like ExxonMobil to argue in favor of watering down regulations. Of course, the business community is entitled to advocate their viewpoints to regulators, and they spend many millions of dollars to do so. But why should the U.S. government hire people to act as back-up lobbyists for the well-funded efforts of the Chamber of Commerce, major trade associations, and Fortune 500 companies? Cross-posted from the environmental law and policy blog Legal Planet. Fri, 19 Jul 2013 08:15:57 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F6A356CF-DF24-784B-C3167D1C0075A345 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F6A356CF-DF24-784B-C3167D1C0075A345 The Senate's confirmation of Gina McCarthy as head of the Environmental Protection Agency is a welcome development and a signal that Congress and the President are willing to get serious about the Agency's role in protecting the health of all Americans and the affects of climate change on the environment. It won't be easy. Lawmakers seem divided on nearly every issue in this debate. In the past EPA's efforts to protect the environment and public health and safety have sometimes been delayed by the White House's own Office of Information and Regulatory Affairs (OIRA). Cutting through such bureaucracy should be on the short list of the new administrator's priorities. Climate change knows no political ideology and it follows its own timeline. Administrator McCarthy is well equipped to meet the challenges we face. We are lucky to have her fighting for us all. Thu, 18 Jul 2013 16:54:10 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F3588433-DAB6-DF61-710EEA97423D9C28 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F3588433-DAB6-DF61-710EEA97423D9C28 One day in May, climate change got a lot more expensive. The price tag on emissions - the value of the damages done by one more ton of CO2 in the air - used to be a mere $25 or so, in today's dollars, according to an anonymous government task force that met in secret in 2009-2010. Now it's $40, according to an anonymous government task force that met in secret in early 2013, Anyone who cares about combating climate change would have to applaud the result: a higher carbon price means that cost-benefit analyses will place a greater value on policies that reduce emissions. And anyone who cares about democracy should be appalled at the process: are we entering an era in which major regulatory decisions are made anonymously, in secret, with no opportunity for review? The work of the anonymous task force is a mixture of sophisticated analysis and really bad, arbitrary choices. Three climate-economic models were each applied to five scenarios (derived from other models), and the 15 results were averaged. No persuasive arguments were presented for the controversial choices of models or scenarios; that's just how the anonymous task force wanted to do it. Lots of people had comments and criticisms after the first round - and in response, the anonymous task force redux changed nothing whatsoever in its methodology. The increase in the estimated cost of emissions is entirely due to revisions in the three chosen models. Most of this year's increase in the U.S. government's social cost of carbon comes from decisions by one modeler, who recently made particularly large changes in his model. This state of affairs is disturbing to two groups of people: fans of democracy and openness; and climate change deniers and fossil fuel apologists. Guess which group is holding a hearing on the subject on Capitol Hill. Wed, 17 Jul 2013 17:16:56 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EE46CA3D-AB54-3778-D1D5C1E5E3FC7015 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EE46CA3D-AB54-3778-D1D5C1E5E3FC7015 Environmentalists know about the Environmental Protection Agency's Water Transfer Rule. See 40 CFR s. 122.3(i). It states in essence that discharging polluted water from one body of water to another unpolluted body of water is not a discharge of a pollutant under the Clean Water Act. According to the EPA, this action would not be regulated by the Act, because no pollutant is being "added" to the "waters of the United States." There may be an addition of a pollutant to a particular body of water, but that is not enough, the EPA says. There must be an addition to the "waters of the United States" as a whole. This is also known as the "unitary waters" approach. This issue has arisen in a number of different cases, perhaps most notably in South Fla. Water Mgmt. Dist. v. Miccosukee Tribe of Indians, 541 U.S. 95 (2004), in which polluted water from canals was being pumped into Lake Okeechobee without a permit. The Supreme Court rendered its decision in that case before the EPA adopted the Rule, although EPA had earlier interpreted the Act informally to the same effect. The Court declined to decide the validity of the EPA's informal interpretation, remanding the case to the lower courts on other grounds. After remand and the EPA's adoption of the Rule, the Eleventh Circuit upheld the transfer, deferring to the EPA's interpretation of the Act under Chevron, USA, Inc. v. NRDC, 467 U.S. 837 (1984). Before the Eleventh Circuit issued its decision, however, environmental groups had filed direct challenges to the Rule in both district and circuit courts. Those cases were stayed pending the decision in the Miccosukee case, and after that decision the circuit court cases were consolidated in the Eleventh Circuit. Inasmuch as the Eleventh Circuit had already ruled on the validity of the Rule, environmental groups argued that the court did not have jurisdiction to hear a direct challenge to the rule and that only district courts had jurisdiction to hear the challenges. If they could divest the Eleventh Circuit of jurisdiction in favor of district courts, then challenges brought in district courts in other circuits might reach a different conclusion as to the validity of the Rule. The EPA, on the other hand, would like the Eleventh Circuit to rule on the case because a favorable outcome to the Agency would be ensured. Wed, 17 Jul 2013 12:52:57 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=ED5518EC-E84F-F750-45DC57EB23CABC94 http://www.progressivereform.org/CPRBlog.cfm?idBlog=ED5518EC-E84F-F750-45DC57EB23CABC94 Last week brought big news in the water quality world. On July 10, American Rivers, the Conservation Law Foundation, the Natural Resources Defense Council, and several other environmental groups filed "residual designation authority" petitions for stormwater discharges across EPA Regions 1 (New England), 3 (mid-Atlantic), and 9 (southwestern states and California). That may sound like an obscure and technical act, but here's why it's actually a very big deal. For years, urban stormwater runoff has been one of the United States' greatest unsolved water quality challenges. Urban runoff is second only to agricultural runoff as a source of water quality impairment, and on a per-acre basis, urban development is generally more damaging to water quality than agricultural use. But EPA has struggled to regulate urban stormwater runoff. For years, EPA barely regulated urban stormwater runoff at all. The 1987 Clean Water Act amendments compelled EPA to act, but even today, many point sources of urban stormwater runoff escape coverage under the National Pollutant Discharge Elimination System. The gaps are particularly salient for areas that are highly developed but lightly populated (shopping malls, for example). These areas generate a lot of polluted runoff, but they generally aren't industrial and therefore escape coverage under the industrial program. They also often lack sufficient population to be included in the municipal permitting program (which covers census tracts based on their population density). Those gaps - and the weak coverage of the many sources that are subject to permitting - have real costs. Water quality impairment now is a pervasive feature of our urban and suburban landscapes. Several years ago, the Conservation Law Foundation (one of the organizations that filed yesterday's petitions) discovered a potential legal remedy for this issue. Buried in the depths of Clean Water Act section 402 is a provision requiring EPA (or a state with delegated permitting authority) to require permits for any stormwater discharge that EPA or the state administrator determines "contributes to a violation of a water quality standard or is a significant contributor of pollutants to waters of the United States." For years, no one had paid any attention to that provision; one industry lawyer later referred to it as "the sleeping giant." But CLF filed RDA petitions in Vermont, Massachusetts, and Maine. Each petition led to major expansions - albeit over relatively small geographic areas - in the scope of Clean Water Act permitting coverage. A few images illustrate the impact of the change. The three images below show the Long Creek watershed in Maine. Tue, 16 Jul 2013 15:14:15 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E8B05084-96DA-326B-C4EB2F81C8098A7C http://www.progressivereform.org/CPRBlog.cfm?idBlog=E8B05084-96DA-326B-C4EB2F81C8098A7C This morning, the House Energy and Commerce Subcommittee is expected to advance the "Energy Consumer Relief Act" for consideration. The Act would allow the head of the Department of Energy to veto any rules promulgated by the EPA with estimated "costs" of over $1 billion. Center for Progressive Reform President Rena Steinzor testified against the bill in April at a Legislative Hearing. Below is Steinzor's reaction to the Committee's movement of the Act: The deceptively named, "Energy Consumer Relief Act" would effectively subsidize billion-dollar energy companies for their contamination of the environment at the expense of consumers suffering with pollution-related diseases like heart disease and asthma. The EPA has repeatedly been hamstrung by a regulatory process focused on cost-benefit analysis that estimates the lives of Americans in dollars and cents. This Act would effectively kneecap the Agency's remaining ability to protect citizens against damaging pollutants. The statutory trigger of $1 billion is designed to be expansive enough so that a if a rule raised energy costs for all households by an average of just $0.87 per year for ten years, it would be subject to a veto by the secretary of the DOE. Our air and water are drastically under-regulated and Congress should be working to reinvigorate the ability of the EPA to protect citizens instead of wasting taxpayers money to debate a bill that would only make them, quite literally, sick. Wed, 10 Jul 2013 09:26:13 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C88B98A6-D132-ACD6-8080D22A1BAA27D8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C88B98A6-D132-ACD6-8080D22A1BAA27D8 "April showers bring May flowers." To that well-known spring-related proverb one might soon add "the Spring Regulatory Agenda brings new groundless complaints from corporate interests and their anti-regulatory allies in Congress about so-called regulatory overreach." Last Wednesday, the Obama Administration issued the 2013 edition of the Spring Regulatory Agenda, one of two documents the President must issue every year (the other is published in the fall) that compiles and summarizes the various regulatory actions that the Administration expects to take in the near future. Over the past few years, regulatory opponents have grown fond of pointing to the Spring and Fall Regulatory Agendas as still further evidence of the so-called "regulatory tsunami" that is allegedly hindering the economy and to support their campaign to "reform" our regulatory system. I expect that these same groups will waste little time in the coming days to misrepresent the latest regulatory agenda to bolster their attacks on our system of regulatory safeguards. In fact, a careful comparison of one Regulatory Agenda to the next reveals just the opposite of what regulatory opponents claim: progress on needed safeguards has all but stalled, as new rules have become subject to new delay upon new delay. Rather than documenting a flurry rulemaking activity, the semiannual Regulatory Agenda has become more of a litany of the latest delays of and extensions to expected timelines for issuing proposals or final rules. Tue, 09 Jul 2013 11:11:52 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C3C57EBD-EF7E-C097-22F325934095F78F http://www.progressivereform.org/CPRBlog.cfm?idBlog=C3C57EBD-EF7E-C097-22F325934095F78F Welcome aboard, Administrator Shelanski. You're already well into your first week on the job as the head of the White House Office of Information and Regulatory Affairs (OIRA). You've already received plenty of valuable advice - during your confirmation hearing and from the pages of this blog, among other places - on how you can transform OIRA's role in the regulatory system so that it's not a continued impediment to effective government. For example, many have urged you to end the pattern of long-overdue reviews at OIRA (at last count, 72 of the 137 rules undergoing review are past the 90-day limit provided for in Executive Order 12866), to improve transparency of OIRA's reviews so that decision-makers can be held publicly accountable for changes they make to pending safeguards, and to restrict the use of cost-benefit analysis as a means for justifying the dilution of safeguards so that they are weaker than what applicable law requires. These practices not only leave the public inadequately protected against unreasonable risks; they also amount to a kind of usurpation of the public will by thwarting the effective and timely implementation of laws enacted through the constitutionally-defined legislative process that is central to our unique republican form of government. Yes, transforming OIRA so that it is not objectively "bad" is an important start. But now I would like to urge you to think bigger and bolder. In particular, I would like you to re-imagine OIRA's role in the regulatory system so that it operates as a positive force for "good." In this new role, OIRA would actively support the efforts of protector agencies - such as the Environmental Protection Agency (EPA) and the Occupational Safety and Health Administration (OSHA) - to achieve the statutory missions that Congress has assigned to them in a vigorous, timely, effective, and wise manner. As you continue to settle into your new job, I encourage you to think about how OIRA can start taking the following affirmative steps: Wed, 03 Jul 2013 13:48:36 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A56F4208-9757-BB55-7F7C42DC021C55D1 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A56F4208-9757-BB55-7F7C42DC021C55D1 Lost among the high-profile opinions that the Supreme Court issued during the past two weeks was a case that attracted little media attention, but is of great importance to the millions of Americans who take generic drugs. Karen Bartlett, a secretary for an insurance company filed the lawsuit against generic drug manufacturer Mutual Pharmaceutical Company. When Karen visited her doctor complaining of shoulder pain, he prescribed Clinoril, one of many non-steroidal anti-inflammatory drugs (NSAID) that are commonly used to treat arthritis, bursitis, and other painful conditions. When Ms. Bartlett's pharmacist filled the prescription, however, he gave her the generic version of the drug sulindac, rather than the brand-name drug. Soon after taking the drug, Ms. Bartlett developed a horrific disease called SJS/TEN, which caused massive burns on over 60-65 percent of her body. For the next year, her life was, in the words of her surgeon, a "hell on earth" as she spent 100 days in five hospitals and several months in a medically induced coma. During this time she was fed by tube, suffered two septic shock episodes, endured twelve eye surgeries, and became legally blind. Although she survived, she is severely disfigured, cannot eat normally due to esophageal burns, cannot have sexual relations, and cannot engage in aerobic activities because of burns to her lungs. In a clear concession that it had made a grave mistake, FDA several months later required manufacturers of all NSAID drugs to include an additional warning on their labels concerning the risk of adverse dermatological effects, including SJS/TEN. But that was too late for Ms. Bartlett. As I related in a previous blog, Ms. Bartlett's attorneys made a powerful case for the proposition that the risks posed by sulindac far outweighed its very modest painkilling benefits and that numerous less dangerous alternatives were available for patients, like Ms. Bartlett, who suffered from shoulder pain. Mutual Pharmaceutical did not put on a single witness to defend its product. Instead, it argued that Ms. Bartlett's claim was impliedly preempted by the Federal Food, Drug and Cosmetics Act (FDCA) as amended by the Drug Price Competition and Patent Term Restoration Act of 1984 (the "Hatch/Waxman Act"). The former statute requires drug manufacturers to obtain FDA approval of their products by demonstrating that they are safe and effective. The latter requires the FDA to approve generic versions of approved drugs upon a showing that the active ingredient in its drug is chemically and biologically equivalent to the active ingredient in the previously approved brand-name drug and that the label is identical to the brand-name label. Tue, 02 Jul 2013 14:54:31 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A085542F-EBFB-B874-7490F88E61CD3D41 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A085542F-EBFB-B874-7490F88E61CD3D41 CPR Member Scholar John Echeverria has an op-ed in Wednesday's New York Times on the Supreme Court's end-of-term decision in a land-use case, Koontz v. St. Johns River Water Management District. Although the case has been somewhat overlooked amidst the Court's evisceration of the Voting Rights Act, and its landmark decisions on same-sex marriage, it has long-term and critical implications. Echeverria warns that the decision will: result in long-lasting harm to America's communities. That's because the ruling creates a perverse incentive for municipal governments to reject applications from developers rather than attempt to negotiate project designs that might advance both public and private goals - and it makes it hard for communities to get property owners to pay to mitigate any environmental damage they may cause. The majority opinion in the case, written by Justice Alito, reverses a ruling by the Florida Supreme Court -- a chain of events with eerie overtones for anyone with a 13-year memory! The ruling blocks a Florida water management district's denial of a developer's application to "fill more than three acres of wetlands in order to build a small shopping center." The district had requested that the builder either reduce the size of the development or make other adjustments to offset the environmental effects of paving over a chunk of Florida's beleaguered wetlands. The developer refused, and thus his application was denied. But the Supremes regarded that as a "taking" that diminished the value of the developer's property. Echeverria writes: Fri, 28 Jun 2013 18:21:03 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8CA910D3-90C8-3FE3-D09797424164AAA8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8CA910D3-90C8-3FE3-D09797424164AAA8 Last night, the Senate confirmed Howard Shelanski as Administrator of the Office of Information and Regulatory Affairs (OIRA) at the Office of Management and Budget. As we've written about before, the confirmation of Shelanski as head of OIRA comes at a criticial juncture. OIRA is tasked with reviewing rules proposed by federal agencies. Presently, of the 139 rules under review at OIRA, 71 are well beyond the 90-day review limit imposed by Executive Order 12866. Below is Center for Progressive Reform Member Scholar Sidney Shapiro's reaction to the confirmation: Now that he's been approved, Administrator Shelanski must begin the critical task of reinvigorating our calcified regulatory system. From clearing the backlog of overdue regulations stuck at OIRA in violation of the required deadline for finishing review to working with other Administration officials to identify ways to help implement President Obama's climate plan, thenew Regulatory Czar has a full plate. Fri, 28 Jun 2013 11:01:05 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8B1614A9-003C-69A9-4630CD795ED01E1F http://www.progressivereform.org/CPRBlog.cfm?idBlog=8B1614A9-003C-69A9-4630CD795ED01E1F Yesterday, The Hill published an opinion piece by Center for Progressive Reform President Rena Steinzor. The piece, entitled, "Toxic chemical bill trumps state rights" can be read here. Steinzor writes: [W]e read with dismay... the drastic provisions of legislation authored by Sens. David Vitter (R-La.) and the late Frank Lautenberg (D-N.J.) deceptively entitled the Chemical Safety "Improvement" Act. This misguided effort to reform the Toxic Substances Control Act (TSCA, pronounced TOSCA like the opera) would make all federal rulemaking "determinative" of toxic chemical exposure limits, thereby freezing in their tracks state efforts to pass standards that are more stringent than what the beleaguered Environmental Protection Agency (EPA) has managed to cough up. Never mind that certain kinds of chemical pollution are far worse in some states than they are at the national level, and forget the notion that democracy is strongest when citizens are closer to government. States would be forced to stand down, to the grave detriment of public health. 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Center for Progressive Reform Member Scholar Lisa Heinzerling issued the following reaction: The President's speech offered exactly what many of us have been waiting to hear from him: A solid commitment to use the tools available to the EPA to finally get the federal government out of slow gear on climate change. In particular, by extending emissions limits to existing power plants, he's taking dead aim at the most severe environmental problem facing the planet. Protests from industry and its allies on the Hill overlook an important reality: The Clean Air Act already gives the EPA authority to adopt such rules, and the Supreme Court has so ruled. Heinzerling is a Professor of Law at Georgetown University. From January 2009 to July 2009, she served as Senior Climate Policy Counsel to the Administrator of the Environmental Protection Agency and then, from July 2009 to December 2010, she served as Associate Administrator of EPA's Office of Policy. Before her EPA service, she was the lead author of the winning briefs in Massachusetts v. EPA, in which the Supreme Court held that the Clean Air Act gives EPA the authority to regulate carbon dioxide emissions. Tue, 25 Jun 2013 16:48:44 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7CE159BF-BB37-7F74-5B03F012F150AE74 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7CE159BF-BB37-7F74-5B03F012F150AE74 Is the annual cost of federal regulation really $1.75 trillion? Do regulations really hinder job creation and economic growth? Is it true that agencies are free to issue costly regulations without legal authority or political accountability? These are just some of the myths spread by supporters of legislation to further weaken the ability of protector agencies, such as the Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), and the Occupational Safety and Health Administration (OSHA), to carry out their congressionally mandated mission of safeguarding the public. The subject will be explored in detail at a congressional briefing on June 25, organized by the Center for Progressive Reform and the Coalition for Sensible Safeguards, and is hosted by Reps. John Conyers (D-MI) and Steve Cohen (D-TN). The briefing is open to the media. What: Congressional Briefing: Anti-Regulatory Myths: What Regulatory Critics Don't Tell You, hosted by Reps. John Conyers, Jr. (D-MI) and Steve Cohen (D-TN) addressing common misconceptions about the impact of federal regulation. When: 10a.m. on Tuesday, June 25, 2013 Where: Room 2237 Rayburn House Office Building. Mon, 24 Jun 2013 14:17:54 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7730E7CB-EBBD-95DE-39BCF56C1C7DC249 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7730E7CB-EBBD-95DE-39BCF56C1C7DC249 About 15 percent of all foods we consume are imported. Looking at some particular categories, the numbers are far more striking: imports make up 91 percent of our seafood, 60 percent of our fruits and vegetables, and 61 percent of our honey. Most of these imports come from developing countries that lack any effective health and safety regulation - like China, which has had a seemingly endless run of food safety scandals and yet supplies 50 percent of our apple juice, 80 percent of our tilapia, and 31 percent of our garlic. Unsanitary practices in these countries are well-documented: Vietnamese farmers are known to send shrimp to America in tubs of ice made from bacteria-infested water; and Mexican laborers are often given filthy bathrooms and no place to wash their hands before gathering onions and grape tomatoes for export. Despite the obvious risks of adulteration and contamination, the resource-strapped Food and Drug Administration (FDA) inspected only 2 percent of food imports and just 0.4 percent of foreign food facilities in 2011. Import-related outbreaks - like the 81 people sickened by Mexican cucumbers just a couple months ago - have become even more frequent in recent years. The foodborne pathogens that make it to our tables often prove deadly for children, the elderly, and those with compromised immune systems. In 2008, after undergoing chemotherapy and radiation, 67-year-old Raul Rivera was told by his oncologist that he would likely survive non-Hodgkin's lymphoma. He celebrated by taking his family out for dinner, where they ate pico de gallo. It was later discovered that the jalapeños in the salsa were imported from a Mexican farm that had used Salmonella-tainted water for irrigation. Rivera died two weeks later, not of cancer but of salmonellosis. In January 2011, President Obama signed the Food Safety Modernization Act (FSMA), a set of sweeping reforms that would be fleshed out in rules issued by the FDA. Two and a half years later, only two proposed rules have been released - one on produce safety standards, and the other on preventive controls for human food. The FDA has drafted three other proposed rules that could significantly improve the safety of imports, but they are currently languishing at the Office of Information and Regulatory Affairs (OIRA), an office inside the White House that is notorious for blocking, weakening, and delaying the rules that it reviews. These three rules, described below, are already many months beyond their statutory deadlines, and OIRA has held them well past the 90-day limit established by Executive Order 12866. Whenever these rules finally emerge, we should be alert to the ways that OIRA may have undermined their effectiveness, just as it substantially weakened the FDA's preventive-controls rule before it was released in February. Fri, 21 Jun 2013 11:38:18 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=672A9D00-B02C-6867-707ABB17E191EF31 http://www.progressivereform.org/CPRBlog.cfm?idBlog=672A9D00-B02C-6867-707ABB17E191EF31 Hot on the heels of a USDA Inspector General's report that highlights the failings of privatizing pork inspection, the House yesterday approved an amendment to the Farm Bill that pressures USDA to institute the same type of system in the poultry slaughter industry. The poultry rule, which we've written about in this space before, is not yet in final form, but the poultry industry and its supporters are pushing it in that direction. The Inspector General's report adds to the growing list of reasons why the USDA should scrap the proposed poultry rule and come up with a better way to modernize food safety inspection programs. The USDA Inspector General reviewed a 15 year-old pilot program in which swine slaughter facilities were granted waivers from current regulations, plant employees were given the responsibility of certain inspection tasks, USDA inspectors were moved off of the slaughter lines, and the line speeds were allowed to increase. Dubbed the HACCP-based Inspection Models Project (HIMP), the program is virtually identical to the pilot HIMP project that was more recently introduced in the poultry slaughter industry. The Inspector General's review of the swine HIMP revealed that 3 of the 10 plants cited with the most NRs [noncompliance records] from FYs 2008 to 2011 were HIMP plants. In fact, the swine plant with the most NRs during this timeframe was a HIMP plant - with nearly 50 percent more NRs than the plant with the next highest number. To make matters worse, the report notes that In the 15 years since the program's inception, FSIS did not critically assess whether the new inspection process had measurably improved food safety at each swine HIMP plant - a key goal of the HIMP program. To a cynic, it may not be surprising that USDA avoided a thorough review of the HIMP program, given the noncompliance history of the swine plants that were part of the program and the agency's goal of making HACCP-based inspection systems permanent in swine and poultry slaughter facilities, alike. To its credit, USDA has completed at least a partial review of the poultry slaughter HIMP, although Food & Water Watch has released reports indicating that USDA's review missed the mark. The Inspector General's report is the second independently researched produced document to raise concerns about the poultry slaughter rule in recent weeks. The other, an interim report from NIOSH about worker safety in a South Carolina poultry slaughter facility, provided evidence of high rates of musculoskeletal problems in plant workers. Those serious health problems are likely linked to the ergonomic hazards of quick and repetitive motion, which would only be exacerbated by the increased line speeds allowed under USDA's proposed rule. The poultry slaughter rule was on the fast track at one point (OIRA's 44-day review was inordinately fast). When public interest advocates raised significant concerns about food safety and threats to workers during the notice-and-comment process, it slowed down. Congressional pressure to speed it back up is misplaced, especially in light of the Inspector General and NIOSH reports. Thu, 20 Jun 2013 13:43:26 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6277DD48-BDE8-E04A-F580D204A068F2D5 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6277DD48-BDE8-E04A-F580D204A068F2D5 It's been more than 30 years since the U.S. Supreme Court declared that water is an article of commerce and that Nebraska's attempts to prevent the export of "its" groundwater to neighboring Colorado violated the dormant Commerce Clause.[1] The high Court did not return directly to the issue until last week's ruling in Tarrant Regional Water District v. Herrmann.[2] [3]This time, a unanimous Court ruled against the would-be exporter - Texas - and its efforts to divert a portion of the Kiamichi River from a point within neighboring Oklahoma. The Court struck a blow to one of Texas' largest water districts, which supplies the exploding populations of the state's north central region including Fort Worth, Arlington, and Mansfield.[4] The ruling thwarted Tarrant's attempt to obtain a permit from the Oklahoma Water Resources Board to divert 310,000 acre-feet from the relatively clean Kiamichi River upstreamfrom where it flows into the salty Red River. This would have been enough water to supply the annual water needs of some 300,000 Texas families.[5] [1] Sporhase v. Nebraska, 458 U.S. 941 (1982). [2] http://www.supremecourt.gov/opinions/slipopinions.aspx. [3] Chesterfield Smith Professor of Law and Director, LL.M. Program in Environmental & Land Use Law, University of Florida Levin College of Law. Klein was one of six amici who filed a brief for Professors of Law and Political Science as Amici Curiae Supporting Respondents Herrmann et. al, http://www.scotusblog.com/case-files/cases/tarrant-regional-water-district-v-herrmann/. [4]Metropolitan Fort Worth experienced a population growth over more than 23% from 2000 to 2010, one of the largest increases in the United States. Tarrant, slip opinion, at *7. [5] http://www.usbr.gov/main/about/fact.html (explaining that 1 AF can supply the annual needs of a family of four). Wed, 19 Jun 2013 10:31:44 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5CA2075E-9126-E28C-666D65E902073C68 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5CA2075E-9126-E28C-666D65E902073C68 The 2013 Water Resources Development Act (WRDA), as adopted by the Senate on May 13, S.601, would authorize $12 billion in federal spending on flood protection, dam and levee projects, and port improvements. A new version of WRDA is passed every few years, and it is the primary vehicle for authorizing U.S. Army Corps of Engineers' water projects and for implementing changes with respect to the Corps' water resource policies. S.601 contains several notable provisions, not the least of which is the so-called "States' Water Rights Act" Amendment. This amendment would bar the Corps from charging a storage fee for "surplus water" drawn from Missouri River reservoirs. For the purposes of Section 6 of the 1944 Flood Control Act, which governs Missouri River operations, "surplus water" is defined as water stored in a Corps of Engineers reservoir that is not required because the congressionally authorized need for the water never developed. In the Dakotas, the water in question was originally intended for irrigation, but irrigated agriculture in this region did not develop to the extent anticipated in 1944. In the midst of one of the most severe draughts seen by this region since the 1930's, one has to wonder whether there could ever be such a thing as "surplus" water. Last summer, crops withered in the field, and low water levels on the Missouri threatened to shut down commerce on the Mississippi River and to disrupt shipments worth billions of dollars. What kind of sleight of hand might this be? Fri, 14 Jun 2013 11:07:47 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=43032F00-E7F1-19EB-EF9AE8A6D5B891F1 http://www.progressivereform.org/CPRBlog.cfm?idBlog=43032F00-E7F1-19EB-EF9AE8A6D5B891F1 Yesterday's confirmation hearing for Dr. Howard Shelanski - President Barack Obama's nominee to serve as the next "Regulatory Czar," or Administrator of the White House Office of Information and Regulatory Affairs (OIRA) - may have been the "most important hearing in Washington this week," but it did not produce much in the way of bombshells or drama. Rather, it was a relatively staid affair, which at times had a distinct "going through the motions" vibe. On the positive side, the hearing generated some good discussion about the problems associated with OIRA's role in the rulemaking process. Several of the questions posed by Chairman Carper (D-DE) and Senator Levin (D-MI) were very thoughtful. Senator Levin described the excessive rule delays at OIRA as "chronic" and asked what the nominee would do to address them. He also touched on the problems of extending OIRA review to independent regulatory agencies (as some recent legislative proposals from anti-regulatory members of Congress have sought to do). Chairman Carper addressed the need to limit cost-benefit analysis for rules promulgated under statutes where such statutes prohibit this analysis (which happens to be most of them). Shelanksi offered some thoughtful answers to these and other question. He stated that, if confirmed, his top priority would be to ensure "timely review" of agency rules, as opposed to OIRA's current pattern of routinely violating the 90-day limit that Executive Order 12866 places on such reviews. Shelanski also repeatedly acknowledged the need to conduct OIRA review consistently with the statutes under which agency regulations are issued. For example, during one exchange, Chairman Carper noted that for some statutory provisions - such as the provisions of the Clean Air Act under which the Environmental Protection Agency (EPA) sets National Ambient Air Quality Standards (NAAQS) - explicitly prohibit the use of cost-benefit analysis. In response, Shelanski noted that OIRA review involves several elements in addition to cost-benefit analysis, and that its review of NAAQS would likely need to focus on those other elements. Since OIRA has routinely ignored such statutory provisions, Shelanski's assertion that he intends to comply with the law is noteworthy. But, there were also some concerning moments during the hearing. Thu, 13 Jun 2013 10:02:34 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3DA10A1B-A778-6D30-F3995559FA98DB9F http://www.progressivereform.org/CPRBlog.cfm?idBlog=3DA10A1B-A778-6D30-F3995559FA98DB9F The Obama Administration's announcement that it will comply with a district court's order that it make emergency contraceptives available to all women and girls without a prescription comes as a welcome development in a long-running administrative-law fiasco. But the Administration's specific suggestions as to how it will set things right, set forth in letters sent yesterday to the district court and to the citizen petitioners who originally asked for nonprescription access to emergency contraceptives, are inadequate in several respects. First, under the government's approach, we will all have to wait for Teva Branded Pharmaceutical Products R&D, Inc. - the sponsor of the one-pill emergency contraceptive, Plan B One-Step - to submit a new application asking for full over-the-counter status for its product before anything can happen to implement the court's ruling. The government's letter to the court announcing its compliance with the court's ruling, and its letter to the citizen petitioners announcing its granting of their petition, set forth no deadline within which Teva must submit a new application. For all we know, Teva is uninterested in submitting such an application. As the government revealed in the district court proceedings, 99 percent of Teva's market is covered by the application the FDA approved in April of this year. Why should Teva want more? Perhaps it is satisfied with what it has. In any event, nothing in the government's "acquiescence" requires any action at all from Teva, and thus the government's actions are utterly dependent on the independent and unpredictable actions of a private entity. This alone should make the government's proposed "compliance" with the court's order unacceptable. Second, in its letter to the court, the government says that the FDA has "invited" Teva to "promptly submit" a supplemental new drug application with proposed labeling that would permit Plan B One-Step to be sold without a prescription or other point-or-sale restrictions. But we don't know exactly what the government's letter to Teva says. A previous letter exchanged between the government and Teva, read aloud by the district court judge in a hearing on the government's motion to stay his order, suggested that the FDA had asked Teva to submit only very limited studies in a new request for over-the-counter status for Plan B One-Step. The FDA's new "invitation" to Teva could very well contain some such limitation. We don't know; the government hasn't made the letter public. It also hasn't made the other letters exchanged between it and Teva public. Unless and until the letters are made public, we simply won't know if any private deals have been struck between this public agency and this private company, and thus we will not know if the public interest is being adequately served. Third, the government has not yet decided whether Teva will be granted marketing exclusivity for its product. The FDA had previously granted Teva three years of exclusivity based on its conclusion that the studies Teva submitted with its latest supplemental new drug application were "essential" to its approval of over-the-counter status for this drug for girls 15 and older. But the finding that these studies were "essential" itself conflicts with the district judge's factual findings that Plan B One-Step was approvable for over-the-counter status without the new studies. The FDA has not directly challenged the district judge's factual findings. Even so, the government's letters to the district court and to the citizen petitioners indicate that the government continues to maintain that the latest studies on Plan B One-Step meaningfully distinguish this product from Plan B and its generic equivalents. Without a promise from the government that it will abandon its baseless assertion that the new Teva studies are "essential" in proving that Plan B One-Step is safe and effective for women and girls of all ages without a prescription, it appears that the government will continue to give legal effect to the very factual premises that the district court found arbitrary, capricious, unreasonable, and held in bad faith. This would not be compliance with the court's order; it would be continuing defiance of it. Tue, 11 Jun 2013 12:16:54 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=33CEE70D-B7D6-A72E-24420EB5F3A78E36 http://www.progressivereform.org/CPRBlog.cfm?idBlog=33CEE70D-B7D6-A72E-24420EB5F3A78E36 Why does the White House take so long to review rules from the regulatory agencies? As I have documented elsewhere, many rules have been stuck at the White House's Office of Information and Regulatory Affairs (OIRA) for years. Some of these remain there to this day. What is the White House doing for the months and years that rules are stuck there? One rule that just escaped from the clutches of regulatory review might provide a clue. Just yesterday, EPA posted documents generated as a result of White House review of its rule on formaldehyde emissions from wood products. These documents show at least one possible answer to the question of why review takes so long: perhaps it takes a very long time to make the benefits of regulation disappear! This, at least, appears to be a primary consequence of the more-than-year-long tenure of the formaldehyde rule at the White House's OIRA. EPA's rule on formaldehyde emissions went to OIRA with an estimate of annual benefits that ranged from $91 million at the low end to $278 million at the high end. The rule left OIRA, however, with an estimate of annual benefits that ranged from $9 million at the low end to $48 million at the high end. (To see a chart showing this change, go here: www.regulations.gov/#!documentDetail;D=EPA-HQ-OPPT-2012-0018-0495 and click on document entitled "2013-05-20_Formaldehyde-Implementation_NPRM_EO12866-Documentation_3-Redlined-Draft EA-A4-table.") The low-end estimate of benefits, in other words, decreased more than ten-fold as a consequence of OIRA's review, while the high-end estimate decreased more than five-fold. What happened? Tue, 11 Jun 2013 09:43:47 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=334360AF-FA09-FC4D-18608A416B86B5A7 http://www.progressivereform.org/CPRBlog.cfm?idBlog=334360AF-FA09-FC4D-18608A416B86B5A7 Later in this space, we'll begin a series of blog posts describing the many and varied failings of a proposal in the Senate to reform the Toxic Substances Control Act. Unfortunately, the proposal is the joint work product of conservative Sen. David Vitter (R-LA) and liberal Sen. Frank Lautenberg (D-NJ), who died two weeks ago and therefore won't have the chance to fix the legislation that is so unworthy of his name. But before we take on that misguided proposal, we wanted to pay tribute to the Senator's larger legacy. Frank Lautenberg was a tireless advocate for progressive causes, who played a key role in many of the environmental and health battles of the last three decades. He was a relentless and effective advocate for the people of the "Garden" state, which in addition to its reputation for farming on lush land, also holds the tragic distinction of hosting more Superfund toxic waste sites than almost any other state. New Jersey, once the third largest petrochemical producing state in the union, has a very large population in a small space. All of the elected and appointed officials who have risen to prominence there are highly sensitive to these issues and have frequently offered their leadership for the good of the nation as a whole. Indeed, it's no accident that two former administrators of the EPA - Christie Todd Whitman, a Republican (and former governor), and Lisa Jackson, a Democrat, came from the ranks of the state's government. Both worked closely with Sen. Lautenberg, who could always be depended upon to fight for more resources and better laws to address grievous public health hazards. Over the course of roughly 28 years in the Senate (not counting a two-year gap when he temporarily retired), Lautenberg reshaped the nation's approach to smoking, drunk driving, domestic violence, toxic waste cleanup, and community right-to-know. Legislation he introduced in the 1980s helped trigger the smoke-free revolution by prohibiting smoking on commercial airplane flights. The law marked a significant early defeat for the tobacco lobby, making tougher legislation at the federal, state and local level, possible. Lautenberg was also instrumental in toughening the country's drunk-driving laws, establishing a nationwide .08 blood alcohol standard and a 21-year drinking age. He wrote and got passed legislation that prohibited perpetrators of domestic violence from owning guns. On the environmental front, Lautenberg worked tirelessly with Sen. Bill Bradley and Reps. Jim Florio, Bob Roe, and Jim Howard to win reauthorization of the multi-billion Superfund program that harnessed the federal government's power and resources to eliminate the worst threats posed by the thousands of dumpsites filled with toxic chemicals throughout New Jersey and the country. He was instrumental in winning passage of the Emergency Planning and Community Right-to-Know Act that was designed to prevent industrial accidents like the explosion at a Union Carbide pesticide plant in Bhopal, India that ultimately claimed 3,787 lives. Tue, 11 Jun 2013 09:37:13 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3337EEA5-ECC2-9946-A6E401C9DCE2AB2E http://www.progressivereform.org/CPRBlog.cfm?idBlog=3337EEA5-ECC2-9946-A6E401C9DCE2AB2E The confirmation hearing for Howard Shelanski, President Obama's pick to serve as the Administrator of the White House Office of Information and Regulatory Affairs (OIRA) is set to take place Wednesday before the Senate Homeland Security and Government Affairs Committee. If confirmed, Shelanski would become the Administration's new "Regulatory Czar," a description that indicates the significant influence OIRA's administrator has concerning what agency rules look like and, indeed, whether those rules are issued at all. Shelanski's confirmation hearing comes at a crucial juncture in the Obama presidency. Progress on many important rules has been halted, including the EPA' rule to limit greenhouse gas emissions from future power plants. Of the 139 reviews currently pending at OIRA, 71 are beyond the 90-day limit set by Executive Order 12866. A number of rules have been under review for a year or even two years. If the President is to live up to his promise in his first post-election State of the Union address to take decisive action on pressing issues such as climate change, OIRA will have to change its tune. We will be listening during the hearing to see whether Shelanski is prepared to finish up regulations that are necessary to protect the public and the environment, rather than continuing the tortoise-like review process that has characterized the President's first term. The answers to the following questions will provide the answer: Will Shelanski ensure the quick completion of reviews for rules that have been stuck at OIRA for well beyond the 90-day limit in Executive Order 12866? Senators should ask about the many rules that are pending at OIRA, such as the EPA's Chemicals of Concern rule (stuck since May, 2010); the Department of Transportation's Requirements for the Transportation Of Lithium Batteries (since October, 2010); the Occupational Safety and Health Administration's (OSHA) Silica rule (since February, 2011), OSHA's Injury and Illness Recording Requirements (since November, 2011); the National Highway Traffic Safety Administration's Rearview Camera rule (since November, 2011 despite a legislative deadline of February, 2011); and the Department of Energy's Federal Building Standards rule (since December, 2011). Tue, 11 Jun 2013 09:18:49 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=332BE27B-DB79-F806-4AC208A3C4FCC572 http://www.progressivereform.org/CPRBlog.cfm?idBlog=332BE27B-DB79-F806-4AC208A3C4FCC572 Three years later, it was time for a new episode. Back in 2010, Congress listened to some climate-denial rants, counted votes, and decided to do absolutely nothing about climate change; this year on Capitol Hill, the magic continues. Also in 2010, the Obama administration released an estimate of "the social cost of carbon"` (SCC) - that is, the value of the damages done by emission of one more ton of carbon dioxide. Calculated by an anonymous task force that held no public hearings and had no office, website, or named participants, the SCC was released without fanfare as, literally, Appendix 15A to a Department of Energy regulation on energy efficiency standards for small motors. This year, the Obama administration updated the SCC calculation. The update was done by an anonymous task force that held no public hearings, and had no office, website, or named participants. It first appeared as - yes! - Appendix 16A to a Department of Energy regulation on energy efficiency standards for microwave ovens. Something has to change in a sequel (unless it's in Congress); this year's SCC number is bigger. For a ton of CO2 emitted this year, the estimated damages were bumped up from $25 in the 2010 calculation to about $40 in the revised version (all in today's dollars). Since the SCC is used in the administration's cost-benefit evaluations of new regulations, a bigger number means stronger arguments for energy efficiency and conservation standards. That's the good news. Mon, 10 Jun 2013 13:37:48 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2EF335CB-C36A-11B8-F4F446FBAA10B037 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2EF335CB-C36A-11B8-F4F446FBAA10B037 Late Tuesday afternoon, Senators Sheldon Whitehouse (D-RI), Tom Harkin (D-IA), Ben Cardin (D-MD), and Richard Blumenthal (D-CT) and U.S. Representatives Henry A. Waxman (D-CA) and Ed Markey (D-MA) sent a letter to White House Office of Management and Budget Director Sylvia Burwell urging her to take "prompt action" to implement rules and regulations held up at the Office of Information and Regulatory Affairs (OIRA). The letter notes that under Executive Order 12866, OIRA reviews of agency draft rules must be completed within 90 days, and that 14 of the 20 EPA rules currently undergoing OIRA review have been languishing for more than 90 days, 13 of them for more than a year. In a statement this morning, CPR's Robert Verchick, a former EPA official, applauded the Members of Congress for taking on the issue. He said: Congressional deadlock is often cited as the primary reason for government inaction, but as these key Members of Congress note in their letter, the President's own White House staff is delaying rules that could improve the quality of life for millions of Americans with the stroke of a pen. EPA's proposed "Chemicals of Concern List rule" has been languishing at OIRA for more than three years, that for a proposal which would provide for nothing more than the simple disclosure of such potentially harmful chemicals, as phthalates, PBDEs, and BPA. Consumers and taxpayers deserve to know which cancer-causing and endocrine-disrupting chemicals are in the products they buy and use. But the President's OIRA is sitting on the rule. Action on this and the other rules bottled up at OIRA is long overdue. The Senators' and Representatives' letter reflects an appropriate sense of urgency. Verchick was the Deputy Associate Administrator for Policy at the EPA during the first Obama Administration and comments. CPR Member Scholars have published extensively on the problems at OIRA. Read more on our Eye on OIRA page. Thu, 06 Jun 2013 11:49:41 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=19F6D902-CF41-9AA7-391AF5D52D3F3A3A http://www.progressivereform.org/CPRBlog.cfm?idBlog=19F6D902-CF41-9AA7-391AF5D52D3F3A3A In the old television series, "Cheers," barfly and braggart Cliff Clavin was a guy who was forever "talking through his hat," offering up an endless supply of ridiculous factoids and explanations. Cliff made for good television, but the same cannot be said for the Senate Republicans who seem to be borrowing his approach. That's what's at work with the Republican effort to block President Obama's nomination of three distinguished lawyers to fill longstanding vacancies on the D.C. Circuit Court of Appeals by eliminating the open positions. The GOP claims the appointments are unnecessary because the circuit doesn't need the judges - describing the nominations as "court packing." What utter nonsense! Even Cliff Clavin would blush at the argument! It's so absurd that I can't imagine even the Republicans believe it. The obvious reason that the GOP opposes the nominations is that filling these long-vacant seats will mean that more judges on the court will have been appointed by Democratic presidents than Republican ones. That, of course, is what happens when we have elections. In that sense, the opposition is more than nonsensical; it is an effort repeal the system established by the Constitution for the appointment of judges. Let's dispense with the merits - to use the term loosely - of the GOP's argument. Statistics from the Federal Judicial Center indicate that there were an average of 1,152 cases pending (not yet decided) in the D.C. Circuit during the eight years of the Bush administration. The same average for the four years of the Obama administration is 1,362 pending cases. (A comparison of the last four years of the Bush administration and the first four of the Obama administration reveals a similar result: an average of 87 fewer pending cases in the Bush administration.) Moreover, because no nominations have been confirmed to the court since 2006 (until last month), the number of pending cases per judge has grown from 119 in 2005 to 188 today. By the way, in defense of history, the phrase "court packing" refers to an effort during the Roosevelt administration to add more judges to the Supreme Court - not to eliminate existing seats, as the Republicans would like to do here. The Republicans were happy enough to fill five existing vacancies on the D.C. Circuit when George W. Bush was President , even though, as noted, the workload was about the same or lighter than it is now. Wed, 05 Jun 2013 09:00:01 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=11531CB3-AA9E-4E27-07BD6477B64B5511 http://www.progressivereform.org/CPRBlog.cfm?idBlog=11531CB3-AA9E-4E27-07BD6477B64B5511 Today, President Obama announced three nominations to the D.C. Circuit Court of Appeals. The President nominated law professor Cornelia T.L. Pillard, appellate lawyer Patricia Ann Millett and federal district judge Robert L. Wilkins to the Court. The Court has had many longstanding vacancies, including one slot that was filled when the Senate confirmed Sri Srinivasan for the post in late May. If confirmed, the President's new nominations would fill all remaining vacancies. Below is Center for Progressive Reform Member Scholar Sidney Shapiro's response to the nominations: The President's nominations to the D.C. Circuit Court of Appeals are long overdue. The D.C. Circuit's unique jurisdiction over environmental, health, safety and other regulations gives it a particularly important role in the federal judiciary. But over the past several years, the Circuit Court's tilt to the right has made it the court where needed regulatory safeguards go to die. The President's nominations would likely restore some balance to the court, and that is precisely why Senate Republicans appear poised to launch an all-out effort to delay and obstruct these nominations. The American people deserve better. The argument that we should move seats from this circuit to other circuits because the Court is "not busy enough" is laughable at best and deeply cynical at worst. The Court plays a crucially important role in ensuring that regulations that protect our air and water, and keep our food supply safe are based in sound science, free of political interference, and consistent with statute. President Obama's nominations bring us one step closer to that realization. Tue, 04 Jun 2013 15:56:35 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=108C1117-DBAB-7A55-324E9433390313F3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=108C1117-DBAB-7A55-324E9433390313F3 A panel of the Second Circuit Court of Appeals in New York has just taken under consideration the Food and Drug Administration's motion for a stay of a district court order directing the agency to make levonorgestrel-based emergency contraceptives available to women and girls of any age without a prescription and without other point-of-sale restrictions. In deliberating on this motion, the panel of judges should not, I am sorry to say, take anything the FDA has said in its briefs at face value. The government's opening and reply briefs on the motion to stay are so full of misstatements and omissions that the court could badly err if it did not take everything the government says with a shaker full of salt. One of the factors in deciding whether to grant a stay pending appeal is the likelihood that the moving party will succeed on the merits. The government devotes most of its briefs to this factor. It makes two arguments as to why the court of appeals should find that the government is likely to win on appeal and should thus stay the district court's order on emergency contraception. Both arguments depend crucially on incomplete and inaccurate renderings of the law and facts of the case. Before turning to these arguments, a bit of context is necessary. The levonorgestrel-based emergency contraception at the center of this legal dispute takes two forms. One, Plan B and its generic versions, requires two pills. The other, Plan B One-Step and its generic versions, requires one pill. Both involve the same total dose of levonorgestrel. Despite these obvious similarities, the FDA has worked very hard to treat these drugs very differently; it has made Plan B One-Step available without a prescription to all women and girls over the age of 15, it has apparently blocked nonprescription market access to generic versions of Plan B One-Step for girls under 17, and it has resisted requests to make Plan B and its generic versions available without a prescription to girls under age 17. The district court's order would make all of these drugs (except Plan B, which is no longer marketed) available without a prescription; the FDA would like to keep treating them differently. Wed, 29 May 2013 16:31:31 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F1C5C783-B117-2E4B-A0EB01D31FFD9A20 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F1C5C783-B117-2E4B-A0EB01D31FFD9A20 The impacts of climate change do not fall equally. That is obvious on a global level, where low-lying countries, like Bangladesh and small island states, face inundation, while poor equatorial countries face devastating heat and droughts. It is less obvious, but still true, in the United States, where poor and marginalized communities without sufficient financial and social resources will face significant challenges adapting to the changing climate. While catastrophes appear to affect everyone equally, they are much harder on those who lack the resources to prepare and to cope. So writes Center for Progressive Reform Member Scholar Alice Kaswan in the latest CPR Issue Alert, an executive summary of two recent articles: "Seven Principles for Equitable Adaptation, published in the latest edition of Sustainable Development Law & Policy, and "Domestic Climate Change Adaptation and Equity," a more in-depth analysis published in the Environmental Law Reporter in December 2012. The articles examine the environmental justice implications of a wide range of current and coming impacts of climate change. For example, Professor Kaswan writes, "Hurricane Katrina demonstrated the challenges poor families face in finding shelter and new housing after floods destroy their homes. Poor families are also less likely to have money to prepare for storms and wildfires, buy hazard insurance, or have the resources to relocate to less risky areas, where a persistent lack of affordable housing limits the mobility of vulnerable populations." Professor Kaswan goes on to highlight seven principles policy-makers should adopt in addressing climate change impacts. They are: Government has an important role to play, particularly in protecting those vulnerable populations without the knowledge or adequate means to act. Design substantive adaptation measures that address vulnerability. Wed, 29 May 2013 10:18:42 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F070A46A-A960-CF1A-2BCDBA2C4ED869D3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F070A46A-A960-CF1A-2BCDBA2C4ED869D3 As the scandal du jour over the pure lug-headedness of some IRS staffers reminds us, any screw-up, anywhere in the government, will make its way to the White House press briefing room in about a nanosecond of Internet real time. Suspicion is deeply bred into the press corps, and appropriately so. For that reason, the 2,000 or so people who directly serve on the President's White House staff, but who remain faceless to the rest of us, insist on maintaining control over anything that could embarrass him, including dozens of health, worker safety, and environmental rules that might engender so much as a whiff of controversy or attract a smidgen of opposition from powerful special interests. In this vein, we look forward to the confirmation hearings of one of the few White House politicos actually subject to the Senate's advice and consent - Howard Shelanski, President Obama's nominee for the powerful position of "regulatory czar," a.k.a. Administrator of the Office of Information and Regulatory Affairs (OIRA), located within the White House Office of Management and Budget (OMB). Dr. Shelanski, a lawyer (Berkeley '92) and Ph.D. economist (Berkeley '93), was most recently the chief number-cruncher at the Federal Trade Commission (FTC), giving rise to speculation that he will spearhead an effort to bring independent agencies like the Securities and Exchange Commission (SEC) under Executive Order 12,866, which is read to require elaborate cost-benefit analyses before the issuance of any rule or guidance that upsets powerful industries. Given the high dudgeon of investment bankers these days - the New York Times recently reported their determination to sabotage new derivatives (!!) rules under consideration at the Commodities Futures Trading Commission - bringing the independent agencies to heel is undoubtedly a priority for the waves of lobbyists who swarm the White House staff each morning. But we hope Shelanski will be called to account for a more appropriate agenda. Notwithstanding the loud and endless gnashing of teeth by conservative groups, the truth is that the total number of significant, substantive rules issued in 2012 (848) was substantially lower than the number issued in the last year of the George W. Bush Administration (1,063), and 2013 looks to be shaping up as the lowest (at the current rate, a projected total of 579) since 1997. Some illuminating tables and a list of delayed rules prepared by regulatory analyst Curtis Copeland, a respected retiree from the Congressional Research Service who spoke at a recent CPR event, bear this out. In fact, counting all the little stuff, including routine approvals by the federal government of programs implemented by the states, at the rate it is going, the Obama Administration will produce this year considerably fewer than half the "rules" (1,360) that the George W. Bush Administration did in its last year in office (3,085). Thu, 23 May 2013 23:32:50 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D1D07F71-99BB-9B0F-D89627B2C274AAC4 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D1D07F71-99BB-9B0F-D89627B2C274AAC4 Reposted from Environmental Law Prof Blog. A standard environmental history of American dams unfolds something like this: As a nation, we had a long love affair with dams. And while they helped our nation grow into an industrial power, the environmental side-effects were immense: lost forests and farmland, drowned canyons, and, perhaps most importantly, devastated fisheries. Yet even after some of those consequences became apparent, the story goes, dam-building marched on, powered by bureaucratic inertia and the seemingly unstoppable engine of pork-barrel politics. Finally, in the 1980s, we stopped, but by then we had built approximately one dam for every day of our national existence. As former Secretary of the Interior Bruce Babbitt once put it, "we overdosed." We're now starting to take dams out, and those dam removals often lead to dramatic environmental improvements. But, in the standard narrative, the removals aren't coming nearly fast enough. I agree with this story, and most of the underlying facts aren't really in dispute. But another narrative of dams lingers on, particularly - but not exclusively - in the reports of the government agencies that manage much of our hydropower. In this story, hydropower remains an essential part of our energy mix. Hydropower still comprises approximately 7 percent of our national energy-generating capacity (globally, the percentage is higher). While that number may seem small, it dwarfs the contributions of wind, solar, geothermal, and other renewables. For a few key reasons, that 7 percent is also particularly useful. First, the greenhouse gas emissions of existing hydropower are minimal, at least in the United States. Second, both solar and wind power are somewhat intermittent in their availability, and studies finding that we can rely much more heavily on renewable energy (like this one here, which Lesley McAllister recently blogged about) generally assume that hydropower will even out some of the dips in the supply curve. Hydropower's share also could grow. Some recent studies have identified huge amounts of untapped hydropower capacity, much of it at sites where we already have dams (the United States has approximately 80,000 non-hydropower dams). How much of that capacity is economically available, given a reasonable set of environmental constraints, is a hotly debated question. But at least some capacity for expansion exists, and renewable portfolio standards or - dare we hope - a price on carbon could make expanded hydro look much more economically appealing. In this alternative narrative, then, hydro occupies a crucial and potentially dynamic role in our energy future. And this narrative is not just idle storytelling. In multiple bills, including, most recently, the Water Resources Development Act recently passed by the Senate, Congress has signaled its continuing enthusiasm for hydropower. Thu, 23 May 2013 11:38:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D1D2F146-AED2-67AA-C09C8AAB829BF0A7 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D1D2F146-AED2-67AA-C09C8AAB829BF0A7 Reposted from LegalPlanet. People on both sides of the political spectrum agree that the boundaries of federal jurisdiction under the Clean Water Act are murky, to say the least. But efforts by EPA and the Corps of Engineers to clarify those boundaries have been tied up in the White House for more than a year, with no explanation and to no apparent useful purpose. The President is fond of telling that nation that it should place more trust in government. No wonder he's not convincing his political opponents - he doesn't appear to believe the message himself. The White House Office of Management and Budget has become a black hole not just for new regulations, but even for attempts to clarify existing law. It simply swallows proposals, leaving them forever in limbo, and forever subject to continued politicking. The Clean Water Act jurisdiction guidance surely isn't perfect, but that shouldn't be the test. EPA should be allowed to issue its guidance, and to correct it when and if experience shows that to be necessary. The jurisdictional issue has been problematic for a dozen years now. The law requires a permit for the addition of pollutants to "navigable waters," which it defines as "the waters of the United States." That seemed clear enough in 1985, when the Supreme Court decided U.S. v. Riverside Bayview Homes. At that point, most observers thought the Clean Water Act covered all waters constitutionally subject to federal authority, and that the Commerce Clause extended federal authority to the vast majority of the waters in the country. Federal jurisdiction was hardly ever in question. But then the underlying assumptions changed. In the late 1990s the Supreme Court indicated a renewed interest in establishing boundaries to federal Commerce Clause jurisdiction. And in 2001 in Solid Waste Agency of Northern Cook County v. US Army Corps of Engineers (SWANCC) the Court ruled that the Clean Water Act does not cover at least some "isolated" waters, but provided little guidance on where the jurisdictional line lies. The Court revisited that question in 2006 in Rapanos v. United States. Sean posted this explanation four years ago of the mess left by Rapanos. The short version is that no opinion commanded a majority of the Court. Four justices, led by Justice Scalia, would have limited federal jurisdiction to relatively permanent bodies of water connected to traditionally navigable waterways and wetlands with a continuous surface connection to jurisdictional waters. Four others would have deferred to the Corps of Engineers' broad reading. Justice Kennedy, writing only for himself, opined that jurisdiction over wetlands and waters that are not navigable in the traditional sense "depends upon the existence of a significant nexus" with navigable waters. Because Kennedy's was the swing vote, his "significant nexus" test has been seen as controlling by most courts and commenters. But that test is hardly self-explaining, and confusion remains over whether Scalia's "relatively permanent waters and adjacent wetlands" test is an alternative path to jurisdiction. Mon, 20 May 2013 11:43:18 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C264BE50-0647-1C3A-AEC26FF22E3BDB7D http://www.progressivereform.org/CPRBlog.cfm?idBlog=C264BE50-0647-1C3A-AEC26FF22E3BDB7D Reposted from Legal Planet. A couple of weeks ago, a major paper on the economics of government deficits turned out to have huge flaws. Matt Kahn and Jonathan Zasloff have already had something to say about this, but I'd like to add some thoughts about the implications for environmental issues."Interesting," you say, "But what does that have to do with the environment?" I see two big lessons. The first lesson is about the danger of overreacting to a dramatic research finding, especially when you really want to believe it because it confirms what you thought all along. The second lesson is about how little economists know about the functioning of the economic system as a whole, as compared with their understanding of how individual pieces of the economy work. This is really important for large-scale issues like climate change. I'd suggest use of the warning on the left by journals in the future. More about all of this after the jump. The paper in question purported to show that there's a kind of deficit cliff - when government debt hits 90% of GDP, the bottom drops out of economic growth. As a new paper showed, that finding had fatal flaws. Due to a spreadsheet error, five countries were left out of the analysis. Also, the results were pretty much driven by a single bad year in New Zealand, when government debt was very high and the economy was doing very badly. (This was partly because the researchers only included that one year out of New Zealand's history, maybe due to data availability, and also weighted each country equally no matter how many episodes of high debt they had or how they lasted). An additional problem is that the paper appeared in the American Economic Review, a very distinguished, peer-reviewed journal - but it turns out that the specific issue containing conference papers isn't peer-reviewed, unknown to many of us. Wed, 15 May 2013 12:46:45 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A8CFFD65-D3E7-CFCD-A1D24E1FA704F05F http://www.progressivereform.org/CPRBlog.cfm?idBlog=A8CFFD65-D3E7-CFCD-A1D24E1FA704F05F Reposted from ACSBlog. "The easiest way to save money," President Obama declared in his 2012 State of the Union address, "is to waste less energy." In his 2013 State of the Union address, President Obama took another step and issued "a new goal for America": "let's cut in half the energy wasted by our homes and businesses over the next twenty years." The President also vowed that if Congress did not "act soon" to address climate change, he would "direct [his] Cabinet to come up with executive actions we can take, now and in the future, to reduce pollution, prepare our communities for the consequences of climate change, and speed the transition to more sustainable sources of energy." Such welcome sentiments! So sensible and right and good! But here is a puzzling fact: at the same moment President Obama was uttering these wise and welcome remarks, his White House was blocking rules to promote the very energy efficiency he was extolling. Far from urging the Cabinet to come up with executive actions on climate, his own White House was blocking his Cabinet from taking executive actions on climate. That situation persists to this day. To understand this rather startling state of affairs, we need some background about how the regulatory system works today. Congress has passed laws to increase in many different respects the energy efficiency of the "homes and businesses" the President talked about. Like most complicated contemporary laws, the laws on energy efficiency are implemented by an administrative agency, in this case the Department of Energy (DOE). DOE writes rules that take the basic mandates given by Congress and give them shape; the agency specifies, for example, just how efficient new refrigerators and microwaves and lamps and buildings must be to meet Congress's requirements. Once DOE writes a rule, however, it does not simply issue it. Instead, the rule must first pass through a White House office that oversees the federal rulemaking process - the Office of Information and Regulatory Affairs, or OIRA. Under executive orders reaffirmed or issued by President Obama, no rule deemed significant by OIRA can be issued without OIRA's approval. In the Obama administration, moreover, OIRA has increasingly become simply a portal into the political machinery of the larger White House. Rules go to OIRA and, from there, to the Domestic Policy Council, the White House economic offices, the White House Chief of Staff, even sometimes the President himself. (The former head of OIRA in this administration, Harvard law professor Cass Sunstein, documents (and lauds) this new reality in his recent book, "Simpler: The Future of Government.") Fri, 10 May 2013 15:42:36 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8FC038C7-FF03-A39A-9341DF385834DA65 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8FC038C7-FF03-A39A-9341DF385834DA65 Today's move by Senate Republicans to boycott a committee confirmation vote on Gina McCarthy to lead the EPA is just another in a series of shameless tactics aimed at hampering the Environmental Protection Agency and preventing it from doing the people's business. The list includes endless filibusters; sequester cuts that make it harder to enforce existing laws; a host of attacks on specific environmental regulations under the Clean Air Act, Clean Water Act and other statutes addressing critical environmental issues; and wholesale assaults on the regulatory process. To that undistinguished list, we can now add "taking their marbles and going home," rather than voting on a presidential nominee to lead the EPA. Thu, 09 May 2013 14:19:14 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8A4D0056-F44D-3F69-3E8574732631EDA7 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8A4D0056-F44D-3F69-3E8574732631EDA7 CPR's Lisa Heinzerling has an article in the most recent issue of the Pace Environmental Law Review, Inside EPA: A Former Insider's Reflections on the Relationship between the Obama EPA and the Obama White House, in which she discusses the ways that the White House Office of Information and Regulatory Affairs (OIRA) under Cass Sustein exercised control over EPA's regulatory process. She writes that, using cost-benefit analysis as a point of access, OIRA departs considerably from the structure created by the executive orders governing OIRA's process of regulatory review. The distribution of decision-making authority is ad hoc and chaotic rather than predictable and ordered; the rules reviewed are mostly not economically significant but rather, in many cases, are merely of special interest to OIRA staffers; rules fail OIRA review for a variety of reasons, some extra-legal and some simply mysterious; there are no longer any meaningful deadlines for OIRA review; and OIRA does not follow - or allow agencies to follow - most of the transparency requirements of the relevant executive order. Describing the OIRA process as it actually operates today goes a long way toward previewing the substantive problems with it. The process is utterly opaque. It rests on assertions of decision-making authority that are inconsistent with the statutes the agencies administer. The process diffuses power to such an extent - acceding, depending on the situation, to the views of other Cabinet officers, career staff in other agencies, White House economic offices, members of Congress, the White House Chief of Staff, OIRA career staff, and many more - that at the end of the day no one is accountable for the results it demands (or blocks, in the case of the many rules stalled at OIRA). And, through it all, environmental rules are especially hard hit, from the number of such rules reviewed to the scrutiny they receive to the changes they suffer in the course of the process. All in all, it is a stinging indictment, offered by a scholar who experienced the relationship between OIRA and the EPA for herself. Wed, 08 May 2013 12:09:58 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=84B0D159-00C6-7A8A-821A84ED9A53D238 http://www.progressivereform.org/CPRBlog.cfm?idBlog=84B0D159-00C6-7A8A-821A84ED9A53D238 Last week, CPR's Tom McGarity had a column in the Christian Science Monitor, describing the ways that the political right's war on regulation and enforcement helped contribute to the West, Texas, fertilizer plant explosion last month. Today, he's got a separate piece in the Dallas Morning News (and this past Friday, it was in the Houston Chronicle) taking a look at the Texas legislature's response to the disaster. In the piece, McGarity takes a state legislator to task for declaring - even while the investigation into the West disaster is still ongoing - that "'the state of Texas is in good shape' when it comes to regulatory programs designed to protect its residents from future explosions. Therefore, he didn't see the need for 'any major changes.'" McGarity notes that Texas doesn't even have an occupational safety and health entity that might have inspected the plant. Had it, he writes, its concern for worker safety would have alerted it to the risks posed by the ammonium nitrate. And the steps taken to reduce those risks would have protected the entire community of West, not just the workers. When it comes to protecting public health and safety from threats posed by unsafe fertilizer plants in rural areas and equally dangerous industrial operations in major cities, Texas politicians have adopted a Wild West attitude that gives Texas businesses great freedom to innovate and grow the economy. But the Legislature and the governor have been less concerned about ensuring that these companies exercise that freedom in a responsible manner and are held accountable when they don't. It's well worth the read. Mon, 06 May 2013 13:29:47 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=7AAD374B-9217-7734-FFFC0D424748995D http://www.progressivereform.org/CPRBlog.cfm?idBlog=7AAD374B-9217-7734-FFFC0D424748995D Just days before The Washington Post's Kimberly Kindy's published her eye-opening story of chemical showers in chicken processing plants and the untimely death of a federal food safety inspector, OSHA announced fines totaling $58,775 in a case involving a worker fatality at another chicken processing plant - this one in Canton, Georgia. According to OSHA's press release, the worker "became caught in an unguarded hopper while attempting to remove a piece of cardboard." The agency does not typically release the full details of an investigation until it is "closed" by virtue of penalties being paid, a settlement, or a court decision, so we'll only be able to glean the basics of this tragic incident from the public inspection file and press release, for now. But the basics tell a troubling story. OSHA cited Pilgrim's Pride, which boasts billions of dollars in chicken sales annually and employs about 38,000 workers, for violating rules that embody some of the most basic safety principles, like the need to have controls in place to prevent life-threatening machinery from starting up while a worker is servicing it. What's worse, the citation for failing to have procedures in place to control "potentially hazardous energy" has been classified as a "repeat" violation because the plant was cited for similar violations just two years ago. And yet the U.S. Department of Agriculture (USDA) has proposed to give this plant and others like it significantly more leeway to lower their production costs at the expense of providing safe workplaces. USDA's proposed revisions to poultry slaughter inspections will allow plants to speed up their processing lines in a way that poses serious threats to workers' health and safety. Musculoskeletal problems are already rampant in these factories as a result of repetitive motion and awkward positions. But speeding up the lines, which will decrease processing costs by about three pennies per chicken (a cumulative profit totaling millions of dollars per year), is the incentive that USDA is giving to Pilgrim's Pride and other processors to get them to make the capital investments necessary to adopt a new inspection system. That extra profit will be earned on the backs (and shoulders and wrists) of the workers who will have to cope with dizzying new line speeds. Fri, 03 May 2013 08:48:36 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6737A8F4-91EC-A1A0-EC69302F4B92E140 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6737A8F4-91EC-A1A0-EC69302F4B92E140 Reposted from RegBlog. In his revealing new book about his nearly four years as President Barack Obama's "regulatory czar," Harvard Law School professor Cass Sunstein describes a striking moment: "After I had been in the job for a few years, a Cabinet member showed up at my office and told my chief of staff, 'I work for Cass Sunstein.' Of course that wasn't true - but still." But still, indeed. Sunstein's book, Simpler: The Future of Government, makes clear just how much power the Administrator of the Office of Information and Regulatory Affairs (OIRA) wields in this administration. As I have written elsewhere, Sunstein informs us that, as OIRA Administrator, he had the power to "say no to members of the president's Cabinet;" to deposit "highly touted rules, beloved by regulators, onto the shit list;" to make sure that some rules "never saw the light of day;" to impose cost-benefit analysis "wherever the law allowed"; and to transform cost-benefit analysis from an analytical tool into a "rule of decision," meaning that "[a]gencies could not go forward" if their rules flunked OIRA's cost-benefit test. As Sunstein's statements attest, the person who leads OIRA is, in the rulemaking domain, effectively the boss of members of the President's Cabinet. The head of OIRA determines which rules go to OIRA, what changes the rules will undergo before issuance, and indeed whether some rules will be issued at all. Rules that make OIRA's "shit list," to use Sunstein's term, simply stay at OIRA indefinitely. Twenty-four of the 149 rules under review as of April 26, 2013, have been at OIRA since 2011. Three rules have been there since 2010. Three important rules on food safety, required by legislation signed into law by President Obama himself, have been trapped at OIRA for many months. A whole group of energy efficiency rules has languished at OIRA for years. None of these rules will see the light of day without OIRA's say-so. It is a matter of some importance, then, to know who is running OIRA now that Sunstein has left. By law, the Administrator of OIRA must be nominated by the President and confirmed by the Senate. Since last August, when Sunstein returned to Harvard, OIRA has lacked a confirmed administrator. For several months after Sunstein's departure, Obama appointee Boris Bershteyn served as acting administrator of OIRA. But because no one was nominated for the position within 210 days of Bershteyn beginning his service as acting administrator, the Federal Vacancies Reform Act of 1998 prevented him from serving any longer. Since mid-March, therefore, Dominic Mancini - a career economist at OIRA - has been leading OIRA. One might imagine that a career civil servant operating out of an obscure White House office would give a great measure of deference to rules forwarded by the heads of agencies, who were nominated by the President and confirmed by the Senate. But, it appears, one would be wrong. Tue, 30 Apr 2013 12:51:19 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5BA3D8A1-D8BC-18D4-6E3448B133ACE8FC http://www.progressivereform.org/CPRBlog.cfm?idBlog=5BA3D8A1-D8BC-18D4-6E3448B133ACE8FC Last Thursday, President Obama named Howard Shelanski as his new nominee for Administrator of the Office of Information and Regulatory Affairs (OIRA). As of that evening, Shelanski was listed on the website of the industry-funded, fiercely anti-regulatory Mercatus Center as an "expert" in its Technology Policy Program. OIRA has long operated as a regulatory chokepoint, stalling and weakening health and environmental safeguards at the behest of industry groups, and as I've written, the protection of the public will require the next Administrator to work hard to transform OIRA's role. Although much research remains to be done on Shelanski's record, his association with Mercatus raised serious concerns about whether he could be the person to bring that fundamental change to OIRA. (In fact, it brought back memories of George W. Bush, who culled his second OIRA Administrator, Susan Dudley, from Mercatus's ranks.) I pointed the Mercatus connection out in a blog the morning after his nomination. By Friday afternoon, without any explanation, Shelanski's name had been quietly removed from Mercatus' list of experts. (Here's Google's cached version (in pdf form) from April 11, 2013 showing Shelanski's name; here's the same page still available on the web as of this morning; and here's the Shelanski-less version of the page as it looks today on the Mercatus website.) So, questions arise: Did Mercatus take his name off its list of scholars at Shelanski's request, or on their own initiative? Was Mercatus somehow mistaken about who its own scholars were? The answers to those questions, if we ever get them, will give us a better idea whether Mercatus somehow over-reached when it listed him as one of their scholars, or - what's more concerning - whether there was some relationship that Shelanski, Mercatus, or both now would rather hide from view. Tue, 30 Apr 2013 08:40:48 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5ABE694C-B156-EFDB-AE0A194C49D1A457 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5ABE694C-B156-EFDB-AE0A194C49D1A457 CPR's Tom McGarity has an op-ed in this morning's Christian Science Monitor describing the regulatory environment in which that West, Texas, fertilizer plant came to have a large stockpile of explosive material while operating with little or no oversight from state or federal authorities. An April 17 explosion at the plant claimed at least 15 lives and destroyed several hundred homes. McGarity notes that Texas has no state program for occupational health and safety, so leaves such matters to the federal Occupational Safety and Health Administration (OSHA). But with its tiny staff of inspectors (2,400 in all), OSHA's its resources are stretched so thin that it has inspected the plant just once -- in the mid-1980s. Similarly, the Environmental Protection Agency (EPA) has insufficient staff to inspect more than once a decade. Meanwhile the Texas Commission on Environmental Quality is so small, it can only respond to complaints. He writes: These regulatory agencies are supposed to be protecting the public from the risks posed by unsafe workplaces, releases of toxic pollutants, and catastrophic explosions. Yet their failure to focus on the risks posed by the West Fertilizer Company is not atypical. We saw similar failures with the 2005 Texas City refinery explosion (15 workers killed, 170 injured), the 2008 explosion at the Dixie Crystal sugar refinery in Georgia (14 workers killed), and the 2008 explosion at a Bayer CropScience chemical plant in West Virginia (two workers killed). This lack of attention to the safety of our workplaces and neighborhoods is no accident. It is the product of a concerted attack by the US Chamber of Commerce, industry trade associations, and conservative think tanks on what they see as onerous regulatory programs - but ones that were enacted by Congress over the years to protect the public from irresponsible corporate misconduct. Mon, 29 Apr 2013 14:59:26 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=56F2A0E1-A3CA-63DD-1A072E9A1FDE3FA1 http://www.progressivereform.org/CPRBlog.cfm?idBlog=56F2A0E1-A3CA-63DD-1A072E9A1FDE3FA1 A few months ago, I urged the Obama Administration to view the nomination of a second-term Administrator of the Office of Information and Regulatory Affairs (OIRA) as an opportunity to fundamentally change the role that the office plays in the regulatory system. Dozens of important rules got stuck at OIRA in the year before the presidential elections and are still languishing. House Republicans continue their blistering and unsubstantiated attacks on the agencies, doing everything they can to cut their budgets beyond the bone, while the Obama Administration does nothing to rebut these tirades. And most agencies at the federal, state, and local levels are on life support, unable to prevent, much less mitigate a series of deadly fiascos. As just two very recent examples: consider the explosion at a West Texas fertilizer factory that claimed 15 lives several days ago, catching emergency response crews at their most vulnerable, and yesterday's front page story in the Washington Post about a rule that would gravely endanger worker and consumer safety at poultry processing plants. The job of the next "regulatory czar" won't be easy unless he conceives of it as a continuation of the first Obama term's "rule busting" that placates dangerous industries at the expense of public health. Late yesterday, President Obama announced the nomination of Howard Shelanski, a current Federal Trade Commission official (FTC), to be the agent of change that OIRA so desperately needs. We'll certainly take a close look at his record in the days ahead, but one thing is certain: The Senate will need to conduct a thorough and searching confirmation process, one aimed at ensuring that OIRA stops being the place where badly needed safeguards for health, safety and the environment go to die. Dr. Shelanski has spent his career working in the arenas of antitrust and telecommunications, two specialties far removed from the core of OIRA oversight that is most controversial. Hopefully, this background means he will approach health and safety issues with an open mind. On the other hand, Dr. Shelanski is also listed as an "expert" in the Mercatus Center's Technology Policy Program. (His Mercatus Center bio is here.) The Mercatus Center is an industry-funded think tank and is well known for strongly advocating for anti-regulatory policies, indicating that in his new position, he must work especially hard to consider divergent views. Dr. Shelanski's nomination will come before the Senate Committee on Homeland Security and Government Affairs. The members of that committee must take that opportunity to ask him tough questions. For example, as OIRA Administrator, will Dr. Shelanski see it as job to advance the public interest or to appease regulated industries? Who does Dr. Shelanski think should be in charge of the substance of EPA's regulatory decision-making: the EPA Administrator or the OIRA Administrator? When it comes to agency decision-making, will OIRA continue to insist on substituting biased cost-benefit analyses for the impact analyses specified in statute? Will Dr. Shelanski abide by the transparency requirements imposed on OIRA by Executive Order 12866? Will he encourage agencies to follow the Order's transparency requirements as well? Finally, will Dr. Shelanski respect the clear 90-day time limits that Executive Order 12866 places on regulatory review? We look forward to meeting Dr. Shelanski and doing our best to persuade him that a fundamental course correction at OIRA is vital. Without one, there will be more grim funeral services honoring lives lost unnecessarily in industrial catastrophes that escape a badly shredded safety net. Fri, 26 Apr 2013 12:26:06 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=46F29EC9-DCAA-C616-0E6A1E0B1C1175FA http://www.progressivereform.org/CPRBlog.cfm?idBlog=46F29EC9-DCAA-C616-0E6A1E0B1C1175FA Reposted from Legal Planet, by permisison. There are a lot of things to disagree about in terms of energy policy. One thing that ought to be common ground, as discussed in a Washington Post column, is increased research in energy R&D. As this chart shows, federal support for energy R&D is smaller than it was under Ronald Reagan: The economic argument for supporting R&D is simple. Private firms don't have enough of an incentive to engage in basic research because intellectual property law doesn't allow them to capture the full benefits of the resource. For that reason, government support for the research is necessary. Moreover, really new ideas have a high risk factor that may make them unattractive to private investors (a problem addressed by the ARPA-E program.) Wed, 24 Apr 2013 13:44:57 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3CEEAE90-0BE5-858E-D0E602CD58FD0F6B http://www.progressivereform.org/CPRBlog.cfm?idBlog=3CEEAE90-0BE5-858E-D0E602CD58FD0F6B Monday was the deadline for public comment on the State Department's draft Environmental Impact Statement (EIS) on the Keystone XL Pipeline. Mine, which I submitted with the support of two of my University of Nebraska colleagues, are here. The State Department had initially announced that it would take the unusual path of refusing to make all of the comments available to the public absent a Freedom of Information Act request, but after a storm of criticism, the Department has reversed its decision to play hide and seek and now promises to post them all on a website. Meanwhile, the Environmental Protection Agency has released its comments, which are extremely critical of the State Department's analysis of the project's effect on climate change and its failure to consider alternative pipeline routes that avoid critical water resources. The EPA's comments, together with the outpouring of opposition from environmentalists and others, could well carry the day on the merits, persuading the President to reject the project as contrary to the national interest. At minimum, they will serve as fodder for subsequent litigation against the construction of the pipeline, if it's approved. The EPA is hardly alone in its criticism. In my comments, I focused on several problems with the State Department's analysis. I write that the draft EIS failed to comply with the requirements of the National Environmental Policy Act (NEPA), a law that requires federal agencies to evaluate the harmful environmental consequences of their actions and to consider ways to carry out those actions so that they mitigate or avoid such consequences. Tue, 23 Apr 2013 16:26:46 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=385C9816-98C0-D112-ABE613723FAEA822 http://www.progressivereform.org/CPRBlog.cfm?idBlog=385C9816-98C0-D112-ABE613723FAEA822 On Wednesday, the Supreme Court ended a generation of human rights litigation in the United States by holding, in Kiobel v. Royal Dutch Petroleum, that the Alien Tort Statute (ATS) does not apply to actions occurring in foreign countries. The ATS allows plaintiffs to sue in federal courts for torts committed in violation of international law and, since 1980, plaintiffs have used it for claims of grave human rights violations, such as torture, crimes against humanity, extrajudicial killing, and even genocide, arising in other countries. Now it appears that the federal courts will be closed to such claims. In recent years, plaintiffs had brought a series of cases against corporations that accused them of complicity in human rights abuses. Many of those claims were against corporations exploiting natural resources in developing countries. For example, Kiobel arose from Shell's decades-long presence in the Niger Delta. In the 1990s, in response to protests by the Ogoni people about the environmental harm caused by oil extraction, Nigeria cracked down, destroying villages, arresting dissidents, and, in 1995, executing nine Ogoni leaders, including Ken Saro-Wiwa. Members of the Ogoni, including Esther Kiobel, the widow of one of the executed men, sued Shell in U.S. federal court, claiming that it aided and abetted the Nigerian government in its human rights abuses. In 2010, the Second Circuit rejected their suit on the ground that corporations cannot be responsible for violations of international law. Other circuit courts, including the D.C. and Seventh, disagreed, and the Supreme Court granted cert. At oral argument in 2011, however, the justices asked most of their questions about another possible ground of dismissal, based on the presumption against extraterritorial application of federal law. They asked the parties to reargue the case to address that issue. This week the Court issued its decision on that ground. By the usual 5-4 majority, the Court said that the presumption against extraterritoriality applied and that the ATS showed no evidence that Congress intended to overcome the presumption. There are quite a few problems with this interpretation, as bloggers at Opinio Jurishave been pointing out. In no particular order: Fri, 19 Apr 2013 09:59:09 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=225B214A-B7B5-401A-372F9EE967F2A21C http://www.progressivereform.org/CPRBlog.cfm?idBlog=225B214A-B7B5-401A-372F9EE967F2A21C Industries that discharge water pollution are required to abide by clean water laws and regulations that limit how much they can pollute the nation's rivers, lakes, streams, and other bodies of water. If they exceed their limits or fail to implement appropriate methods for controlling their pollution, they violate the law. Such violations should trigger appropriate sanctions to deter all regulated entities from committing future violations. Unfortunately, polluters may weigh decisions about whether and how much to pollute from a dollars-and-cents perspective only, comparing the costs of compliance with the penalties to which they may be subject for exceeding applicable discharge limits. Such a comparison can make decisions about how much to pollute turn on a comparison of the bottom line on the corporate balance sheet with and without a violation, without any apparent recognition of the impact that pollution may have on the health of others or the social responsibility to abide by legal mandates. That's precisely why strict regulation of polluting industries is necessary. More specifically, it's why there should be no question that the cost of violating the law will exceed the avoided costs of compliance that result from a decision not to abide by applicable discharge limits. The penalties for violating environmental laws such as the Clean Water Act should provide ample economic disincentive to violate the law - the penalties must be high enough that regulated businesses that make decision about whether to pollute based purely on the bottom line will find no profit from polluting. Today, CPR releases No Profit in Pollution: A Comparison of Key Chesapeake Bay State Water Pollution Penalty Policies (CPR Briefing Paper 1305), which examines the component of clean water enforcement penalty policy that is aimed at ensuring that polluters do not profit from their bad behavior. The paper focuses on what is known formally as the "economic benefit of noncompliance (EBN)." We look at the penalty policies of three key Chesapeake Bay states, Maryland, Pennsylvania, and Virginia, to examine the rigor of their penalty policies and practices concerning the EBN penalty component. Using the EPA's policies and frameworks as the comparative standard, we review the clean water statutory and regulatory frameworks in these three states to determine the answers to the following questions: Fri, 19 Apr 2013 09:00:00 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1D9DA89C-FFDE-70AA-A2D37EB3702640F6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1D9DA89C-FFDE-70AA-A2D37EB3702640F6 The following is reposted from the Environmental Law Prof Blog. The electric utility industry often complains that renewable energy proponents don't pay enough attention to the intermittency of renewable resources. A common refrain is "the sun doesn't always shine and the wind doesn't always blow." The industry then reminds us that, for a reliable electricity grid, supply and demand must be in balance at all times. The implication is that this will be impossible if we rely heavily on renewable energy. A new report published by the Civil Society Institute models a year 2050 scenario in which renewable energy is used to generate about half of all electricity in the US, and the lights still reliably come on. In the scenario, about 22% of demand is met by solar (almost all PV), 16% by wind, 8% by hydro, and 5% by biomass. The rest is supplied primarily by natural gas and nuclear energy. The scenario includes no coal-fired generation. The authors explain that the intermittency problem of solar and wind is greatly reduced when you consider generation on a regional rather than local scale. Also, weatherpeople are actually pretty good at forecasting available solar resources (i.e. cloud cover) and wind resources (i.e. wind speed) on the time scale that's needed for sophisticated grid operators to balance supply and demand - namely, several hours ahead of time. It also helps that as a general matter, solar electricity is most plentiful and reliable when we most use electricity: during daylight hours. To the extent that disparities between energy supply and demand occur in the 2050 scenario, the report shows that reliability can be achieved using interregional transfers of electricity, energy storage, demand response, and other available approaches. So it seems we can build electric power systems that bank on the reliability of the sun and the wind. A new refrain could be "the sun'll come out tomorrow, bet your bottom dollar that tomorrow, there'll be sun!" and we can recall that our forebears didn't name places Windy Mountain, Windy Plains, and the Windy City for nothing. Wed, 17 Apr 2013 17:42:46 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=19BBF6A1-F202-D3BE-E852FF1E9B037F35 http://www.progressivereform.org/CPRBlog.cfm?idBlog=19BBF6A1-F202-D3BE-E852FF1E9B037F35 In the decades since Congress and state legislatures passed most of the nation's most significant environmental laws, our knowledge about ecosystems has increased dramatically. We know much more about the "goods and services" that ecosystems provide - more, for example, about the migratory species that sustain agriculture by functioning as pollinators, and more about how healthy ecosystems help to filter and clean our water. But our policymakers haven't yet taken advantage of much of that new knowledge. As ecologists learn more about the complex and dynamic interactions that produce these valuable services, decisionmakers and advocates should adopt an ecosystem services approach to implementing laws that affect the environment. Such an approach to environmental protection focuses policy and decisionmaking on restoring and maintaining the natural infrastructure and resources that the public values. It combines scientific assessment tools to understand both our dependence and impacts on ecosystems and public participation to identify the most important services. The approach sets goals for environmental protection and helps direct policymakers and natural resource managers to identify and apply the legal, regulatory, and market-based tools to achieve them. An ecosystem services approach integrates advances in ecology with the law. It also fosters creative thinking about how to restructure laws and regulatory programs to mimic the connectedness of ecosystem functions. The approach requires performance-based evaluations to measure success or failure of management decisions, and it depends on public participation to prioritize those services that the public values most, thus ensuring long-term public support for and investment in achieving the identified goals. Wed, 17 Apr 2013 11:56:59 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=187F46EA-99D4-0640-3AD9E86CD12E7B2B http://www.progressivereform.org/CPRBlog.cfm?idBlog=187F46EA-99D4-0640-3AD9E86CD12E7B2B Last week, CPR lost one its most dynamic scholars, Joe Feller, in a tragic accident. Joe was deservedly well known as a staunch and vigorous advocate on behalf of natural resource preservation, especially the public rangelands that he loved. Joe was not cut from the typical academic mold. Although he wrote frequently and with vision about subjects that included rangeland protection and water law issues, he was at least as comfortable leading environmental protection efforts in the agencies and the courts. Joe filed administrative protests and appeals, represented environmental interests in litigation in the federal courts, submitted comments on proposed agency decisions and rules, testified at public hearings and before legislative committees, and participated in collaborative problem-solving groups. For example, he successfully litigated a path-breaking case requiring compliance with environmental laws in the renewal of grazing permits on federal public lands. Joe's contributions to CPR included efforts to facilitate grazing law reform, http://www.progressivereform.org/perspLivestock.cfm. Joe brought to these endeavors interdisciplinary skills that most legal academics lack. He earned a Ph.D. in physics from the University of California at Berkeley and was an Assistant Professor of Physics at Columbia University. Before beginning his legal academic career, he worked in the Office of General Counsel of EPA, serving as the principal attorney for promulgation of the national ambient air quality standards for particulate matter in the 1980s. Those who knew Joe, however, understand that a recitation of his many notable accomplishments does not come close to capturing what made him beloved by his friends, colleagues, and students. Joe was irreverent. He had a wicked sense of humor. He was incredibly quick and insightful. He let you know where he stood, but was not overbearing. A gathering that included Joe Feller was never dull. He had a knack for cutting to the chase by posing questions and making arguments that reflected his fervor for the legal and policy issues on which he engaged, but that also sparked debate and new insights among others. Joe's passing leaves a large hole. Those of us who shared a meal, hiked a trail, took a run, or attended a conference with Joe will sorely miss his humor, optimism, and high spirits, but we will treasure the memories of these experiences. Much of what was special about Joe is captured in tributes that others have already written, including blogs by Holly Doremus, another CPR scholar, http://legalplanet.wordpress.com/2013/04/09/in-memoriam-joe-feller-much-more-than-a-law-professor/, by Joe's colleagues at ASU, http://www.indisputably.org/?p=4615, and by other legal scholars, http://lsolum.typepad.com/legaltheory/2013/04/joseph-feller.html. A scholarship fund has been established at the Sandra Day O'Connor College of Law at Arizona State University, where Joe taught for 25 years, www.asufoundation.org/feller. A collection of Joe's photos of the landscapes he so loved and fought so hard to protect can be found here, http://picasaweb.google.com/109546365407066839141. Tue, 16 Apr 2013 15:27:17 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=14198B12-A3F5-9B07-3404D52F1A54C5A8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=14198B12-A3F5-9B07-3404D52F1A54C5A8 This morning, CPR President Rena Steinzor will testify before the House Energy and Commerce Committee about the proposed Energy Consumers Relief Act of 2013 (ECRA), yet another in a series of bills from House Republicans aimed at blocking federal regulatory agencies from fully implementing the nation's health and safety laws - in this case such landmark legislation as the Clean Air Act, and any other law enforced by the Environmental Protection Agency that is in any sense "energy-related." Here's the nut paragraph of the bill: Notwithstanding any other provision of law, the Administrator of the Environmental Protection Agency may not promulgate as final an energy-related rule that is estimated to cost more than $1 billion if the Secretary of Energy determines under Section 3(3) [of ECRA] that, with respect to the rule, significant adverse effects to the economy will be caused. In other words, the Secretary of Energy would have veto power over EPA. Here's Steinzor's description of the proposal: The ECRA is nothing more - and certainly nothing less - than yet another attempt by certain Members of Congress to shield some of the wealthiest and most heavily subsidized corporations in history from the relatively modest financial costs associated with carrying out their businesses in a manner that does not place people and the environment at unreasonable risk of harm. Fri, 12 Apr 2013 08:49:44 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FE142DE1-DAB7-E69F-4EAE00FDA0C9C3F0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FE142DE1-DAB7-E69F-4EAE00FDA0C9C3F0 For more than a year now, food safety and worker safety advocates have been fighting a proposal out of USDA's Food Safety Inspection Service that would pull most government inspectors off poultry slaughter lines in favor of potentially un-trained company inspectors, speed up the lines, and allow companies to use additional antimicrobial chemicals to cover up expected increases in contamination. Today, President Obama released a proposed budget that indicates USDA's proposal will be finalized before the start of FY2014 (see pages 86-87) - a rebuke to advocates who have made a strong case against the USDA proposal. As we've noted before, The proposed rule is bad for food safety. USDA has tried out pilot programs that allowed poultry slaughterhouses to speed up their lines and move government inspectors off those lines. Food & Water Watch obtained compliance records and found troubling results, including that bile, sores, scabs, feathers, and digestive tract tissue are often not being properly removed from chicken carcasses. The proposed rule is bad for workers in the plants. As the lines speed up, so does the pace of work at the "live hang" and "rehang" stations. Fast and repetitive motions are a serious ergonomic hazard that will only be exacerbated as line speeds increase. Workers who will be saddled with the responsibility of doing the visual food safety inspections currently conducted by government inspectors are also being set up for retaliation by their employers if their inspections cut into processing speeds or profits. The proposed rule will pollute local waterways, an issue first noted here in this space yesterday. As companies speed up their lines and lose government inspectors, fecal contamination and other microbial problems are expected to crop up more often. So poultry plants are expected to increase their reliance on something called "online reprocessing" (OLR), where all carcasses, visually contaminated or not, pass through automatic sprayers on the line that drench them with large amounts of antimicrobial chemicals like chlorine and trisodium phosphate (imagine a car wash ... but for chickens). Existing regulations and water permit programs are not equipped to handle large increases in the chemicals used in OLR. USDA has failed to account for the true costs of the proposal. USDA failed to properly account for the food safety, worker safety, and environmental costs of this proposal. The President's budget suggests that most of these concerns, raised by a broad coalition of the public interest community, have been ignored in a headlong rush to finalize a rule that officials believe will save a few million dollars in USDA's multi-billion dollar budget (as well as save money for poultry processing companies). Yet, some hope remains that the rule is not written in stone. The President's proposed FY2013 budget also assumed that the rule would be finalized before USDA's budget was set. That did not happen, and it shouldn't this time, either. Wed, 10 Apr 2013 13:21:38 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F4C07E09-0681-C383-9E4304787CF61EC0 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F4C07E09-0681-C383-9E4304787CF61EC0 The Department of Agriculture's (USDA) proposal to "modernize" the poultry inspection system by replacing government inspectors with company employees, and speeding up the processing line to a staggering 175 birds per minute, has been exposed on numerous occasions as a disaster-waiting-to-happen for food and worker safety. In its zeal to save money for poultry corporations, the White House's Office of Information and Regulatory Affairs (OIRA) failed to conduct its much-vaunted "interagency review" before giving the proposed rule its stamp of approval - it even neglected to invite the Occupational Safety and Health Administration (OSHA) to weigh in on the obvious dangers posed to workers. As if more evidence were needed that the poultry rule is a horrible idea, it turns out that the rule also poses a number of serious threats to the environment that went unaddressed in the USDA's analysis, as CPR President Rena Steinzor and I explain in a letter sent today to OIRA Deputy Administrator Dominic Mancini. As proposed, the rule threatens to significantly increase water pollution in at least two distinct ways. First, it would lead to an increase in the use of poultry-sanitizing chemicals, which then have to be discharged into nearby water bodies where they will have toxic effects on aquatic life and threaten ecosystems. Poultry plants are expected to increase their reliance on something called "online reprocessing" (OLR), where all carcasses, visually contaminated or not, pass through automatic sprayers on the line that drench them with large amounts of antimicrobial chemicals like chlorine and trisodium phosphate (imagine a car wash ... but for chickens). In the more traditional method, only those carcasses that are visually identified as contaminated are taken off the line for reprocessing, undergoing procedures that use smaller amounts of chemicals. Tue, 09 Apr 2013 11:18:47 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EF290D7D-C11B-D5F7-C081904429EEF8C6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EF290D7D-C11B-D5F7-C081904429EEF8C6 This post originally appeared on Harvard Law School's Bill of Health and on RegBlog and is cross-posted with permisison. For many of the federal agencies that promulgate and enforce regulations to protect public health, safety, and the environment, the era of "big government" never even began. The U.S. Occupational Safety and Health Administration (OSHA) is a prime example: the agency employs about 2,000 inspectors, who are collectively able to visit roughly 100,000 establishments each year to look for unsafe and unhealthy conditions in the workplace. This may sound like an ample effort, until one considers the scope of the problem: OSHA's rules apply to more than 8 million establishments, and every year more than 4,500 workers die in traumatic occupational accidents, while epidemiologists estimate that about 40,000 additional workers die prematurely from chronic over-exposures to toxic substances. According to data from the Labor Department, analyzed by the AFL-CIO (read the report here - page 91), the ratio of OSHA inspectors to number of covered establishments is such that it would take OSHA between 26 and 243 years to inspect all of the jobsites in each state once only. So OSHA - and the nation's workers - can ill afford for its inspectors to spend time checking out establishments that are fully compliant with all regulatory and other norms, while at the same time miss opportunities to find and fix instances of grave danger elsewhere, before workers are killed or stricken with disease. This is where modern methods of statistical analysis, in particular the concept of "predictive policing," come in. Fri, 05 Apr 2013 11:23:43 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DA94C0A5-02C3-C25B-D1CE6FB73AA81B81 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DA94C0A5-02C3-C25B-D1CE6FB73AA81B81 Over at Climate Progress, CPR Member Scholar Lisa Heinzerling critiques Cass Sunstein's new book, "Simpler: The Future of Government." Rules on worker health, environmental protection, food safety, health care, consumer protection, and more all passed through Sunstein's inbox. Some never left. ... In Sunstein's account, OIRA's interventions also ensured "a well-functioning system of public comment" and "compliance with procedural ideals that might not always be strictly compulsory but that might be loosely organized under the rubric of 'good government'." No theme more pervades Sunstein's book than the idea that government transparency is essential to good regulatory outcomes and to good government itself. The deep and sad irony is that few government processes are as opaque as the process of OIRA review, superintended for almost four years by Sunstein himself. The full piece is here. Thu, 04 Apr 2013 14:30:22 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D6193714-C5FC-00B2-C9A4FA632C230C7C http://www.progressivereform.org/CPRBlog.cfm?idBlog=D6193714-C5FC-00B2-C9A4FA632C230C7C From Member Scholar Lisa Heinzerling's new article in the Yale Journal on Regulation: With President Obama's nomination of Gina McCarthy as the new Administrator of the Environmental Protection Agency (EPA), much attention has turned to her record as the EPA official in charge of air pollution programs, experience as the head of two states' environmental agencies, and views on specific policies and priorities. And with the President's nomination of Sylvia Mathews Burwell to be the Director of the Office of Management and Budget (OMB), attention has likewise turned to her record and experience. Few recognize, however, the tight relationship between the two nominations: the Obama administration's approach to governing will make Ms. Burwell Ms. McCarthy's boss. ... But it turns out the OMB itself seems not to want to accept accountability for running U.S. environmental policy. In a new law review article by Cass Sunstein, the former head of the OMB office that acts as the White House's regulatory gatekeeper, Sunstein insists that he actually didn't have very much power. In fact, he says, decisions about rules most frequently turned on other players in the White House, Cabinet heads outside the agency proposing the rule, or even career staff in other agencies or in the OMB itself. In Sunstein's rendering, it appears that everyone is responsible for the shape and scope of environmental policy in this administration. Which means no one is accountable. Much more in Who Will Run the EPA? Mon, 01 Apr 2013 11:01:12 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C5E6A0FE-E49C-3DEF-3A2740C91382C130 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C5E6A0FE-E49C-3DEF-3A2740C91382C130 Rep. Tammy Duckworth appears to have been caught up in the anti-regulatory fervor that has continued to afflict the House of Representatives ever since the GOP took control there in 2010. On Monday, Representative Duckworth, an Illinois Democrat, announced a plan to address what she said was a problem: "For businesses with less than twenty employees, the annual cost of federal regulation can be over $10,000 per worker." But before we get to the proposed solution, there's a problem with the stated problem: it's just not true. The stat comes from the 2010 "Crain and Crain" study commissioned by the Small Business Administration's (SBA) Office of Advocacy, a study that has been thoroughly debunked in a CPR white paper, by the Congressional Research Service, EPI, and others. Fully 70 percent of the study's cost estimates came from a regression analysis based on opinion polling about perceived regulatory climate in different countries. Having aired a faulty claim of a problem, Rep. Duckworth introduced a bill ostensibly aimed at fixing it, by reducing small business reporting burdens. The bill, the Small Business Paperwork Relief Act, would bar federal agencies from fining "small businesses" for first-time violations of federal reporting requirements when certain conditions are met, significantly curtailing agencies' discretion in ensuring compliance with these requirements while providing little benefits to true small businesses. Last term, identical bills were introduced in the House by Rep. Charles Boustany and in the Senate by Sen. David Vitter; Senator Vitter reintroduced the Senate bill in January. I put the term "small businesses" in quotes, because the definition of that term in Duckworth's bill is a far cry from what most of us envision when we think of small business. For this definition, the bill simply uses the small business size standards developed by the SBA. As documented in a recent CPR white paper, the SBA defines small business rather broadly; they aren't just limited to the "mom and pop" stores lining Main Street in Small Town, USA. Instead, SBA counts petroleum refineries with up to 1,500 employees and chemical manufacturing plants with up to 1,000 employees as small businesses. While such facilities may be relatively "small" for their economic sectors, it defies credulity that such operations lack the resources and sophistication to fill out reporting requirements correctly. Thu, 28 Mar 2013 10:50:49 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B143A2D2-E975-589B-D190D90CBE65705D http://www.progressivereform.org/CPRBlog.cfm?idBlog=B143A2D2-E975-589B-D190D90CBE65705D In late 2011, a little known but surprisingly influential independent federal agency called the Administrative Conference of the United States (ACUS) conducted a research project on "International Regulatory Cooperation" (IRC), culminating in a set of recommendations to U.S. agencies. In a letter sent yesterday (March 21), CPR Member Scholars Rena Steinzor and Thomas McGarity, and I urge ACUS Chairman Paul Verkuil to look back over the project's many flaws, which reflect - in both process and substance - ACUS's pervasive bias toward the views of regulated industries. What exactly is meant by "international regulatory cooperation"? As we write: The principal objective of IRC is to "harmonize" U.S. regulatory standards with those of other countries or international standard-setting organizations. .... There is always a danger that such harmonization efforts will become a deregulatory "race to the bottom" in which nations, at the urging of business groups, converge on the least protective standard in the interest of maximizing international trade. A number of current proposals (described in an attachment to the letter) illustrate how "harmonization" efforts can significantly reduce health, safety, or environmental protections. For example, the Food and Drug Administration (FDA) has proposed establishing "import tolerances" for residues of unapproved animal drugs in foods shipped to the United States. Instead of its normally rigorous drug approval process, the FDA would essentially rely on a foreign government's approval of the drug in question, conducting a much less comprehensive review before signing off on the wholesale importation of foods containing that residue. The FDA would in many cases borrow the "maximum residue limits" established by the Codex Alimentarius, an international standard-setting body heavily influenced by industry groups. Since much of the food we eat in the United States is imported (15 percent of all our food, 91 percent of our seafood, 61 percent of our honey, and 8 percent of our red meat), the presence of unapproved drug residues could expose Americans to much higher risks of allergic reactions, cancer, and other serious health problems. Fri, 22 Mar 2013 09:45:39 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=921D6CFC-F1CE-E3F0-DC75B70654636279 http://www.progressivereform.org/CPRBlog.cfm?idBlog=921D6CFC-F1CE-E3F0-DC75B70654636279 Two months ago, a federal district court in Alaska set aside the Department of the Interior's designation of critical habitat for the polar bear. This had been the most geographically extensive critical habitat designation ever under the Endangered Species Act (ESA), but it provoked adamant opposition from the petroleum industry and the state of Alaska. That isn't atypical; critical habitat designations often generate controversy. But one might wonder why. The ESA's only provision directly targeted at critical habitat protection is the so-called adverse modification prohibition. Specifically, section 7 of the ESA prohibits federal agencies from taking any action "likely to... result in the destruction or adverse modification of habitat of such species which is determined by the Secretary, after consultation as appropriate with affected States, to be critical." In environmental law casebooks, academic literature, and, sometimes, in practice, that prohibition can seem like the forgotten step-child of the ESA. Almost all the attention instead goes to section 7's prohibition on federal actions likely to "jeopardize" listed species and to section 9's take prohibition. On paper, the adverse modification prohibition looks powerful, but discussion of it is rare enough that one might ask why anyone cares about critical habitat at all. Several years ago, I started a research project that tried to make sense of this conundrum. My goal was to figure out the extent to which the Fish and Wildlife Service and the National Marine Fisheries Service are actually using the adverse modification prohibition to protect species. I also wanted to understand how else habitat does, or doesn't, receive regulatory protection under the ESA, and what actually happens in section 7 consultations. This Friday, at a conference on Capitol Hill co-sponsored by the Environmental Law Institute and the Vanderbilt Law Review, I'll be talking about the results. Three experienced ESA attorneys - Deputy Interior Secretary David Hayes, Defenders of Wildlife Vice President for Conservation Law Michael Senatore, and Hunton and Williams Counsel Andrew Turner - will then comment on the paper. In addition to my talk, the conference features two other papers. One, co-authored by Ian Duncan and fellow CPR scholar David Adelman (both at the University of Texas), addresses liability issues associated with carbon sequestration. The other, by Stanford's Buzz Thompson, considers whether the Coastal Zone Management Act could provide a useful model for federal legislation promoting integrated water resource management. If you'll be in DC on Friday, I hope you'll check it out (RSVP). The proceedings also will be viewable online. Wed, 20 Mar 2013 09:30:43 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=809B3136-0377-7704-0DF559D1D1E313D2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=809B3136-0377-7704-0DF559D1D1E313D2 This post was written by CPR President Rena Steinzor and CPR Policy Analyst Michael Patoka. On Friday, the White House Office of Information and Regulatory Affairs (OIRA) returned a proposed rule on air pollution standards for oil refineries to EPA, insisting that the agency complete "additional analysis" before moving forward. EPA's efforts to reduce hazardous pollutants from these facilities will be delayed for months or likely years. And that additional analysis? OIRA won't even say what it's for. "Trust us" is not the most reassuring government transparency. EPA was proposing to revise the emissions standards for hazardous air pollutants from oil refineries, incorporating the results of a "risk and technology review," which is used to determine whether additional reductions are warranted in light of the remaining risks to human health that the facilities present and the technology now available to lower their harmful emissions. The proposal would also amend new source performance standards (NSPS) for a number of other pollutants from these facilities. The various pollutants emitted from the nation's 150 oil refineries can cause cancer, severe respiratory problems, and a range of cardiovascular, skin, blood, and neurological disorders. Because EPA's proposal has been returned to the agency instead of released to the public, we do not know by how much EPA expected to reduce emissions of these harmful pollutants or how large the resulting health benefits would be. The current emissions standards for hazardous air pollutants from oil refineries were issued in 1995 and 2002, each one covering different sources of pollution. Under the Clean Air Act, EPA is required to review these standards within eight years of setting them, so this rulemaking is actually many years overdue. The agency has been under a court-approved settlement to propose this rule by December 15, 2011, and it is more than a year past that deadline as well. After conducting an extensive survey of all the refineries in the nation, EPA submitted its proposal to OIRA on September 4, 2012, already nine months late but also during the election season. OIRA then held onto it for more than six months - much longer than the 90 days (with one 30-day extension) permitted by Executive Order 12866 - only to tell the agency on Friday that it needs to provide even more information. Tue, 19 Mar 2013 11:42:07 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8318CFB6-9844-FE66-1CF113E977CB659E http://www.progressivereform.org/CPRBlog.cfm?idBlog=8318CFB6-9844-FE66-1CF113E977CB659E This post was written by Thomas O. McGarity and Emily Hammond Meazell. The coal-fired power plant industry has always fought air-emissions standards enacted pursuant to the Clean Air Act (CAA). But the industry has increasingly raised the specter of reliability problems, arguing that EPA's recent "tsunami" of regulations will cause a "train wreck," forcing companies to retire aging plants so rapidly that lost capacity will outpace the development of new sources. The result, they maintain, will be such an unmanageable strain on the regional grids that they will have to impose brownouts and blackouts as a consequence. The overheated rhetoric of reliability threatens to overwhelm and run aground meaningful debate about environmental regulation, climate change, and the appropriate mix of fuels for generating electricity. There is no doubt that reliability is a critical concern - but it is being misused to obscure the fact that many updates to our power supply are necessary, achievable, and taking place already as a result of both environmental regulation and market forces. The Rhetoric Facing proposed new regulations under the CAA, the industry attempted to play the reliability trump card in several rulemaking proceedings, including EPA's "Cross-State" rule governing interstate transport of power plant pollutants, EPA's "Utility MACT" rule limiting emissions of mercury and other hazardous air pollutants from power plants, and EPA's greenhouse gas rules requiring power plants to install the "best available control technology" (BACT) in new power plants and modifications of existing power plants. Coal interests have even used reliability concerns in their efforts to persuade Congress and the Bush and Obama Administrations to force EPA to terminate enforcement actions against power plants that unlawfully modified their facilities without undergoing "new source review" and installing BACT. Fri, 15 Mar 2013 12:56:48 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6EC4662F-C7D5-0DAE-D7CEA457BCECB431 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6EC4662F-C7D5-0DAE-D7CEA457BCECB431 This morning, CPR President Rena Steinzor testifies before the House Committee on Small Business's Subcommittee on Investigations, Oversight and Regulations. From the witness list, it would appear that this'll be another in a series of hearings structured by House Republicans to inveigh against the regulations that protect Americans from a variety of hazards in the air we breathe, water we drink, places we work, products we buy, food we eat, and more. If history is any guide, most of the testimony and discussion will focus not on how best to protect Americans from such problems, but on the costs to small business of doing so. Steinzor is the lone witness permitted to the minority party -- the Democrats, that is -- and as such, could well be the only person who mentions the benefits of regulation. Study after study has demonstrated that the economic benefits of regulation vastly exceed the economic costs. Indeed, before a significant regulation can be finalized, the regulatory agencies must conduct an extensive cost-benefit analysis to be certain that the benefits of the rule exceed the costs. That process is not without flaws: Typically it is slanted to overstate the costs and understate the benefits, and it focuses on economic benefits, ignoring those that cannot be readily expressed in dollar terms. But it's the process this and previous administrations have relied upon. For years, opponents of regulation took the line that we needed to be sure benefits, so measured, outweigh costs. They got what they wanted, but can't take "yes" for an answer, so now they simply rail against costs, and ignore the benefits. Steinzor will remind them of what those safeguards bring us in terms of lives saved, workdays not lost, health care dollars not spent, ecosystems preserved, and more. Thu, 14 Mar 2013 11:29:57 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=694E6896-D8B0-7EE8-5E69411BAC824313 http://www.progressivereform.org/CPRBlog.cfm?idBlog=694E6896-D8B0-7EE8-5E69411BAC824313 A quick update on the OIRA leadership front: Dominic Mancini has been named the Deputy Administrator of OIRA, and now "leads" the office from this position, an OMB spokesperson says via email (The Hill was up with this news a bit earlier today). Boris Bershteyn's appointment as Acting Administrator has ended, the spokesperson said. Bershteyn had reached a time limit under the Federal Vacancies Reform Act, which puts restrictions on acting officers performing in Senate-confirmed positions. By the letter of the law, the Administrator of OIRA is a Senate-confirmed position; the Deputy Administrator is not. Mancini joined OIRA as an economist in 2002 or 2003, and in 2009 became OIRA's Branch Chief for Natural Resources and the Environment. Wed, 13 Mar 2013 16:39:04 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=65432983-D14A-B7F1-DFAF393EE55AF73F http://www.progressivereform.org/CPRBlog.cfm?idBlog=65432983-D14A-B7F1-DFAF393EE55AF73F Next Wednesday, the Supreme Court will hear oral argument in the case of Horne v. U.S. Department of Agriculture - a complicated and relatively little-noticed case that could have important implications for the direction of "takings" doctrine and, in turn, for how far judges wielding this doctrine may intrude upon the policy-making functions of the elected branches. To understand the case, it is useful to analogize the issues in the case to a set of Russian nested dolls. The issue representing the innermost doll, which the Court will only get to if it can unpack the outer dolls, is the most intriguing and arguably the most significant in terms of the future of takings doctrine. The question is whether a federal agricultural marketing program results in a "taking" of private property within the meaning of the Takings Clause of the Fifth Amendment by requiring raisin producers to turn over a portion of their crop to a quasi-governmental entity for eventual disposal with little or no financial return to the producers. The program was established pursuant to the federal Marketing Agreement Act, adopted during the Great Depression to stabilize the prices of certain crops by controlling the volume of production going to market. The Act's requirement that producers place a portion of their crop in "reserve" only goes into effect once the Department of Agriculture, in response to a petition supported by a majority of producers, issues a formal marketing order, which occurred in the case of raisins in the late 1940's. In some years, when production is low, no raisins are reserved under the program; in other years, when production is high, raisin producers must place as much as a third of their crop in reserve. The upshot is more stable - and higher - raisin prices for producers and consumers alike. The Hornes, long-time raisin producers, concluded that the program represented bad agricultural policy and was unfair as applied to them. In the hope of escaping the program's requirements, they rearranged their business practices in an attempt to avoid the Act's mandates while continuing to produce raisins, and ceased placing any portion of their raisin crop in reserve. The USDA rejected this gambit and imposed civil penalties on the Hornes for violating the program rules. They responded by filing suit in federal district court in California, arguing, among other things, that the reserve requirement constituted a taking. Wed, 13 Mar 2013 11:51:42 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=643C1097-B15E-DE80-E69BAF8EE78F6CB9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=643C1097-B15E-DE80-E69BAF8EE78F6CB9 Next Tuesday, the Supreme Court will hear oral arguments in Mutual Pharmaceutical Co. v. Bartlett, a case that raises once again the troubling question of whether federal regulatory agencies should trump local juries in common law tort actions. The precise question at issue is whether the fact that the federal Food and Drug Administration (FDA) approved a name-brand drug many years ago precludes a state court jury from holding the manufacturer of the generic version of that drug strictly liable for damages to patients caused by marketing the drug. The plaintiff in this case, Karen Bartlett, visited her doctor in December 2004 complaining of shoulder pain. Her doctor prescribed Clinoril, one of many non-steroidal anti-inflammatory drugs (NSAID) that are commonly used to treat arthritis, bursitis, and other painful conditions. When Ms. Bartlett's pharmacist filled the prescription, however, it gave her the generic version of the drug sulindac, rather than the brand-name drug. Under federal law, the generic version of sulindac had to be chemically and biologically equivalent to the brand-name version that had been approved by the FDA. Not long thereafter, Ms. Bartlett developed a horrific disease called SJS/TEN, which caused massive burns over 60-65 percent of her body. For the next year, her life was, in the words of her surgeon, a "hell on earth" as she spent 100 days in five hospitals and several months in a medically induced coma. During this time she was fed by tube, suffered two septic shock episodes, endured twelve eye surgeries, and became legally blind. Although she survived, she is severely disfigured, cannot eat normally due to esophageal burns, cannot have sexual relations, and cannot engage in aerobic activities because of burns to her lungs. Tue, 12 Mar 2013 11:55:55 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5F199697-B315-8C86-A26F5A4D15C6FCA3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=5F199697-B315-8C86-A26F5A4D15C6FCA3 Last week Rena Steinzor wrote here that the Acting Administrator of the Office of Information and Regulatory Affairs (OIRA), Boris Bershteyn, was approaching a time limit under the Federal Vacancies Reform Act. That law stipulates that a temporary appointee in a Senate-confirmed position can generally serve for no more than 210 days, unless a nomination is pending, which in this case it is not. Where Bershteyn was previously listed as the OIRA Administrator, the White House has now removed his name. Complying with laws is important. It's also important for the President to take the next step: nominating a new OIRA Administrator, someone with a vision for protecting public health, safety and the environment and who can take the office in a new direction. Mon, 11 Mar 2013 10:20:05 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=599B803B-D154-B01C-74717E91DC2F5C94 http://www.progressivereform.org/CPRBlog.cfm?idBlog=599B803B-D154-B01C-74717E91DC2F5C94 A report released yesterday by the Southern Poverty Law Center (SPLC) and the Alabama Appleseed Center for Law and Justice offers a devastating glimpse into the world of Alabama poultry workers. Forced to hang, fold, gut, or slice more than 100 carcasses each minute, these workers suffer injuries at astounding rates: of the 302 workers interviewed, almost three-quarters have experienced a significant work-related injury or illness, from deep cuts and debilitating hand pain to chemical burns and respiratory problems. More than anything, these injuries are a result of the punishing line speeds that workers have to keep up with - lines that never slow or stop when a worker is in pain, but only when a piece of chicken becomes lodged in the machinery. Unsafe at These Speeds: Alabama's Poultry Industry and Its Disposable Workers is a sobering report, especially since it comes at a time when the Department of Agriculture (USDA) is preparing to finalize a proposed rule that would allow poultry plants to raise line speeds to a staggering 175 birds per minute (up from current limits of 70-140 birds per minute) and would leave only one federal inspector on each line. In other words, workers would have only one-third of a second to spend on each carcass, and the inspection duties previously handled by USDA inspectors would be turned over to company employees. As disturbing as that looks on paper, the real-world implications are even worse in light of the working conditions described in this report. The new report describes how the relentless pace of the processing line creates a frenzied work environment that affects every aspect of the job. Not only do workers face greater injuries from performing their tasks, they are also denied necessary breaks as supervisors insist that they stay on the speeding line. Some literally run to the bathroom on slippery blood-streaked floors, racing back to the line to avoid getting in trouble. Because workers are not given the time to sharpen their knives, they are made to use dull knives, which require them to strain their muscles even harder to cut through meat and bone. Fri, 08 Mar 2013 13:10:34 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4B3257F1-0E93-F40A-DBC9A5C542EF3B43 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4B3257F1-0E93-F40A-DBC9A5C542EF3B43 It has now been nearly seven months since Cass Sunstein left his job as Administrator of the White House Office of Information and Regulatory Affairs (OIRA). Much has happened in that time, most significantly an election that returned President Obama to the White House, but also a growing recognition that whatever second-term accomplishments the President is able to register on climate change and a number of other issues are likely to be brought about through regulation, not legislation. That's precisely why it's important to fill Sunstein's job with someone who'll help regulatory agencies accomplish their important work. Unfortunately, the President has yet to nominate a successor. As a result, Sunstein's temporary replacement, Boris Bershteyn, will reach a milestone in just a few days: Under the law, his time as Acting Administrator is up. It would shock no one if the White House did nothing more than strip him of the "Acting Administrator" designation. That's what it did with Jeffrey Zients, who timed out of the role of Acting Administrator of the Office of Management and Budget, and is now described as the person who "leads" OMB. (This morning, Sylvia Mathews Burwell was nominated to be OMB Director, along with Gina McCarthy for EPA Administrator and Ernest Moniz for Energy Secretary). But that's a lousy way to run OIRA, particularly now, when it is sitting on a bunch of crucial safeguards and is in desperate need of new direction. From all outward appearances, little at OIRA has changed under Bershteyn's nearly seven-month leadership, and that's bad news for the public. As I write, more than 60 proposed or final rules from agencies have been stuck at OIRA for longer than the 120 days permitted under Executive Order 12866, which allows for a 90-day review with a possible 30-day extension. Among the stalled rules: A National Highway Traffic Safety Administration (NHTSA) final rule to require "back-up" cameras on cars. About 100 people - many children - die every year in backup incidents; Congress passed a law in 2008 requiring NHTSA to issue a rule to address the problem. OIRA has held the rule for more than a year; it is beyond the legal deadline set by Congress. An FDA rule requiring food importers to verify that their products were produced under conditions that comply with the agency's food safety requirements. The rule was required under the Food Safety Modernization Act, signed by President Obama in January of 2011. OIRA has held the rule for more than a year; it is beyond the legal deadline set by Congress. An Occupational Safety and Health Administration (OSHA) proposed rule to limit worker exposure to silica, which sickens thousands and kills dozens each year. OIRA has held the rule for more than two years. Mon, 04 Mar 2013 11:22:11 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3635B002-9C75-D6A3-B08CF70273F67AFA http://www.progressivereform.org/CPRBlog.cfm?idBlog=3635B002-9C75-D6A3-B08CF70273F67AFA As we consider designing a future clean energy policy, nuclear power cannot be ignored because of its near zero carbon emissions even when considering the entire nuclear fuel cycle. It is also the case that public opinion of nuclear power has been increasingly positive, largely for those environmental reasons, though certainly it decreased after the accident at the Daiichi plant in Fukushima, Japan. Nevertheless, a strong argument can be made that nuclear power should not be considered as a clean resource in our energy portfolio for two significant reasons. First, nuclear power cannot pass a market test. Second, and complementarily, we can achieve greater gains in energy efficiency and in reduced carbon emissions by investing in alternative and renewable resources. Today, we hear the phrase that the United States is experiencing a "nuclear renaissance." Evidence of such a renaissance can be found in the fact that approximately 30 nuclear units are in some stage of planning and that the Nuclear Regulatory Commission has granted combined construction and operating licenses permits for two reactors in Georgia and two reactors in South Carolina. Compared to the situation of nuclear power over the last 30 years, these licenses indicate a significant change in the course of commercial nuclear power. Indeed, until last year, no new plants were built or ordered since 1978, and all plants that had been ordered since 1974 were canceled. Consequently, these new licenses evince a notable change in direction. It must be recognized, however, that this change has been facilitated by the financial supports, including substantial multi-billion dollar loan guarantees, authorized by the Energy Policy Act of 2005 (EPAct 2005). Still, serious problems remain. Most importantly, nuclear power cannot pass a market test to the point at which the electricity generated from that resource is cost competitive with coal, natural gas, or even alternative resources. Fri, 01 Mar 2013 09:03:47 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2643E549-CCC7-52D4-961BC18A6707B913 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2643E549-CCC7-52D4-961BC18A6707B913 CPR Member Scholar Robert L. Glicksman will testify at a hearing this morning of the House Judiciary Committee's Subcommittee on Regulatory Reform, Commercial and Antitrust Law. The hearing will promote the notion of "The Obama Administration's Regulatory War on Jobs, the Economy, and America's Global Competitiveness" (sounds awfully familiar), and the solution, the majority will say, is a series of anti-regulatory bills (many of which passed the House, but went nowhere in the Senate, in the last Congress). Professor Glicksman's testimony argues that the proposed regulatory process legislation amounts to a solution in search of a problem: The proponents of making it more difficult for agencies to regulate tend to ignore the very real costs that result from a failure to regulate even though significant costs may flow from decisions not to regulate just as they do from decisions to regulate. ... The supporters of the proposed regulatory process bills discussed above are right about one thing: The U.S. regulatory system is not promoting the public interest as well as it should be. But their diagnosis of the problem could not be farther from the mark, and their proposed bills would only make the situation worse. To fix the regulatory system, we should instead focus on finding ways to help agencies effectively achieve their statutory missions, such as protecting people and the environment. Glicksman's testimony addresses the REINS Act, Regulatory Accountability Act, and other anti-regulatory messaging efforts. Thu, 28 Feb 2013 07:39:21 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=20D040ED-F536-55CA-AC57DED0DA3D6971 http://www.progressivereform.org/CPRBlog.cfm?idBlog=20D040ED-F536-55CA-AC57DED0DA3D6971 This post was written by CPR Member Scholars Uma Outka and Joseph P. Tomain. With advancements in hydraulic fracturing technology, shale gas has dramatically altered domestic energy in the United States. Some commentators claim that shale gas can address all of our major energy problems. Some consider natural gas a bridge fuel to a clean energy future. Bills in Congress proposing a federal "Clean Energy Standard" have included natural gas as a qualifying "clean" fuel source. President Obama's recent State of the Union address emphasized natural gas and renewable energy as important to reshaping American energy use. Given the projected impacts of climate change, we have reached a point when the air and water impacts of natural gas development call on policymakers to sort through some key questions with care: How will current and future energy policy position natural gas, explicitly or by default, relative to fossil energy alternatives like renewable energy? What role should natural gas play in the U.S. energy landscape in the coming decades? If it is a bridge fuel, where is it leading? Are we poised to over-rely on natural gas, at the expense of rapid renewable energy development? It is hard to overstate the significance of the energy transition that the United States is currently experiencing. Take a quick peak back: from 1949 until about 2005, U.S. energy exports were flat; imports continued to rise, particularly petroleum; and production and consumption largely grew in tandem. In 1970, as domestic oil production peaked, consumption and production began to separate from each other. Domestic production could not keep pace with consumption and, as a consequence, we grew more dependent on foreign energy resources, especially OPEC oil. Fossil fuels dominated our energy economy with renewable resources barely scratching 2-3% of total U.S. energy production. Tue, 26 Feb 2013 11:30:50 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=17576495-9769-3CF6-BBCDADA93488DD16 http://www.progressivereform.org/CPRBlog.cfm?idBlog=17576495-9769-3CF6-BBCDADA93488DD16 This post was written by CPR Member Scholars Joseph P. Tomain & Uma Outka. With advancements in hydraulic fracturing technology, shale gas has dramatically altered domestic energy in the United States. Some commentators claim that shale gas can address all of our major energy problems. Some consider natural gas a bridge fuel to a clean energy future. Bills in Congress proposing a federal "Clean Energy Standard" have included natural gas as a qualifying "clean" fuel source. President Obama's recent State of the Union address emphasized natural gas and renewable energy as important to reshaping American energy use. Given the projected impacts of climate change, we have reached a point when the air and water impacts of natural gas development call on policymakers to sort through some key questions with care: How will current and future energy policy position natural gas, explicitly or by default, relative to fossil energy alternatives like renewable energy? What role should natural gas play in the U.S. energy landscape in the coming decades? If it is a bridge fuel, where is it leading? Are we poised to over-rely on natural gas, at the expense of rapid renewable energy development? It is hard to overstate the significance of the energy transition that the United States is currently experiencing. Take a quick peak back: from 1949 until about 2005, U.S. energy exports were flat; imports continued to rise, particularly petroleum; and production and consumption largely grew in tandem. In 1970, as domestic oil production peaked, consumption and production began to separate from each other. Domestic production could not keep pace with consumption and, as a consequence, we grew more dependent on foreign energy resources, especially OPEC oil. Fossil fuels dominated our energy economy with renewable resources barely scratching 2-3% of total U.S. energy production. Tue, 26 Feb 2013 09:39:11 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=16F13D86-F53C-556D-AF56FB59EDBF213E http://www.progressivereform.org/CPRBlog.cfm?idBlog=16F13D86-F53C-556D-AF56FB59EDBF213E Cross-posted from Triple Crisis. Renewable energy is clean, sustainable, non-polluting, reduces our dependence on fossil fuels, improves the health of communities surrounding power plants, and protects the natural environment. Who could be against it? Answer: The American Legislative Exchange Council (ALEC), a lobbying group that is active in drafting and advocating controversial state legislation. They're not just interested in energy: in recent years ALEC has supported Arizona's restrictive immigration legislation, the "Stand Your Ground" gun laws associated with the shooting death of Trayvon Martin, and voter identification laws proposed in many states. ALEC's priorities for 2013 include making it harder to bring product liability suits against manufacturers of defective products, ending traditional pension plans for public employees, promoting the diversion of public education funds into private schools and on-line education schemes, and supporting resistance to "Obamacare" health policies. When it comes to energy, ALEC wants to speed up the permitting process for mines, oil and gas wells, and power plants - and to eliminate all state requirements for the use of renewable energy. The latter goal is packaged as the "Electricity Freedom Act." In numerous states, ALEC has used studies by Suffolk University's Beacon Hill Institute (BHI) to claim that the "Electricity Freedom Act" will free ratepayers from the allegedly immense costs and job losses of renewable energy standards. In a recent study for the Civil Society Institute, my colleagues and I at Synapse Energy Economics analyzed the ALEC studies of the costs of renewable energy. Our report found fundamental flaws in both the energy data and the economic modeling used by BHI. Mon, 25 Feb 2013 09:34:33 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=11C69CAC-FE68-079B-E582B766067AAA2E http://www.progressivereform.org/CPRBlog.cfm?idBlog=11C69CAC-FE68-079B-E582B766067AAA2E Outgoing Environmental Protection Agency (EPA) Administrator Lisa Jackson made environmental justice a priority at the agency. As her tenure draws to a close, EPA released its Plan EJ 2014: Progress Report in January, summarizing the agency's considerable advances toward this important goal. The EPA deserves accolades for the seriousness with which it has treated the issue and for the progress it has made to address the unique and disproportionate burdens that environmental contamination visits on American Indian tribes and their members, on communities of color, and on low-income people. It is a pity, then, that EPA touts among its "key accomplishments" its role in overseeing Oregon's belated adoption of water quality standards that are more protective of tribal people and others who consume fish. EPA actually had to be sued in order to play this role. And EPA is taking the same lackadaisical stance elsewhere in the Pacific Northwest, allowing years to pass by while grossly underprotective standards remain in place. Tribes have long recognized that degraded environments mean both depletion and contamination of the fish, including shellfish, on which they depend - and to which they have unique rights, including rights secured by treaties and other agreements with the United States. Tribes have worked to clean up and prevent toxic contamination of aquatic environments, among other things by ensuring water quality standards (WQS) adequately protective of all those who eat fish. Fish consumption is the primary route of human exposure to a host of harmful contaminants including dioxins, PCBs, PAHs, and methylmercury. The amount of fish people consume, therefore, helps determine water quality standards - the more fish people eat, the cleaner the water needs to be to ensure that those people are not adversely affected by toxics in the water. The states of Washington, Idaho, and Alaska set standards on the assumption that people there eat just twelve fish meals per year - or 6.5 grams/day. This "fish consumption rate" (FCR) is based on a survey of the general U.S. population conducted back in 1973-74. Fri, 22 Feb 2013 13:16:02 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=031E52BF-BD37-2D80-EDF5291E290FADB2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=031E52BF-BD37-2D80-EDF5291E290FADB2 This post was written by CPR Member Scholars Lesley McAllister and Dave Owen. In the 2005 Energy Policy Act, Congress recognized that energy and water supply issues are deeply intertwined, and required the Department of Energy (DOE) to report on their nexus and make recommendations for future action within two years. (42 USC 16319). DOE started this important work, but never finished it. DOE's initial report, issued in 2007, hinted at the complexity and seriousness of the energy-water nexus. It discussed both how supplying energy requires water and supplying water requires energy. For example, thermoelectric power plants (primarily coal-fired, natural gas-fired and nuclear plants) account for about 40% of all freshwater withdrawals in the United States, roughly equal to the amount of freshwater withdrawn for irrigated agriculture. For its part, water supply and treatment consume about 4% of the electricity generated domestically, and activities associated with water use (irrigation, water heating, clothes washing and drying) consume even more. Yet our energy policies give scant attention to issues of water supply, and our water policies give scant attention to energy. Arguably, our law- and policy-making institutions are poorly suited to dealing with this extensive interconnectedness. Jurisdiction over water and energy issues is spread across more than two dozen House and Senate committees, well over a dozen federal agencies, 50 state legislatures, and countless state and local agencies. Moreover, neither our energy policies nor our water policies are giving serious enough attention to the problem of climate disruption. Climate disruption will dramatically affect water supply, as the timing, type, and amount of precipitation all change. The impacts - from drought in some areas to flooding in others - will have many consequences for energy supply and use. Power plants that use huge amounts of freshwater for cooling are likely to confront new legal and economic constraints. Hydroelectric facilities built for old stream flow regimes will have to contend with new ones. The energy demands of the water supply sector will likely grow as desalination plants are built and water is pumped into dry areas from distant places. In these ways and many others, climate disruption is likely to bring many changes to the energy and water sectors. Yet law and policy are reacting slowly, and in some contexts not at all, to those changes. Tue, 19 Feb 2013 09:15:26 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F2CEF0BC-D86C-4713-AA4F70DFA4E8C04D http://www.progressivereform.org/CPRBlog.cfm?idBlog=F2CEF0BC-D86C-4713-AA4F70DFA4E8C04D This post was written by CPR Member Scholars Joel A. Mintz and Robert L. Glicksman. Energy policy in the United States is inextricably linked with questions of environmental protection. Thus, for example, the Obama administration will soon be called upon to decide whether to approve the Keystone XL pipeline, how much (and what kind) of regulation to impose on hydraulic fracturing for natural gas extraction, whether to regulate carbon emissions from existing coal-burning power plants, what proportion of federally owned lands should be devoted to mineral extraction, and whether to allow the expansion of oil and gas drilling in northern Alaska. Each of those pending decisions will not only affect the mix of sources available to meet the nation's energy needs, but will also have immense consequences for the nation's environment and, indeed, for the future of our planet. This link between energy policy and environmental protection is nothing new. It has been evident at least since the beginning of the modern environmental era in the United States. Many of the precedent-setting judicial decisions throughout this era emerged from cases involving a potential clash between energy needs and environmental consequences. These have included disputes over the environmental impacts of coal leasing in the northern plains, offshore oil and gas leasing, geothermal development, hydroelectric power production that is potentially damaging to fish and other aquatic life, the issuance of patents to extract hardrock minerals, and the back end of the nuclear fuel cycle. Despite this longstanding and apparent overlap of energy and environmental policy, it is perhaps unfortunate that energy law and environmental law in the United States are both based upon a disparate and complicated set of federal and state statutes, regulations, and policies. They exist in separate spheres, with occasional exceptions such as the amendments to the Federal Power Act that require the Federal Energy Regulatory Commission to take the impacts of hydroelectric power production on anadromous fish and other aquatic life into account when making licensing decisions on hydropower facilities. Notwithstanding this tendency toward fragmentation at the national level, one visionary statute may provide a valuable framework for harmonizing the nation's important environmental concerns with its energy needs: the National Environmental Policy Act of 1969 (NEPA). Mon, 18 Feb 2013 09:57:29 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EDCF0F6A-0373-F75F-E614CB1E4F0679C8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=EDCF0F6A-0373-F75F-E614CB1E4F0679C8 This week, GAO provided a helpful, unfortunately annual, reminder that EPA must do more to keep the IRIS program relevant for chemical risk management. For the fifth year running, EPA's programs for chemical risk management (IRIS among them) have been deemed in need of attention to avoid becoming so ineffective as to be considered a waste of agency resources. GAO notes minimal progress by the IRIS program on completing assessments in the last two fiscal years (4 assessments each year). GAO's concern about the pace of new assessments echoes the concerns raised by CPR and other public health advocates at a Nov. 2012 stakeholder meeting convened by Dr. Kenneth Olden, the new head of EPA's National Center for Environmental Assessment. IRIS program management recently delivered a status update to the National Research Council, explaining additional changes to the IRIS process that are aimed at reducing the time it takes to assess the long-term risks posed by toxic chemicals in our air, water, and soil. Some changes are innovate staffing and management proposals, such as teams of specialists in certain risk assessment issues who will consult with other IRIS staff on particular chemical assessments. I'm especially encouraged by the development of the Comment Tracker Database, which will allow IRIS staff to track common criticisms and respond to them in a consistent manner. The database will also be a good tool for analyzing the utility of the various rounds of stakeholder review that are part of the IRIS process. By my count, it's now up to six rounds per assessment, since IRIS management have decided to add a public meeting at the literature review stage. As I said at the November stakeholder meeting, based on our own observations of the similarity of issues raised in recursive rounds of stakeholder review, we expect assessments could be completed more quickly if stakeholder review were consolidated into a single comment period that ran concurrent with the expert peer review. Should the database bear that out further, IRIS management ought to feel comfortable culling some of the extraneous review periods. Fri, 15 Feb 2013 17:02:47 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DFE1557F-F4C2-B24B-198E6C47DBB0A0D2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DFE1557F-F4C2-B24B-198E6C47DBB0A0D2 Earlier this week, Karen Mills, the current Administrator of the Small Business Administration (SBA), announced her intention to leave office, opening up another second-term vacancy for President Obama to fill in the coming months. The SBA position is unlikely to attract as much media attention or pundit speculation as the EPA or Energy Interior posts, but it could have a big impact on whether the Obama Administration is able to take on the long to-do list of public health, safety, and environmental challenges that the nation currently faces. The next SBA Administrator can and should begin the critical process of reshaping the controversial SBA Office of Advocacy so that it focuses on helping truly small businesses, without undermining regulatory safeguards. A recent CPR white paper I co-authored examined how the Office of Advocacy uses federal tax dollars to try to block health, safety, and environmental regulations, often at the behest of large companies. This small and largely unaccountable office, the paper argues, exerts significant influence over the federal rulemaking process, and its work all too often does not benefit truly small business. Rather, the Advocacy office typically echoes the viewpoints of large corporate interests who are already well represented in the rulemaking process, often with the result of watering down or bottling up safeguards needed to protect people and the environment against unreasonable risks. The white paper concludes by offering several recommendations aimed at creating a more productive role for the Office of Advocacy to play in the federal regulatory system. First, it recommends reorienting the Advocacy office's mission so that it works toward promoting small business competitiveness - that is, finding ways to help small businesses meet effective regulatory standards without undermining the capacity to compete with larger firms (what we call "win-win" regulatory solutions). Second, mindful that some of the "small" businesses the Advocacy office thinks are its constituents have as many as 1,500 employees, the white paper recommends restricting the Advocacy office's focus to truly small firms - those with 20 or fewer employees - which lack the resources and expertise to participate meaningfully in individual rulemakings on their own. Fri, 15 Feb 2013 09:06:55 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DE2DBFA3-C936-3FFD-C1120DF208B6A3B9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DE2DBFA3-C936-3FFD-C1120DF208B6A3B9 [[Ed. Note: This post is a reprint, with minor updates, of McGarity's post one year ago on the first anniversary of the proposed silica rule arriving at OMB. Little has happened on the issue in the past year - except more people have been sickened or killed by silica exposure.]] Today marks the second anniversary of an event that received little media attention, but marked a major milestone in the progression of a regulation that is of great importance to thousands of Americans whose jobs bring them into contact with dust particles containing the common mineral silica. Exactly two years ago today the Occupational Safety and Health Administration (OSHA) completed a proposed rule requiring employers in the mining, manufacturing and construction industries to protect their employees from silica dust particles as they engage in such activities as sandblasting, cutting rocks and concrete, and jackhammering. Silica dust is no newcomer to the growing list of workplace hazards. Public health professionals have known for more than one hundred years that exposure to airborne silica dust can cause a debilitating disease caused silicosis. In 1929, as the nation entered the Great Depression, hundreds of workers made their way to Gauley Bridge, West Virginia to work on the Hawk's Nest diversion project, a massive digging operation that created a three-mile long tunnel through Gauley Mountain to divert the flow of the New River for a Union Carbide power generation facility. Before the project was completed, more than one hundred workers had died of silicosis, and many more faced the prospect of slow and painful deaths as a result of their exposure to silica dust. The Hawk's Nest tragedy inspired public health officials to establish limitations on workplace exposures to silica dust, but they did not prevent workers from contracting the dreaded disease. Scientists estimate that thousands of workers still contract silicosis, resulting in hundreds of deaths, every year. And silica dust exposure has been linked to other diseases, like cancer, as well. Thu, 14 Feb 2013 09:20:21 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D913A772-BAB5-697D-6638AEC1CF3053DB http://www.progressivereform.org/CPRBlog.cfm?idBlog=D913A772-BAB5-697D-6638AEC1CF3053DB We will phase out fossil fuels. We have no choice. They are a finite resource and at some point they will run out. Admittedly, coal will not run out nearly as quickly as oil, but sooner or later all fossil fuel resources will run out. The only question we face is whether we phase out fossil fuels before we have set in motion climate disruption's worst effects or instead just allow a phase-out to occur through price shocks and shortages that we are ill-prepared to cope with, and risk a climate catastrophe. Obviously, a managed phase-out makes much more sense. Climate disruption will plague us with increasingly violent storms, flooding, drought, a spread of infectious diseases, and other calamities. A reasonably rapid phase-out will help us avoid some of these impacts by first reducing and eventually eliminating emissions of carbon dioxide, the principal greenhouse gas. At the same time, switching to cleaner fuels will save thousands of lives annually and many more illnesses right away, as burning the fossil fuels that cause climate disruption also causes particulate pollution and urban smog (tropospheric ozone). A phase-out of fossil fuels also would gradually end destruction of land through coal mining and disastrous oil spills, like that of the Deepwater Horizon. Although we cannot end fossil fuel use right away, we must move in the direction of a phase-out as rapidly as we can. Carbon dioxide emitted in the atmosphere adds to the preexisting store of carbon and remains there for a very long time. Hence, every year of inaction adds to a cumulative store of carbon in the atmosphere, making the climate disruption problem irreversibly worse. We must rid ourselves of the illusion that we can drill our way to energy and price security. Oil trades on a world market, even oil coming from the United States. In 2011, we imported 45% of our oil from abroad, more than half from OPEC countries, and that was the lowest percentage since 1995. Renewable energy, however, relies overwhelmingly on domestic fuels. You cannot ship sunlight or wind to China. Wed, 13 Feb 2013 10:03:40 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D414FA38-E3BE-C69B-C83A2BEDD971EE63 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D414FA38-E3BE-C69B-C83A2BEDD971EE63 This post was written by CPR President Rena Steinzor and Media Manager Ben Somberg. The White House issued a fact sheet last Friday presenting "Examples of How the Sequester Would Impact Middle Class Families, Jobs and Economic Security." The consequences of the impending budget cuts from the "sequester" are not some abstract problem; they're serious dangers, like this one: The Food and Drug Administration (FDA) could conduct 2,100 fewer inspections at domestic and foreign facilities that manufacture food products while USDA's Food Safety and Inspection Service (FSIS) may have to furlough all employees for approximately two weeks. These reductions could increase the number and severity of safety incidents, and the public could suffer more foodborne illness, such as the recent salmonella in peanut butter outbreak and the E. coli illnesses linked to organic spinach, as well as cost the food and agriculture sector millions of dollars in lost production volume. We applaud the White House for explaining to the public the importance of our food safety system. But here's the irony: the Administration is simultaneously moving forward with a separate plan that would weaken the food inspection system in the area of poultry processing. The USDA issued a proposed rule in January of last year that will take many federal food inspectors off the poultry lines, replacing their work in part with less-trained company inspectors, and the agency is on the verge of sending the final version to the White House for approval. Tue, 12 Feb 2013 15:44:29 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D0269E52-0598-D165-8A8F4AD14B8C5522 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D0269E52-0598-D165-8A8F4AD14B8C5522 This post was written by CPR Member Scholars Alexandra Klass and Lesley McAllister. Taxes and energy are subject to constant partisan debate. Both are at play in politically-charged discussions about the government's role in promoting renewable energy, particularly wind energy. Since 1992, the federal government has granted a production tax credit (PTC) (currently 2.2¢ per kilowatt/hour (kWh)) for production of certain renewable energy. The credit initially focused on wind, closed-loop biomass, and poultry-waste energy resources; in 2004 Congress expanded the program to include open-loop biomass, geothermal, and several other renewable energy sources. With this support, the wind energy industry has begun to take off. By 2011, installed wind capacity exceeded 45 gigawatts (GWs), accounting for about 4% of U.S. installed electricity capacity, 3% of total U.S. generation, and more than 10% of total generation in several states. And in 2012 alone, the industry added more than 13 GW of wind energy, surpassing the previous record of 10 GW in 2010. Yet unlike the significant tax benefits for fossil fuels, which have been in place for many decades, the PTC has never been a permanent part of the tax code. Instead, it was created with set expiration dates, and expires on those dates unless Congress specifically reauthorizes it. This resulted in the PTC expiring at the end of 1999, 2001, and 2003, and almost expiring in numerous other years, including 2012. Although Congress extended the deadline for one more year as part of the "fiscal cliff" budget negotiations in January 2013, this temporary fix means that the debates over the long-term use of tax benefits to encourage renewable energy will continue. These expiration cycles have had a significant impact on project investment, wind energy jobs, and technology development. Generally, investment increases in the 12 months leading up to the real or threatened PTC expiration and then drops afterward. These cycles create uncertainty, and research has shown that this uncertainty, even more than the lack of the PTC in "off" years and the pending expiration in other years, drives investment volatility and hurts the industry. While 2012 was a record year for wind installations, most of the investments in those projects came in the previous year and the uncertainty over the PTC expiration in 2012 means that developers have not planned significant projects for 2013. Tue, 12 Feb 2013 08:47:24 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CEA8C992-BD12-B999-EF92A40AE2F89CD6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CEA8C992-BD12-B999-EF92A40AE2F89CD6 Often lost in today's debates over whether to continue tax benefits for renewable energy is a historical perspective on the significant support the federal government has provided and continues to provide the fossil fuel industry. Tax benefits for the energy industry as a whole totaled over $20 billion in 2011, which is, and historically has been, about 2% of total U.S. tax expenditures. In general, the United States has used tax benefits to first support development of domestic fossil fuel and nuclear production for nearly a century and, more recently, to support the development of domestic renewable energy. Until 2005, virtually all energy-related tax expenditures and benefits went toward stimulating domestic oil and gas production with the amount claimed by renewable energy almost negligible. In recent years, tax benefits for renewable energy have surpassed that of fossil fuel production. For instance, in 2011, the breakdown of tax expenditures and other tax-related benefits within the energy sector was as follows: 68% to renewable energy (including ethanol and biodiesel), 15% to fossil fuels, 10% to energy efficiency programs, 4% to nuclear energy, and 2% to other. These numbers can be misleading, however, because they do not take into account the decades of continued tax benefits the federal government provided to the fossil fuel sector, which helped those industries become the dominant economic and political forces they are today. For instance, one study shows that over the period of years the federal government has supported the oil and gas industry, the average annual subsidy for that industry sector was nearly $5 billion; for nuclear, the average annual subsidy was $3.5 billion; for biofuels, the average annual subsidy was just over $1 million; and for other renewables, the average annual subsidy was $0.37 billion. Fri, 08 Feb 2013 09:44:27 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BA437397-99C9-3CB0-5A37067A50853704 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BA437397-99C9-3CB0-5A37067A50853704 Eighty percent of the antibiotics used in this country are given not to humans, but to animals destined for the human food supply. Most of these antibiotics are given to the animals not for the purpose of treating active infections, but for the purposes of promoting growth and preventing infection in the microbe-rich environment of the modern factory farm. For over 40 years, the Food and Drug Administration (FDA) has been collecting evidence that this agricultural practice contributes to the development of antibiotic-resistant infections in the human population. Based on such evidence, in fact, the agency proposed to withdraw its prior approvals for two antibiotics used in animal feed due to the risks they posed to human health. The agency promised to hold hearings on the matter. That was over 35 years ago. On Friday, the future of this issue will be debated in oral arguments in a key case before the Second Circuit Court of Appeals. In the last 35 years, the FDA has continued to accumulate evidence of the link between administering subtherapeutic doses of antibiotics to food animals and the development of antibiotic-resistant infections in the human population. Indeed, the agency itself has repeatedly acknowledged the link between herd- and flock-wide administration of antibiotics to food animals and the development of antibiotic-resistant disease in humans. But still it has done nothing to take the drugs off the market. Not surprisingly, after watching the FDA sit still for decades, public health and environmental organizations eventually grew restless, and petitioned the agency to hold the hearings and to withdraw the relevant approvals. In 2011, almost 35 years after finding that using antibiotics in animal feed was linked to antibiotic resistance in humans, the FDA finally answered the petitions. It denied them. The agency explained -- without a trace of irony -- that the process for withdrawing these approvals would simply take too long and that the agency was thus instead encouraging the animal feed industry to take voluntary measures to address the overuse of antibiotics. The FDA argued that the process for withdrawing approvals would take too long because the agency thought itself legally bound to offer formal, trial-type hearings on the question whether the relevant antibiotics were "safe" within the meaning of the relevant statute, the Food, Drug and Cosmetic Act. Wed, 06 Feb 2013 14:55:58 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B11413C5-E411-9CD4-EFB4C9C7C3F4DE88 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B11413C5-E411-9CD4-EFB4C9C7C3F4DE88 Cross-posted from Legal Planet. Cost-benefit analysis has become a ubiquitous part of regulation, enforced by the Office of Management and Budget. A weak cost-benefit analysis means that the regulation gets kicked back to the agency. Yet there is no statute that provides for this; it's entirely a matter of Presidential dictate. And reliance on cost-benefit analysis often flies in the face of specific directions from Congress about how to write regulations. There are a few exceptions, such as regulations involving pesticides, bans on toxic substances, and thermal water pollution, where Congress called for EPA to balance costs and benefits equally. But almost all environmental laws direct agencies to use some standard other than cost-benefit analysis. The statutes generally place a greater weight on environmental quality and public health than on cost. For example, it's fairly obvious that Congress did not contemplate much of a role for cost-benefit analysis when it passed the Clean Air Act. Some key provisions of the Act are based completely on health risks and do not allow consideration of costs. When costs are a factor, Congress carefully specified factors to be taken into account and provided different standards for different situations. All of the fine distinctions in the table below would be erased if all regulations are simply based on the same cost-benefit standard. Tue, 05 Feb 2013 09:09:46 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AAB09B4F-CBF6-0F5F-DF120E1DF1A52F14 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AAB09B4F-CBF6-0F5F-DF120E1DF1A52F14 President Obama's focus in his second inaugural address on the need to address climate change was welcome after many months of near silence on this critical issue. While tackling climate change will require significant efforts limiting emissions from power plants, automobiles, and other sources, the President has recognized in the past that improving energy efficiency in general, and setting stricter energy efficiency standards for appliances specifically, can have a major impact on reducing both U.S. greenhouse gas emissions and consumer energy costs. Indeed, according to one recent study: taking into account products sold from the inception of each national appliance standard through 2035, existing standards will net consumers and businesses more than $1.1 trillion in savings cumulatively. ... On an annual basis, products meeting existing standards reduced U.S. electricity use in 2010 by about 280 terawatt-hours (TWh), a 7% reduction. The electricity savings will grow to about 680 TWh in 2025 and 720 TWh in 2035, reducing U.S. electricity consumption by about 14% in each of those years. Until 2009, with the rise of the Tea Party, energy efficiency had been one of the few bipartisan issues surrounding energy policy, with both Republic and Democratic Congresses and Presidents recognizing that new standards benefit a range of interests, including business groups, consumers and the environment. Moreover, appliance manufacturers and interest groups often favor new standards, which can lead to economies of scale, cost savings, and more predictability for the future development of products. Because of Congressional actions mandating stricter efficiency standards for a range of products, current legislation does not stand as a major barrier to improving appliance efficiency standards. Instead, the problem more often lies within Department of Energy and reviewing agencies such as the Office of Management and Budget. The lengthy and expensive process of setting efficiency standards, and then OMB review of those standards, has consistently resulted in significant delays and less-than-optimal standards, despite Congressional mandates and deadlines. Indeed, a report published last week by the Appliance Standards Awareness Project and American Council for an Energy-Efficient Economy concludes that "[d]elays in updating energy efficiency standards for certain appliances and devices could cost consumers and businesses $3.7 billion in lost savings -- and lead to an extra 40 million metric tons of excess carbon dioxide emissions." The report found that "[d]uring the first two years of the Obama administration, DOE and OMB worked well to complete new standards on time. But over the past two years, OMB's reviews have become lengthy - as long as 16 months in one case - and DOE has fallen behind." Mon, 04 Feb 2013 09:03:32 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A584B079-F99A-D2DE-82D5CAD80FC68C22 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A584B079-F99A-D2DE-82D5CAD80FC68C22 Congress created the Office of Advocacy (Office) of the Small Business Administration (SBA) to represent the interests of small business before regulatory agencies. It recognized that, unlike larger firms, many, if not most, small businesses can't afford to lobby regulators and file rulemaking comments because of the expense involved. The Office was supposed to fill this gap by ensuring that agencies account for the unique concerns of small businesses when developing new regulations. Instead, as new reports from the Center for Progressive Reform and the Center for Effective Government document, the Office of Advocacy is using its resources and influence to weaken the regulatory process, usually at the behest of big business. The Office of Advocacy has steadily expanded its role in the rulemaking process, creating numerous opportunities to oppose regulation, slow the regulatory process, and dilute the protection of people and the environment against unreasonable risks. Its activities are frequently undertaken in conjunction with corporate lobbies and trade associations that represent the interests of their large business members. Often, it is difficult to find even a sliver of sunlight between the positions taken by the Office and those taken by such prominent regulatory opponents as the big-business-focused U.S. Chamber of Commerce. It turns out that's not by accident: The Center for Effective Government's report exposes emails between the Office and big business interests demonstrating that the Office takes its lead from big business lobbyists. The Office of Advocacy bolsters its anti-regulatory efforts by sponsoring research projects with the obvious aim of weakening the U.S. regulatory system. Non-governmental researchers carry out these projects under contracts awarded by the Office with little in the way of oversight or peer review. At least in some cases, these "research" papers are thinly veiled political documents. The most egregious example is the 2010 study by economists Nicole Crain and Mark Crain, which purported to find that the annual cost of federal regulations in 2008 was about $1.75 trillion. As CPR and others demonstrated, the Office ignored serious methodological problems with the report, which rendered it implausible, apparently because the results fit with the Office's anti-regulatory narrative. Tue, 29 Jan 2013 10:35:52 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=86F31460-F8AD-C941-496E7E9B37CBB7A5 http://www.progressivereform.org/CPRBlog.cfm?idBlog=86F31460-F8AD-C941-496E7E9B37CBB7A5 CPR Member Scholar David Driesen of Syracuse University has an op-ed in the January 28 Syracuse Post-Standard making the case that the President should reinvigorate his regulatory agenda, in part by diminishing the Office of Information and Regulatory Affairs' power to stifle regulations. He puts the argument in the context of the pressing need for action on climate change, writing: Obama should put an end to obstructionist OIRA review in light of the urgency of climate disruption and the failures this review has led to. Specifically, he should issue an executive order requiring prompt regulation of major sources of greenhouse gases under the Clean Air Act, including a schedule for prompt rulemaking. This order should direct OIRA to work to speed and strengthen environmental, health and safety standards. He should also abolish OIRA's authority to review minor standards, since such reviews waste scarce government resources excessively analyzing cheap measures to protect people from important threats. Finally, he should order OIRA to stop demanding cost-benefit analysis of proposed environmental, health and safety protections. We cannot reliably compare the value of human life or a preserved ecosystem to the costs of regulation. Key uncertainties often make quantification of the number of deaths and illnesses or the magnitude of ecological destruction addressed through environmental standards impossible.... We barely made it through the first round of the 'fiscal cliff battle,' but we will still face an ongoing climate crisis unless Obama abandons business-as-usual in favor of doing everything we feasibly can do to reduce the coming damage. He can do a lot with the stroke of a pen, perhaps even enough to persuade some House Republicans to come to the table to help shape future environmental policy. Read the full article, here. Mon, 28 Jan 2013 09:04:24 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8178C8AA-D840-5CC6-2686BD89AF142924 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8178C8AA-D840-5CC6-2686BD89AF142924 Cross-posted from RegBlog. Nobody seems to have noticed, but the Center for Progressive Reform (CPR) recently recommended abolition of review by the Office of Information and Regulatory Affairs (OIRA) based on cost-benefit analysis (CBA). Its report on recommendations for the second Obama Administration made this proposal the sixth item in a list of seven executive orders that Obama could issue with a "Stroke of the Pen" (from the report's title). In place of CBA-based review, which has often stymied or delayed needed environmental protections, CPR recommends a complete OIRA role reversal, charging it with addressing regulatory delay and helping agencies "achieve their statutory missions." CPR also recommends abolishing review of minor rules altogether and improving transparency. What was first on CPR's list of "stroke of the pen" reforms? An executive order to take action on climate mitigation - which would include a detailed list of regulatory actions with accompanying deadlines. My hunch is that the Obama Administration is going to be more inclined to adopt recommendation number 1 than recommendation number 6, particularly given the attention to the subject in the President's Second Inaugural Address. This does not mean that CPR erred in recommending abolishing CBA-based OIRA review. CPR is a virtual think tank of legal scholars, not a traditional environmental group, and it should put forward sound reform proposals that might be adopted, if at all, only after a very long period of debate and discussion. Thu, 24 Jan 2013 11:52:37 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6D5EB08B-E9A4-A679-27B74EE5DCC5B4DE http://www.progressivereform.org/CPRBlog.cfm?idBlog=6D5EB08B-E9A4-A679-27B74EE5DCC5B4DE Cross-posted from Triple Crisis. Climate science paints an ever-more-detailed picture: irreversible, catastrophic events are becoming increasingly likely as greenhouse gas emissions continue to rise. Climate economics, particularly in its policy applications, lags behind: leading models and analyses frequently ignore the extreme risks and the intergenerational aspect of the problem - and rely on simplistic and dated interpretations of the underlying science. Yet the state of the art has progressed rapidly, in the research literature on climate economics as well as science. To address this problem, Liz Stanton and I wrote Climate Economics: The State of the Art, which has just been published by Routledge. Our book grew out of a request from the World Wildlife Fund for an update on climate economics since the Stern Review. In that 2006 review, commissioned by the British government, Nicholas Stern argued persuasively for a new approach to the economics of climate change, emphasizing arguments for a very low discount rate and a focus on catastrophic risks. As we explain, both science and economics have continued to advance since Stern's path-breaking work. After a review of "climate science for economists," we examine three major areas: the treatment of climate damages in economics; new developments in economic theory; and the economics of mitigation and adaptation. Here are a few highlights from our book: Recent studies suggest that peak temperatures, once reached, will persist for centuries, if not millenia. Mitigation scenarios have often assumed that the world can "overshoot" a target such as 2°C of warming and then come back to it through later emission reductions; since this option is not available, much more stringent reductions are needed for climate stabilization. Wed, 23 Jan 2013 12:33:37 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6878B6BC-BA5B-1094-FBC33D6450D43934 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6878B6BC-BA5B-1094-FBC33D6450D43934 The National Environmental Policy Act of 1969 (NEPA) was one of the first environmental statutes of the modern era. Best known for its environmental impact statement (EIS) requirement, and for establishing the Council on Environmental Quality, NEPA has been the basis for numerous lawsuits challenging federal government projects that will or may have an adverse impact on the human environment. Despite that fact, however, one brief, yet potentially crucial, portion of the statute has been all but overlooked by environmental public interest lawyers and the federal courts: sub-section 102 (1). This pithy provision states: "[t]he Congress authorizes and directs that, to the fullest extent possible[,] the policies, regulations and public laws of the United States shall be interpreted and administered in accordance with the policies set forth in this [Act]." NEPA's stated policies are broad indeed. The statute's announced purpose is "to declare a national policy which will encourage productive and enjoyable harmony between man and his environment," and "to promote efforts which will prevent or eliminate damage to the environment and biosphere and stimulate the health and welfare of man." Moreover, NEPA declares it to be the "continuing policy" of the federal government to "create and maintain conditions under which man and nature can exist in productive harmony, and fulfill the social, economic, and other requirements of present and future generations of Americans." On a careful reading, several aspects of sub-section 102(1) are apparent. First, the subsection is unquestionably mandatory. Congress has not merely urged or suggested that the interpretation and administration of the laws referred to in the provision be consistent with NEPA's thoughtful policies, it has required that to occur in clear terms. Second, the sub-section makes clear that what is to be construed and implemented consistent with NEPA's policies are--without limitation--all federal legal authorities that may be described as policies, regulations or public laws. Thus, the provision implicitly directs that all of the Nation's environmental laws must be interpreted and administered in the fashion mandated by the provision. Third, NEPA plainly requires that the legal interpretation and administration to which it refers must take place "to the fullest extent possible." As that phrase has been interpreted in the courts in the context of NEPA's EIS requirement - and consistent with the statute's brief but clear legislative history - it is evident that what Congress has required in sub-section 102 (1) is nothing less than a vigorous and wholehearted application of NEPA's environmentally protective policies. Tue, 22 Jan 2013 12:13:21 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=633FC95C-B54A-CA36-8E58F47C5F4C16CD http://www.progressivereform.org/CPRBlog.cfm?idBlog=633FC95C-B54A-CA36-8E58F47C5F4C16CD Yesterday, the Mine Safety and Health Administration (MSHA) finalized the long overdue Pattern of Violations rule, a measure that will enhance the agency's enforcement authority by making it easier for the agency to hold scofflaw mines strictly accountable for repeatedly and needlessly putting their workers at risk of chronic illness, severe injury, or even death. The deterrent effect of this enhanced enforcement authority will discourage delinquent mine operators from cutting corners on health and safety, a development that will produce significant benefits for America's miners. MSHA estimates (see page 6) that the rule will prevent nearly 1,800 non-fatal injuries over the next 10 years, in addition to reducing instances of illnesses and fatalities. The Pattern of Violations rule was one of the high priority regulatory actions that MSHA announced in response to 2010's Upper Big Branch Mine disaster, in which 29 miners were killed in a massive mine explosion. Several investigations of the incident revealed that the explosion was precipitated by a deadly combination of hazardous conditions including improperly maintained mining equipment, inadequate ventilation, and insufficient rock dusting; the Upper Big Branch Mine had had been repeatedly cited for many of these kinds of hazards in the months prior to the disaster. Between 2005 and the time of the explosion, MSHA had cited the Upper Big Branch Mine for 1,342 violations. In 2009 alone, the agency cited the mine for 515 different safety violations, around 200 of which MSHA deemed to be "significant and substantial," or violations that could reasonably be expected to lead to a serious injury or illness. The Upper Big Branch Mine's operator - the now defunct Massey Energy Company - also had a long history of operating mines with similar health and safety violations. Under the existing rules, delinquent mines that in practice had a long pattern of violations could avoid official "pattern of violations" status - which would enable MSHA to order the mine to withdraw workers from any part of the operation that it subsequently finds to have a significant and substantial violation - by appealing the citations. The Massey Energy Company had resorted to that tactic with Upper Big Branch, and MSHA had also made an error that stopped the company from moving a step closer to receiving a pattern of violation notification. Had a proper Pattern of Violations rule been in place, and had MSHA properly implemented it, the Upper Big Branch Mine disaster might have been prevented. Fri, 18 Jan 2013 16:15:58 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4F847A3F-9DD9-52AB-BB0A14FF7A9EF232 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4F847A3F-9DD9-52AB-BB0A14FF7A9EF232 Secretary of Interior Ken Salazar will leave a decidedly mixed legacy from his four years at the helm of the federal department responsible for protecting many of America's vast open spaces, treasured parks, and disappearing wildlife. Salazar's Interior Department enjoyed some high-profile successes and on occasion took action to better protect important resources. It reached a multi-billion dollar settlement in the long-running and contentious Cobell litigation, a massive class action suit by Indian tribal members over government mismanagement of revenue from tribal resources. The Department under Salazar established seven new national parks and 10 new wildlife refuges. But in many areas, while Interior took steps to respond to crises and restore some of the protections for land and wildlife that had languished for nearly a decade, it missed important opportunities to keep pace with twenty-first century threats to natural resources. Salazar's record on oil and gas development provides a good example. He angered Republicans and industry officials when he rolled back sweetheart oil and gas leases in Utah issued in the waning months of the Bush Administration. Confronted by the epic Deepwater Horizon spill, Salazar implemented a controversial moratorium on offshore drilling and overhauled the federal agency responsible for managing federal oil and gas leasing and development. On the other hand, Interior reforms ultimately stopped well short of those needed to better prevent future large oil spills, and the Department ramped up both on and offshore oil and gas leasing in the Arctic. Thu, 17 Jan 2013 13:37:47 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=49CD4F03-CA09-7FCF-FD1A4C767A29C295 http://www.progressivereform.org/CPRBlog.cfm?idBlog=49CD4F03-CA09-7FCF-FD1A4C767A29C295 When I teach my environmental law and food safety law students how to go about ascertaining the meaning of implementing regulations, I tell them to start with the sections of the regulations devoted to definitions and exemptions. Quite frequently the most hard-fought controversies during the rulemaking process through which the agency promulgated the regulations were over the definitions and exemptions. That certainly seems to be true in the case of the long-awaited Food and Drug Administration's (FDA) proposed "Standards for the Growing, Harvesting, Packing, and Holding of Produce for Human Consumption," which the Obama Administration, with much fanfare, issued on January 4. According to FDA's analysis of the economic impact of the proposal, almost 80 percent of the country's produce growers will not have to meet the standards because they are not covered in the definitions or are otherwise exempt. The proposed rule, which was required by the landmark Food Safety Modernization Act of 2010, would for the first time establish legally enforceable standards for produce farmers. The standards set out requirements for sanitizing tools and equipment, for ensuring that agricultural water is safe and sanitary, for using animal-based fertilizers (e.g., compost) on food crops, for reducing contamination from domesticated and wild animals, and for training field workers and ensuring that they employ sound hygiene practices. Mon, 14 Jan 2013 09:27:11 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3974A052-C5BB-190B-1293D7A70F09E972 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3974A052-C5BB-190B-1293D7A70F09E972 Just how accountable is an employer to an employee if the employee is only working for one day? In areas from construction to farm work, warehouse labor to hotel housekeeping, contingent work is growing or already common. Rather than hire permanent, full-time employees directly, many employers hire workers indirectly through 3rd party agencies, or on contracts as short as a day. Too often, workers in these fields see little job security, low wages, minimal opportunities for advancement, and, all too often, hazardous working conditions. Contingent workers are disproportionately racial minorities and often come from vulnerable socio-economic backgrounds. A new CPR report released today, At the Company's Mercy: Protecting Contingent Workers from Unsafe Working Conditions, looks at the hazards in these four work areas and the unique safety challenges that arise from contract-based work. The report argues that safety dangers are magnified because contingent workers don't always get the training they need, and high injury rates are acceptable to many employers since the employees are non-permanent, effectively expendable. Employers who hire workers on a contingent basis do not directly pay for workers' compensation and health insurance, and are therefore likely to be insulated from the insurance premium rate increases that would ordinarily follow frequent workers' injuries. The report issues a set of recommendations for improving safety specifically for contingent workers. Congress can amend the Occupational Safety and Health Act to include a private right-of-action that allows any person to bring suit in federal court against any other person who violates provisions of the statute or its implementing regulations. And the Occupational Safety and Health Administration (OSHA) should take a number of steps, including establishing rules to require employers to provide better training; strengthening enforcement in industries where contingent work is prevalent; and issue ergonomics standards in the industries in which contingent workers suffer high rates of musculoskeletal injuries. The report was written by CPR Member Scholars Martha McCluskey, Thomas McGarity, and Sidney Shapiro, and Senior Policy Analyst Matthew Shudtz. Fri, 11 Jan 2013 09:07:58 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=29F01979-FE27-F7BF-4B01FC1F52F2D138 http://www.progressivereform.org/CPRBlog.cfm?idBlog=29F01979-FE27-F7BF-4B01FC1F52F2D138 Cross-posted from Environmental Law Prof Blog. Last week, a federal district court in Virginia decided an urban stormwater case that may ultimately have far more significance than the Supreme Court's more widely-watched decision in Los Angeles County Flood Control District v. Natural Resources Defense Council. The case is Virginia Department of Transportation v. U.S. Environmental Protection Agency, and it involves a challenge to a proxy TMDL for Accotink Creek, a Potomac River tributary in northern Virginia. On its face, that statement may not sound particularly intriguing or important, but it is, and a little background is in order. Section 303 of the Clean Water Act requires states to identify waterways that do not meet water quality standards, and to develop "total maximum daily loads," or TMDLS, for those waterways. In essence, TMDLs are pollution budgets. They usually identify which pollutants are causing impairment, and they then specify how much of a "load" of each offending pollutant the waterway could handle without being impaired. What happens next is largely up to the states. While EPA must step in to prepare a TMDL if the state fails to do so, states have broad discretion to decide whether and how to translate the TMDL into controls on individual sources. The Accotink Creek TMDL used an innovative approach. A traditional TMDL would specify a daily load for each offending pollutant, and would express that load as a mass. For waterways impaired by urban stormwater runoff, however, that traditional approach doesn't work very well, largely because saying exactly how much mass of each pollutant a waterway can accommodate each day is often quite difficult. Watershed scientists often have a much better sense of how much stormwater runoff a waterway can accommodate without being impaired, or even how much impervious cover in a watershed will trigger impairment. Consequently, the Accotink TMDL and several recent TMDLs developed in other states have used proxy measures of pollutant loading. For Accotink Creek, the proxy was the volume of stormwater runoff, and several TMDLs in Vermont have used similar approaches. In Maine and Connecticut, the proxy of choice has been impervious cover. Thu, 10 Jan 2013 09:43:15 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=24EA062A-92E3-375C-A8E64B2DDA47D8BE http://www.progressivereform.org/CPRBlog.cfm?idBlog=24EA062A-92E3-375C-A8E64B2DDA47D8BE The Supreme Court ruled today that the 9th Circuit committed a legal error in holding the Los Angeles County Flood Control District liable for violations of its Clean Water Act (CWA) "municipal separate storm sewer system" (or MS4) pollution discharge permit. The suit, Los Angeles County Flood Control District v. Natural Resources Defense Council, had been initiated by NRDC and allied environmental groups, and its victory below was reversed. A loss for the environment? Actually, the careful and narrow Supreme Court ruling dodged a potential weakening of the CWA, and appears to have left open for consideration whether conceded permit violations by the Los Angeles County District meant it deserved to be held liable. The case potentially could have weakened the centrality of self-reported discharge permit violations and decades of rulings that such violations result in strict liability. The Court, however, dodged such a result, explicitly leaving that issue open in reversing and remanding the case. [Disclosure - I played a limited role in advising the plaintiff-respondent NRDC in this case.] The case involved numerous self-reported water quality violations by the Los Angeles County Flood Control District. The District, and numerous other municipalities discharging stormwater into the same water bodies, were together allowing too many pollutants to flow into the Los Angeles and San Gabriel Rivers, degrading the water bodies more than allowed in the District permit The 9th Circuit, however, wrote an opinion revealing discomfort with holding the District liable if there was no proof that the Los Angeles County District itself was responsible for such exceedances. And in so doing, the 9th Circuit made either a legal or factual error about the location of the CWA monitoring stations and the ability to attribute causation for violations to the Los Angeles County District. Furthermore, as the District argued before the Supreme Court, parts of the 9th Circuit ruling could be read to violate the Supreme Court's 2004 Miccosukee decision, which held that so-called discharges that just move polluted water from one part of a water body to another part of the same water body are not "discharges" at all. The Court granted the petition for a writ of certiorari on whether the District could be held liable after Miccosukee for so-called discharges that actually involved movement of polluter waters within the same water body. Before the Supreme Court, parties on both sides (including NRDC), and the United States in its amicus brief, agreed that there couldn't be liability for water pollutant movements within the same waterbody And today the Supreme Court agreed, restating the basic conclusion in Miccosukee. Tue, 08 Jan 2013 16:00:28 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1BF6B21F-B185-5DE8-468CA81DF2806262 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1BF6B21F-B185-5DE8-468CA81DF2806262 A year ago this month, CPR published a white paper that laid out a two-phased action plan for federal agencies to take some critical steps toward protecting the public from Bisphenol-A (BPA). The report provided both short-term and long-term action items for the EPA, FDA, and OSHA that could establish stronger safeguards, risk assessment practices, and warning mechanisms for families and consumers concerning BPA and other endocrine-disrupting chemicals. We said an underlying requirement for both short-term and long-term action items is for federal agencies to acknowledge the unique low-dose effects and non-monotonic dose response curves (NMDRC) of endocrine-disrupting chemicals and adapt existing scientific protocols to reflect these unique risks. Shortly before the conclusion of 2012, EPA announced a promising new effort in turning these action items into a reality. The agency is forming a working group dedicated to investigating and analyzing low-dose effects and NMDRCs for endocrine disrupting chemicals, and intends to release a "state of the science" paper, which will undergo peer review and "help inform how the safety of chemicals are assessed." The working group will focus on three critical questions in conducting its work: Do NMDRCs capture adverse effects that are not captured using our current chemical testing strategies (i.e. false negatives), and are there adverse effects that we are missing? Do NMDRCs exist for chemicals, and if so under what conditions do they occur? Do NMDRCs provide key information that would alter EPA's current weight of evidence conclusions and risk assessment determinations, either qualitatively or quantitatively? Tue, 08 Jan 2013 09:19:37 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1A87991C-A66F-A791-5E5ABFA792A682A2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1A87991C-A66F-A791-5E5ABFA792A682A2 The Ganges River begins at the foot of the Gangotri Glacier in the Himalayas and culminates at the Sundarbans Delta, a massive sprawl of swamps, lakes, and scores of islands. (Find an earlier post on the Ganges here.) It's the largest river delta in the world - home to endangered Bengal tigers, miles of mangroves, and nearly 12 million people (4.5 million on the Indian side and 7.5 million on the Bangladeshi side). A student of the Mississippi River Delta, I had long wanted to visit the Sundarban Islands. So after giving a series of lectures in Kolkata, I accepted an invitation to visit some of the islands on a medical boat, operated by the Southern Health Improvement Samity, an organization in West Bengal that delivers health-care services to island villagers. The experience was one of the high points of my semester sabbatical, which has now drawn to a close. The people were lovely. I chatted with a group of young girls about their new school building, which doubles as a safe house in times of flood. I learned about off-the-grid power from a farmer who had recently installed solar panels on the thatch of his mud hut. A local activist taught me about a program that employs women to grow mangrove saplings and replant them on fragile shores. And the lush forests were idyllic (once you looked past the plastic netting designed to keep the tigers in). Fri, 04 Jan 2013 09:10:42 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0438BAB8-B2E5-8BA7-5690FF9F45E43C30 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0438BAB8-B2E5-8BA7-5690FF9F45E43C30 CPR's Rena Steinzor and Amy Sinden have an op-ed in this morning's Baltimore Sun urging President Obama to make aggressive use of Executive Orders leading to regulation action to protect health, safety and the environment. They write: Barack Obama's ambitions are clear. He came to office in 2009 on the strength of a far-reaching, progressive agenda that included resurrecting the economy, rebuilding the American middle class, ending one war, winning another, stopping the Bush-era tax giveaways to the rich, fixing the health care system, addressing global warming, ending "Don't ask, don't tell," and more. Four years on, despite the bitter partisan divide that defines politics in our age, he's made progress on most fronts, to his great credit. But if he is to make further advances on his agenda, odds are he'll need to do it without much help from Congress. Let's face it: If the fiscal cliff battle tells us anything, it's that the spanking congressional Republicans took from voters last month did little to diminish their appetite for confrontation and gridlock. As a result, great legislative achievements don't seem to be in the cards for either party any time soon. So what might the president accomplish on his own? Plenty. If, that is, he's willing to use every bit of executive power he can marshal, by directing the regulatory agencies of his administration to move with dispatch to regulate and enforce in a number of vital areas. The piece draws on their recent CPR Issue Alert, Protecting People & the Environment by the Stroke of a Presidential Pen, written with fellow Member Scholar Robert Glicksman, CPR Senior Policy Analyst Matthew Shudtz, and Policy Analysts James Goodwin and Michael Patoka. The op-ed and the Issue Alert map out a way for the President to secure a legacy on environmental, health and safety issues, and are well worth a read. Thu, 27 Dec 2012 09:06:43 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DCAF0D51-0FEA-61B0-82497C71F320B9A5 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DCAF0D51-0FEA-61B0-82497C71F320B9A5 Cross-posted from Legal Planet. Six months ago, the D.C. Circuit upheld EPA's finding that greenhouse gases endanger human health and welfare, triggering coverage under the Clean Air Act. On Thursday, the full court denied rehearing to the three-judge panel's decision. There were only two dissents, which obviously were hoping to set the stage for a cert. petition to the Supreme Court. The dissents provide a preview of the kinds of arguments that will be made to the Supreme Court. One key point is that neither dissent questioned the scientific basis for EPA's finding. It is clear that the climate skeptic positions advanced by the state of Texas have no traction even with very conservative judges. The strongest arguments raised by the dissents involve a technical statutory issue. The case involves provisions of the Clean Air Act that apply to "any air pollutant." The dissent argues that this means "any criterion air pollutant" (meaning the six pollutants that are most extensively regulated by the statute." I discussed this issue extensively in a post about the original decision, so I won't go into the details here, but I think EPA's position on this issue is sound. It's notable than only two of the conservatives on the D.C. Circuit were willing to endorse the attack on the EPA's interpretation. Fri, 21 Dec 2012 11:18:20 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BE416C13-A21C-4790-B83BFB263C5F5B09 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BE416C13-A21C-4790-B83BFB263C5F5B09 In October, I wrote about the city of Surat, the diamond-polishing capital of India, and its battle against climate change. Recently I had the chance to visit another municipality working on adaptation, a place known more for its postage stamp farms and wandering livestock than jewelry and textiles. It's called Gorakhpur, and is located in the flood-prone state of Uttar Pradesh, near the India-Nepal border. I first visited Gorakhpur nearly 25 years ago--when I was a long-haired backpacker and Gorakhpur was a muddy stop on the way to Kathmandu. Some things there haven't changed. The streets are still muddy. Tea stalls and tarpaulin tents still line the streets, illuminated by the blue flames of cook stoves. At my business hotel, electricity was as unreliable as ever, and the telephones still crackled and hissed. Each morning, I would greet a dozen or so cows grazing on a hillock of garbage outside the hotel gate. (The city still has no regular solid waste collection). But Gorakhpur has also changed in important ways. The city has over four hundred thousand people, with millions more in the surrounding district. There are malls, cineplexes, fast-food joints, and pizzerias! What began as a small urban core has spread erratically, encroaching upon lakes, marshes, and scores of farm villages - all held together by a hectic flow of traffic and a mighty, tea-stained dome of hydrocarbons. Tue, 18 Dec 2012 09:47:39 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AE7BC4A5-DA50-10A5-935639278F1E78E7 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AE7BC4A5-DA50-10A5-935639278F1E78E7 This post was written by Member Scholar Thomas O. McGarity and Senior Policy Analyst Matt Shudtz. The Mercatus Center has recently published a report on OSHA that simply rehashes the same old discredited arguments that industry apologists in academia and think tanks have been making for thirty years. Not surprisingly, they reach the conclusion that voluntary compliance programs and worker education efforts are better uses of OSHA's limited resources than rulemaking and enforcement. The report contains no original research, and (with one exception) it relies exclusively on studies finding little or no correlation between OSHA activity and reductions in worker injures. At the same time, the report ignores much of the evidence tending to show OSHA regulations and enforcement are effective. The simple (and frustrating) fact of the matter is that it is almost impossible to design a study using available occupational injury statistics to measure with much confidence the extent to which enforcement of OSHA standards is or is not associated with a reduction in workplace injuries or deaths. It is therefore not surprising that the studies reach mixed results. The Mercatus report ignored some reports showing a positive correlation and belittled a recent study showing a highly positive correlation. By law, the agency has reviewed a number of standards issued over the last forty years. The cotton dust standard virtually eliminated byssinosis, at a cost to industry far less than expected. The standards controlling exposure to ethylene oxide resulted in reduced risk to employees and lower-cost sterilizers available to employers, even as industrial production of the chemical increased. OSHA's inspections have also been proven effective, with studies (among others, here, here, and here) indicating that injuries and standards violations decrease following the inspections - by as much as 50 percent. Mon, 17 Dec 2012 09:28:26 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A943E050-D87D-8E43-2C62040ACF3AB416 http://www.progressivereform.org/CPRBlog.cfm?idBlog=A943E050-D87D-8E43-2C62040ACF3AB416 Cross-posted from ThinkProgress. "Election over, administration unleashes new rules," trumpeted an Associated Press story this week. What are these newly unleashed rules? Perhaps the big food safety rules that have been stalled for more than a year have gone through? Rules limiting greenhouse gas emissions from new and existing power plants? Long-awaited rules to protect coal miners' safety? Not quite. In fact, the AP strained to come up with just tiny examples: "[T]he Environmental Protection Agency has proposed rules to update water quality guidelines for beaches and other recreational waters and deal with runoff from logging roads." The recreational waters standard was a welcome development, but not particularly consequential or abrupt. EPA was required by law to issue the recreational water standards by 2005; it has issued them now only after being ordered by a court to do so. And as the agency explained in its press release, "The criteria released today do not impose any new requirements; instead, they are a tool that states can choose to use in setting their own standards." As for the rule earlier this month on runoff from logging roads, it's not what you might imagine: it says that EPA will not be regulating pollution from logging roads. That regulation was issued in an incredibly short period of time; it took only three months from the agency proposing a rule to issuing its final "rule." If only the Administration were so aggressive with protective rules. Fri, 14 Dec 2012 13:24:25 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9AA8CB95-94F0-A1E1-C3406260882FA5F6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9AA8CB95-94F0-A1E1-C3406260882FA5F6 Cross-posted from Legal Planet. NOAA administrator Jane Lubchenco has announced that she will leave her post at the end of February. Her letter to NOAA employees, reprinted in the Washington Post, cites the difficulty of maintaining a bi-coastal family life. Dr. Lubchenco, a distinguished marine biologist, has put in four years at the helm of NOAA, as much time as reasonably could be expected. She was one of President Obama's earliest nominees, named before his inauguration as part of a "dream team" of distinguished research scientists he brought into high-level government service in partial fulfillment of his inaugural promise to restore science to its rightful place. While that promise remains, in my view, unfulfilled, it hasn't been for lack of trying on Lubchenco's part. Of NOAA's accomplishments during her tenure, the one I attribute most directly to her influence is adoption of a strong scientific integrity policy. The White House mandated that federal agencies develop scientific integrity policies, but provided precious little guidance or leadership. Most agencies simply imported research misconduct policies, essentially putting the entire onus of ensuring scientific integrity in the regulatory arena on career scientific staff. As I've explained in some detail in this article, that approach misses the point. The so-called scientific integrity problem has a lot more to do with the relationship between political appointees and the career scientists they oversee than with deliberate falsification by those scientists. If you don't believe that, take a quick look at the Department of Interior Inspector General's reports on the Julie MacDonald affair, here and here. NOAA's policy, alone among those I've looked at, takes on that relationship. It includes a "Code of Ethics for Science Supervision and Management" which, among other things, expressly forbids intimidating employees into altering or censoring scientific findings. You wouldn't think that was necessary, but look again at the MacDonald report. Then ask yourself why the Department of Interior hasn't put even that minimal limit on managers in its scientific integrity policy. Fri, 14 Dec 2012 10:43:07 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9A152498-AC85-EF69-C43B2375110804FD http://www.progressivereform.org/CPRBlog.cfm?idBlog=9A152498-AC85-EF69-C43B2375110804FD Cross-posted from Legal Planet. Mayan apocalypse: panic spreads as December 21 nears Fears that the end of the world is nigh have spread across the world with only days until the end of the Mayan calendar, with doomsday-mongers predicting a cataclysmic end to the history of Earth. That's from a British newspaper, the Telegraph, but you only have to Google "Mayan Calendar" to find lots of similar items. There seems to be no basis at all for the idea that the Mayans thought the world would end at this point, let alone that it actually will. But it's certainly gotten people excited. Ironically, people seem to be much less excited about climate change. That's ironic for two reasons. First, it's at least conceivable that the climate will hit a tipping point with catastrophic (though probably not apocalyptic) consequences. And second, what destroyed the Mayan civilization wasn't some supernatural event tied to their calendar. It was probably climate change, according to archaeologists. As the NY Times reports, The early classic Maya period - about A.D. 450 to 660 - "was remarkably wet," said an author of the study, Douglas Kennett, a geo-archaeologist at Penn State. "There was a proliferation of population, an increase in agriculture and a rise in divine kings that became prominent leaders." But then things dried up. The researchers compared the climate record with an existing "war index" - a log of hostile events based on how often certain keywords occurred in Maya inscriptions on stone monuments - and found a strong correlation between drought and warfare between cities. Thu, 13 Dec 2012 09:17:11 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=94A00A72-CAE2-0399-514D3E21AA060E85 http://www.progressivereform.org/CPRBlog.cfm?idBlog=94A00A72-CAE2-0399-514D3E21AA060E85 After the last of the applause lines has been delivered, and while the crowd that gathered for his historic second inauguration is still filing out of town, President Obama will once again sit at his desk in the Oval Office and begin the tough policy work that will define his second term in office and shape the legacy he will leave behind. Among the many challenges he'll face over the next four years will be an urgent agenda of addressing critical threats to public health, safety, and the environment that the Administration let languish during the first term. But good luck to him if he decides to attack the problems with legislation. The election made the numbers in both chambers of Congress somewhat more favorable to the President's cause. But it'd take an earth-shattering event or at least another election to get protective legislation out of the House of Representatives, which vacillates between being sullen and defiant and will undoubtedly return to its anti-regulatory drum-beating as soon as the fiscal "crisis" is over. So what's a President to do? Use every bit of executive power he can marshal, in this case, by directing the regulatory agencies to move with dispatch to regulate and enforce in a number of vital areas. In Protecting People and the Environment by the Stroke of a Presidential Pen: Seven New Executive Orders for President Obama's Second Term, released today, my colleagues and I at the Center for Progressive Reform explain how the President can take the first vital step by making full use of his authority to manage executive agencies - including the Environmental Protection Agency, the Food and Drug Administration and the Occupational Safety and Health Administration - by issuing a series of Executive Orders. The Orders recommended in the CPR Issue Alert would address several pressing health, safety, and environmental challenges: Climate change mitigation and adaptation; Dangerous food, drug, and consumer product imports; Threats to the health and safety of children and future generations; and Hazardous working conditions for "contingent workers" (i.e., a growing portion of the U.S. labor force that encompasses workers who are not employed on any kind of long-term contractual basis). Mon, 10 Dec 2012 09:12:59 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8529294B-C25E-FC12-9CEA904AA2677865 http://www.progressivereform.org/CPRBlog.cfm?idBlog=8529294B-C25E-FC12-9CEA904AA2677865 Cross-posted from The Pump Handle. The good news is that in 2011 there were 53 fewer reported refinery accidents in Louisiana than there were in 2010. The bad news is that the 301 refinery accidents reported to the state in 2011 released nearly 50,000 pounds more air pollutants and nearly 1 million gallons more contaminants to soil and water than did the 354 accidents reported in 2010 - this according to a new report released Monday by the Louisiana Bucket Brigade and United Steelworkers. "Our aim is to collaborate with the refineries to solve the problem. Unfortunately that day hasn't come yet," said Louisiana Bucket Brigade founding director Anne Rolfes on a call with reporters. "Refinery managers continue to act as if they don't have an accident problem. Until they face the facts, the oil industry, our economy, our environment and our health will suffer," said Ms Rolfes. The report's release comes less than three weeks after a fire and explosion on an oil platform off the Louisiana coast killed three workers and injured 9, three seriously - and while a Shell Chemical in Norco, Louisiana continued to flare as it had for more than 30 hours. The report, which is based on refineries' reporting of accidents to the Louisiana Department of Environmental Quality (LDEQ), found that in 2011 the state's 17 refineries reported to the state 301 accidents that released more than 1 million pounds of air contaminants and more than 1.3 million gallons of pollutants to soil and water. Among these emissions are sulfur dioxide, benzene, hydrogen sulfide, 1,3-butadiene, and miscellaneous other volatile organic compounds. These substances are all associated with potentially serious adverse health effects, including cardiovascular and respiratory diseases; neurological, immune and respiratory system impacts; and cancer. According to US Census figures and the report's analysis, more than 200,000 people in Louisiana live within two miles of a refinery. This industry is "clearly externalizing its costs on Louisiana," said Ms. Rolfes. Fri, 07 Dec 2012 09:03:15 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=75AD2FB2-0DDA-747F-03B9EC5293990153 http://www.progressivereform.org/CPRBlog.cfm?idBlog=75AD2FB2-0DDA-747F-03B9EC5293990153 The saga of the missing FDA food safety regulations continues with a new government filing in a lawsuit challenging FDA's failure to promulgate regulations implementing three critical programs that Congress established in the Food Safety Modernization Act of 2011. As I noted in a previous posting, the three sets of regulations are currently bottled up in the White House Office of Information and Regulatory Affairs (OIRA), where they have gathered dust for a year. Well before the statutory deadlines, FDA sent OIRA proposed regulations requiring most food processors and manufacturers to come up with hazard analysis at critical control point (HACCP) programs, requiring growers to comply with "science-based" minimum sanitation standards, and for importers to verify that their products were produced under conditions that complied with FDA food safety requirements. But the deadlines came and went while OIRA sat on the regulations to avoid criticism from Republicans during the 2012 election season. Last summer, the Center for Food Safety and the Center for Environmental Health sued FDA (and the White House) for failing to meet the deadlines and asked the court, the U.S. District Court for the Northern District of California, to order FDA to promulgate the rules by a date certain. Wed, 05 Dec 2012 14:07:54 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6C7708A8-B65F-8149-91C296B3290668FF http://www.progressivereform.org/CPRBlog.cfm?idBlog=6C7708A8-B65F-8149-91C296B3290668FF The World Bank has started a process that appears likely to weaken its environmental and social safeguard policies. Although the Bank has repeatedly stated there will be no "dilution" of the policies, the Bank's scoping paper released in October and its ongoing consultations clearly reveal a desire to replace clear standards with discretion and deference to its developing country borrowers. The Bank, whose environmental and social safeguard policies have long provided important minimum standards for protecting communities affected by international development projects, now runs the risk of sacrificing its leadership role, disempowering affected communities, and forfeiting development effectiveness by once again financing projects that are human rights and environmental disasters. Of course the Bank doesn't say in so many words that it wants to deregulate, but the goals of the policy review is now clear from their scoping paper. It speaks of the desire to take a less "prescriptive" approach and one that will be more "supportive" of its developing country borrowers. Nothing in the paper speaks to protecting minimum rights or interests of affected people. The Bank anticipates that one of the risks is they will be "perceived to weaken their standards," implicitly dismissing the likelihood they will actually weaken their standards and rejecting those who want clear standards as just fighting over words. The Bank fails to recognize that a change in words from "must" to "may" disempowers communities affected by their projects when it sacrifices rights as requirements to the discretion of the Bank staff. The Bank's strategy is to follow their sister organization, the International Finance Corporation (IFC), in replacing clear environmental standards with a more "integrated approach" that relies on environmental management systems. The IFC's Environmental and Social Performance Standards apply to private sector lending. The Bank views the IFC standards as a success, in part because they have been widely followed by commercial banks conducting private finance in developing countries. Although accepted by industry, there is no evidence the IFC's discretion-laden approach has contributed to development effectiveness or protected vulnerable communities. The World Bank is also mistaken if it thinks the same discretion-laden approach will work better in the public sector. Tue, 04 Dec 2012 09:05:29 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=663C0BAB-F725-BD54-A43EB950DEC26476 http://www.progressivereform.org/CPRBlog.cfm?idBlog=663C0BAB-F725-BD54-A43EB950DEC26476 Property lawyers in the United States love the Public Trust Doctrine (PTD). There's such a rich history. The doctrine, which holds that important resources must be held "in trust" for public use, originated in Roman law. Centuries later it was forced on King John through the Magna Carta. During America's industrial revolution, our Supreme Court invoked the doctrine to defend Chicago's shoreline from hungry rail barons (the case is called Illinois Central Railroad), and we've had it ever since. The PTD fascinates us at CPR too: we see it as a potentially powerful way to protect water resources in the United States. (Visit our Public Trust Doctrine page.) But some of the most interesting and expansive uses of the PTD are taking place on the other side of the world - in India. To learn more about those developments, I turned to Shibani Ghosh, a Research Associate at the Centre for Policy Research, where I am visiting for the semester. Ms. Ghosh is also a public interest lawyer and a visiting member of the faculty at TERI University in New Delhi. I asked Ms. Ghosh to help me understand how the PTD is used in Indian law. Our conversation - which touched on public participation, climate adaptation, and India's 2G network - is set forth below. RV: How did the PTD makes its way to India? SG: In the 1980s and '90s, the Supreme Court of India played a very active role in promoting rights-based litigation. Several landmark cases which have contributed to the growth of Indian environmental jurisprudence were decided during that time. One such case was MC Mehta v Kamal Nath. The issue before the Court in this case was the legality of the government's decision to regularize encroachment of reserved forest land by a private hotel in the state of Himachal Pradesh. The hotel had also tried to change the course of the river Beas on the banks of which the hotel was situated, so as to prevent instances of flooding and loss of property. Before the Supreme Court, the matter was argued against the hotel by MC Mehta, India's leading environmental lawyer and the judgment was written by Justice Kuldip Singh, arguably the country's foremost "green judge." Mon, 03 Dec 2012 09:29:58 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=612C3B8C-AB0E-C2F9-F3EE8EAC3404DAE9 http://www.progressivereform.org/CPRBlog.cfm?idBlog=612C3B8C-AB0E-C2F9-F3EE8EAC3404DAE9 Cross-posted from Legal Planet. This coming Monday, Dec. 3, the U.S. Supreme Court will hear oral argument in the logging roads case. The case involves two consolidated petitions, Decker v. Northwest Environmental Defense Center and Georgia Pacific v. Northwest Environmental Defense Center , both challenging the same decision of the Ninth Circuit, Northwest Environmental Defense Center v. Brown, 640 F.3d 1063 (9th Cir. 2011). (Decker is brought on behalf of the state of Oregon, which owns the land and roads in question, Georgia Pacific on behalf of timber operators who hold logging rights on the land.) The narrow issue is whether the Ninth Circuit was right to hold that NPDES permits were required for stormwater runoff from Oregon logging roads channeled through ditches and conduits to navigable waters. The broader issues are the extent to which EPA has the discretion to narrow the scope of "point sources" subject to federal regulation, and the availability of citizen suits to enforce the CWA. I think it's likely the Ninth Circuit decision will be reversed, but I expect a narrow decision. With the recusal of Justice Breyer (whose brother sat by designation on the Ninth Circuit panel), the best environmental interests can reasonably hope for is a 4-4 deadlock if they can bring Justice Kennedy around. I don't think that will happen. (To the extent that Justice Kennedy deserves his reputation for sensitivity to the views of the states, note that 31 states have signed on to an amicus brief in support of petitioners and of course Oregon is a petitioner.) Petitioners make three arguments: first, that runoff from ditches and culverts associated with logging roads is not point source pollution; second, that even if it is not all point source pollution requires an NPDES permit; and third, that the lower courts did not have jurisdiction to hear this suit. My guess is that they will win on the second argument, lose on the third, and that the court may duck the first. If I'm right, the Court's decision won't radically undermine the CWA, but it will leave EPA with a great deal of discretion to decide what to do about logging road pollution. Whatever the outcome in the Supreme Court, it's crucial that EPA take its mission of restoring and maintaining the integrity of the nation's waters seriously, and recognize the importance of dealing with logging roads and other "unconventional" pollution sources to achieving that mission. Fri, 30 Nov 2012 09:10:54 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4FBE60AF-0087-57FE-F7EE5386D6184607 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4FBE60AF-0087-57FE-F7EE5386D6184607 Cross-posted from Legal Planet. The Washington Post reported this week that scientists think they can resurrect the Pinta Island subspecies of Galapagos tortoise whose last remaining member, "Lonesome George," died this summer. Scientists at Ecuador's Galapagos National Park say they have found enough Pinta Island genetic material in tortoise on another nearby island that an intensive breeding program over 100 to 150 years could regenerate the pure Pinta Island subspecies. It's all very cool and sci-fi to think we might be able to regenerate extinct species (does anyone besides me remember Jurassic Park?). But from a policy perspective, the question is not can we do it, but should we? It's the kind of question we'll have to face more and more, with climate change radically changing the world's habitats. What exactly do we want to conserve, and what level of resources are we willing to put into conservation or into conserving one entity possibly at the expense of others further down the list? We can't answer that question without thinking a lot harder about why we think conservation is desirable. Are we trying to save "nature" in some sense, and if so is a deliberately human-bred species natural in the sense that matters or not? Or in a slightly different context, should we be moving pikas or other species from areas that are or soon will be no longer suitable habitat to areas outside their historic range that might become suitable? I don't pretend to have the answers to those questions. In fact, I don't think any one person should be expected to answer them, or should suppose that they alone have the definitive answer. As Alejandro Camacho, Jason McLachlan, Ben Minteer and I wrote a couple of years ago, we need a multidisciplinary national or global conversation on conservation goals. Whether Lonesome George should be given virtual children is as good a place to start that conversation as any. Thu, 29 Nov 2012 15:50:36 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4DEF364C-F277-1574-2FCB824547A73B75 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4DEF364C-F277-1574-2FCB824547A73B75 For a potentially earth-shattering move against one of the most notorious corporate environmental scofflaws in history, the Environmental Protection Agency (EPA) sure hid its light under a bushel this morning. The agency's scant three-paragraph press release announced simply: "BP Temporarily Suspended from New Contracts with the Federal Government," adding that "EPA is taking this action due to BP's lack of business integrity as demonstrated by the company's conduct with regard to the Deepwater Horizon blowout, oil spill and response." As the headline suggests, the temporary suspension applies to new, but not existing, contracts with the government. Don't get me wrong, EPA's move was in its own way a profile in courage for an agency that too often walks around with a target on its back, taking unwarranted hits from both its known foes - House Republicans - and from people who should be on its side - White House staff, and occasionally from other agencies and departments - like the Pentagon, or the Small Business Administration's Office of Advocacy. The question is whether the little release was an exercise in mere bravado or whether it will deliver real results. As reporters hustled to interpret the cryptic release, the Interior Department confirmed that BP would be barred from winning any new federal oil leases. Unfortunately, BP just finished winning a slew of new leases in June, making it the largest leaseholder in the Gulf. The new leases are located in the same region of the Gulf as the Macondo well, the one that exploded in April 2010, killing 11 destroying the $350 million Deepwater Horizon drilling rig, fouling the Gulf of Mexico and hobbling the regional economy of the Gulf Coast. As the rig's name suggests, oil lies deep below the surface out there, representing plenty of hazards to be navigated by a company that, according to EPA's careful review of ample evidence, lacks integrity. Wed, 28 Nov 2012 18:45:26 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4968C875-AD05-0754-AEA6704B44F20ED3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4968C875-AD05-0754-AEA6704B44F20ED3 Action on climate change should be one of the first things President Obama takes on in his second term. There are countless steps the President might take, but perhaps one of the easiest things for him to do on that front is to instruct the Office of Management and Budget (OMB) to release eight Department of Energy (DOE) rules regarding energy efficiency currently under OMB's review. Regular readers will know that OMB is a kind of regulatory purgatory where rules can be held up seemingly indefinitely or sent back to the agencies responsible for them to be reconsidered in light of OMB's widely questioned cost benefit analysis. As Earthjustice and others have noted, President Obama could make substantial progress on climate change by telling his own OMB that it needs to move on the rules. Some of the DOE rules have been at OMB for well over a year, and the benefits of energy efficiency are being foregone while they are held up. DOE's Fossil Fuel Energy Consumption Reduction for New Construction and Major Renovations of Federal Buildings rule, for instance, has reached the final rule stage but has been stuck at OMB since August of 2011. Beginning one year after it is finalized, the rule would require that new federal buildings and those that undergo major renovations adhere to new limits on their fossil fuel consumption. Five years after that, stricter limits would go into effect for further renovations or constructions. So, the sooner OMB releases the rule the sooner the rule will take effect and we can start realizing its significant benefits. DOE estimated the rule will bring significant emissions reductions: in the first year after the rule takes effect it will prevent 52,700 metric tons of carbon dioxide, 111 metric tons of methane, 53 metric tons of nitrogen, and 151 metric tons of sulfur dioxide from entering the atmosphere. These reductions will increase rapidly as other buildings are renovated and the standards are tightened at five-year intervals. Wed, 28 Nov 2012 09:10:19 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=475A6F05-EFBD-54D8-C5BA56C64AF22660 http://www.progressivereform.org/CPRBlog.cfm?idBlog=475A6F05-EFBD-54D8-C5BA56C64AF22660 CPR Member Scholar Noah Sachs published an op-ed in the Richmond Times-Dispatch this morning critiquing the Independent Agency Regulatory Analysis Act. That bill would allow the White House to review rules proposed by independent federal agencies. Writes Sachs: Imagine if important government agencies, purposely designed by Congress to be insulated from political pressure, suddenly had to bend to White House wishes. Campaign contributors might then try to influence Nuclear Regulatory Commission decisions on safety standards for aging nuclear plants. Big Wall Street donors might have a backdoor route to kill Securities and Exchange Commission regulations on stock fraud. ... While the new bill aims for transparency, we're likely to get a black hole of decision-making instead. Far from improving government, the bill will make important government decisions subject to endless internal review and closed-door meetings with industry lobbyists. Sachs argues that Virginia Senator Mark Warner, who has supported independent agencies in the past (Senator Warner voted in favor of the Dodd-Frank bill, which created the Consumer Financial Protection Bureau), should not be co-sponsoring a bill that will effectively undermine them. Mon, 26 Nov 2012 17:15:25 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3EC9D025-02BD-C9F4-9861F37CFE3DF819 http://www.progressivereform.org/CPRBlog.cfm?idBlog=3EC9D025-02BD-C9F4-9861F37CFE3DF819 One of the crowning legislative achievements of the Obama Administration's first term was the enactment of the Food Safety Modernization Act. Like any safety statute, however, the new law will have no practical bite until the implementing rules are issued. In this case, that's until the Food and Drug Administration (FDA) promulgates regulations fleshing out the obligations of growers, producers and importers of food. Unfortunately, after almost two years, the regulations for the three most critical programs enacted by the new law have been written, but have not yet been promulgated. On Thanksgiving Day, one set of implementing regulations will have been bottled up at the White House's Office of Information and Regulatory Affairs (OIRA) for exactly one year. Two other critical sets of regulations will pass the one-year milestone between Thanksgiving and December 9. Signed by President Obama in January 2011, the new law was enacted in response to a series of crises throughout the Bush Administration involving, among other things, peanuts contaminated with Salmonella during processing at a Georgia facility, fresh vegetables contaminated with an especially virulent form of E. coli bacteria, and Salmonella-contaminated imported jalapeno peppers. The FSMA tells the Food and Drug Administration (FDA) to write regulations requiring most food processors and manufacturers to come up with hazard analysis at critical control point (HACCP) programs and to write "science-based" minimum sanitation standards for growers to follow during the production and harvesting of fruits and vegetables. The new law also told FDA to write regulations requiring importers to verify that their products were produced under conditions that complied with FDA food safety requirements. Wed, 21 Nov 2012 12:09:03 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2000A22A-0721-5B46-C5B2906C2C149106 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2000A22A-0721-5B46-C5B2906C2C149106 Cross-posted from Legal Planet. As already noted by Rick and Megan, last week BP pleaded guilty to 14 criminal counts arising from the 2010 Deepwater Horizon blowout in the Gulf of Mexico. Megan provided a good basic overview of the terms of the agreement. Here is the plea agreement itself. The amount of money BP has agreed to pay, in criminal fines and additional payments, has been the focus of most of the news coverage so far. The terms of BP's probation have gotten less attention, but are well worth exploring. Of course the amount of the fines and other payments matters. Never having had the experience of negotiating a plea agreement like this, I'm reluctant to speculate on whether the government could have gotten more out of BP. It's too early to evaluate whether the punishment fits the offense, since civil sanctions and natural resource damages remain to be determined. The plea agreement specifies that the payments it requires do not affect its liability for civil claims or natural resource damages. I was struck by the scope of the fines for the environmental offenses relative to the others. BP agreed to pay the maximum possible fine for each of the 11 manslaughter counts and the obstruction of Congress count. Together, the agreed fine for those counts totals $6 million, a tiny fraction of the total criminal fines. BP will pay another $100 million for violating the Migratory Bird Treaty Act, and a whopping (at least relatively speaking) $1.15 billion for violating the Clean Water Act. Tue, 20 Nov 2012 09:45:59 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1E47AAB5-CECA-F1C9-DFB3C63E5BD1A0D2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=1E47AAB5-CECA-F1C9-DFB3C63E5BD1A0D2 For those who have not been following the news lately, a recent article reported the following: A large tropical storm attributed to "unseasonable rainfall" slammed into the coast and moved inland, leaving many dead or missing, tens of thousands of residents evacuated or homeless, and government disaster response agencies struggling to provide food, shelter, and other critical services. According to the article, "[d]isaster response teams helped to move people to higher ground in rubber boats and nearly 100 shelters were opened ... to accommodate people fleeing the flood zone." Trains and other transit systems were closed; some communities were completely cut off from help; and to make matters worse, more intense rain was expected later in the same week. News reports about Hurricane Sandy? Actually, no. This news came from an article by Agence France-Presse about Cyclone Nilam, which struck the Indian states of Andhra Pradesh and Tamil Nadu just a week after Sandy unleashed similar catastrophe on the eastern United States. Nor was this an isolated incident in India. In September, the Agence France-Presse article continued, "two million people were forced to flee their homes in the north-eastern state of Assam after floods triggered by heavy monsoon rains." The point, of course, is not to minimize the horrible loss of lives, damage to homes and other property, and suffering that the residents of the northeastern U.S. have endured due to Hurricane Sandy. Relief efforts should continue if not expand. Public disaster relief funding should be expedited. Private parties should donate to the Red Cross and other independent sources of relief. Fri, 16 Nov 2012 09:20:43 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0997A6E7-E4A3-09EA-FC4008D5D889063D http://www.progressivereform.org/CPRBlog.cfm?idBlog=0997A6E7-E4A3-09EA-FC4008D5D889063D In January, USDA issued a proposed rule that would allow poultry slaughter facilities to increase the speed of their slaughter and evisceration lines as part of an effort to "modernize" the slaughtering process. Today, I attended a meeting of the National Advisory Committee on Occupational Safety and Health (NACOSH) and asked for the committee's help in stopping the rule, given its threats to workers' health and safety. The gist of the rule is that it would remove most USDA inspectors from the slaughter lines and shift their inspection responsibilities to company employees. Because these changes would require costly alterations to the lines and potentially increase companies' food safety liabilities, USDA had to sweeten the pot to entice companies to take advantage of the new system. So, USDA proposed allowing companies to increase line speeds from an already astounding 90 birds per minute to a dizzying 175 birds per minute, which is predicted to deliver companies added profits of a few pennies per bird. Of course, in an industry that processes billions of chickens per year, the pennies really add up. Others have covered the troubling food safety implications of forcing USDA's remaining inspectors to "inspect" (if you can call it that) 175 birds per minute. Thu, 15 Nov 2012 18:18:05 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=065D383F-AF12-337D-3D2AFF1D7FE56119 http://www.progressivereform.org/CPRBlog.cfm?idBlog=065D383F-AF12-337D-3D2AFF1D7FE56119 This post is based on an article I wrote with Anne Havemann entitled "Too Big to Obey: Why BP Should Be Debarred," published in the William & Mary Environmental Law & Policy Review. Attorney General Eric Holder and his lead prosecutor, Lanny Breuer, are deservedly running a victory lap in the immediate aftermath of their criminal settlement with BP. The amount of money paid to settle the charges, $4.5 billion - is considerably larger than anything paid by past bad actors, although it represents just a few months of profit for the company. In addition, the two top supervisors on duty at the rig when it exploded will be prosecuted for manslaughter, sending the message that line managers put their futures on the line when they worry more about sparing costs for the company than the safety of their workers. But even these tough remedies fall far short of the "nuclear option" that should be invoked in this case: the permanent debarment of BP from ever doing business with the U.S. government. Despite a shocking history of chronic law violations stretching a couple decades in this country - including an explosion at its Texas City refinery in 2005 that killed 15 workers--BP remains the Pentagon's largest supplier of jet and vehicle fuel, with government contracts valued at more than $2 billion. In theory, at least, the United States only does business with "responsible" companies and, as I'll explain further in a moment, BP is the corporate embodiment of irresponsibility, even if we ignore the catastrophe that happened in the Gulf. Yet any suggestion that the company should be debarred by the Department of Defense (DOD)--the government's biggest spender--is summarily dismissed by observers who seem convinced that debarring BP would leave the Pentagon with nobody to sell it fuel. Some statutes, including the Clean Air and Clean Water Acts, provide for immediate suspension for government contractors found guilty of violating their provisions. Unfortunately, however, the suspension is only applicable to the facility where the violation took place. The drilling rig that exploded is obviously no longer in existence. Thu, 15 Nov 2012 17:04:03 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0619824F-07FA-9E6B-44CA4D5D66B6651C http://www.progressivereform.org/CPRBlog.cfm?idBlog=0619824F-07FA-9E6B-44CA4D5D66B6651C Judging from President Obama's first term, the job of White House "regulatory czar" could prove of out-sized importance these next four years, with the head of an office few know exists ending up with the power to trump the authority of Cabinet members throughout the government. Cass Sunstein, the former occupant of the position, was perhaps the most influential overseer of the regulatory process ever, and it's not hard to imagine that his replacement will be equally powerful. But I'd propose that the next Administrator of the Office of Information and Regulatory Affairs (OIRA) have a very different job description. Sunstein made himself a strong ally of business, doing his best to put the President in a position where he could withstand attacks by his Republican opponent for being tuned out to the needs of the "job creators." This strategy did not work particularly well. President Obama was subject to withering attacks from big business and its political allies, and won reelection in the end by explaining himself as a populist concerned about the middle class. For this reason, and because the recent crisis over compounding pharmacies reminds us how badly regulatory agencies need to be strengthened, I'd urge the President to appoint a czar who will work to make sure that regulation and its enforcement are as effective as they are efficient from an economic perspective. I hope, in other words, that the President listens to his own campaign rhetoric and picks someone who can lead OIRA to develop a reoriented regulatory mission, one based on a positive vision for protecting the public. For three decades, OIRA Administrators have described their task as one of number-crunching and economics, making it sound as if they're just adding up regulations' projected costs and benefits and seeing which side of the equation wins because it is objectively bigger. But their unwritten, self-defined mission is quite different. They have seen their task as standing guard on federal agencies to make sure they don't upset industries too much, serving as a court of last resort for big business, and sparing the President from political damages. This role has not served anyone particularly well - except for industry. But there's no law that says this is how OIRA should function; it's a habit that has grown up over the years. President Obama's next OIRA Administrator needs to see outside that shortsighted lens. In his 2008 acceptance speech at the Democratic convention, President Obama said that government should "protect us from harm and provide every child a decent education; keep our water clean and our toys safe." That's the mission that the next OIRA Administration needs to make his or her own. Wed, 14 Nov 2012 09:30:27 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FF53D8D0-0799-9756-BA27840F229955A3 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FF53D8D0-0799-9756-BA27840F229955A3 Last weekend my son took part in a set of Boy Scout activities with his local Delhi scout troop. On the grounds of the former residence of the U.S. ambassador, the boys prepared a kabob lunch, practiced fire making, and even built a Medieval-style trebuchet. But all I could think about were the little striped mosquitoes that seemed to follow the kids everywhere - Asian Tiger mosquitoes, to be exact, the kind that carry dengue fever. In New Delhi, dengue (DEN-gay) has reached epidemic proportions. The scouts, I'm happy to say, completed their tour without infection, thanks to lots of lotion, spray, and smoky coils. But not everyone has been so lucky. I know at least five people who have been confined to bed for two weeks of fever, headaches, and joint pain. (My medical traveler's guide says it feels as if "knitting needles have been driven into every joint of [your] body.") The New York Times reported last week that Delhi hospitals "are overrun and feverish patients are sharing beds and languishing in hallways." The illness, which in extreme forms can require blood transfusions and even kill, is breaking out all over the country. Official reports say that this year 30,002 people in Indian have fallen ill with dengue through October. But experts believe the real number is around 37 million. Tue, 13 Nov 2012 09:53:55 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FA42FAC8-C723-054C-3619BB224D754AE6 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FA42FAC8-C723-054C-3619BB224D754AE6 The current debate surrounding Washington State's sediment cleanup and water quality standards provides another example of regulated industry calling for "sound science" in environmental regulation, yet working to undermine it. Industry has worked to delay updates to water quality standards based on the most recent scientific studies, despite the fact that the current standards are based on decades-old data and don't adequately protect human health. Most recently, industry has sought to weaken any forthcoming standards by misrepresenting scientific studies of contamination in Puget Sound and other marine waters and its impact on salmon. When agencies set standards limiting toxic pollution in our waters, they aim to protect humans exposed to these toxics by eating fish. Fish consumption is the primary route by which people are exposed to a host of toxic contaminants, including PCBs, dioxins, and mercury. Washington's current water quality standards enlist a "fish consumption rate" (FCR) based on surveys of people's fish consumption practices back in 1973-74. Although more recent survey data have existed for some time, the state's Department of Ecology has declined to update its standards, even though its FCR of 6.5 grams/day - just one fish meal per month - grossly understates contemporary consumption rates for Washingtonians, including members of the fishing tribes, the Asian and Pacific Islander community, and others. An increase in the FCR would mean more protective environmental standards. Industry, for its part, has weighed in with calls to retain the current FCR - hardly an embrace of the state of the science. In recent public comments, industry has taken the tack of gutting the FCR. They have argued that people's intake of salmon ought to be excluded from the FCR, on the theory that salmon, which are anadromous (i.e., they spend a portion of their lifecycles in freshwater and saltwater environments), obtain their contaminant body burden outside of waters of regulatory concern. If salmon are getting their contaminants elsewhere, this argument goes, Washington ought not seek pollution prevention or cleanup from industries within its jurisdiction. Because salmon comprise a considerable portion of Washingtonians' fish intake, to exclude salmon from the FCR would be to decrease significantly the protectiveness of the environmental standards. Thu, 08 Nov 2012 09:35:55 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E072AEC3-A728-A0BD-32965A41D8C66EBB http://www.progressivereform.org/CPRBlog.cfm?idBlog=E072AEC3-A728-A0BD-32965A41D8C66EBB President Obama's reelection holds the possibility of great progress for public health, safety, and the environment - if, and only if, he recognizes the importance of these issues and stops trying to placate his most implacable opponents. The weeks leading up to the election brought powerful reminders of two of the challenges at hand: rising sea levels and more severe storms that scientists say we should expect as a result of unchecked climate change, and a meningitis outbreak that sickened hundreds, thanks to an obscure compounding pharmacy that escaped regulators' reach. And let's not forget that we are recovering from an economic downturn in which under-regulation of giant financial institutions played no small part. This is the context, the starting point. Taking a progressive stance on health, safety, and environmental threats has never been easy politically because the industries most affected by these protections have powerful allies in Washington, a small army of lobbyists, and plenty of money to contribute to politicians who support their opposition to regulation. So if the President chooses to take the lead on air and water pollution, food and drug safety, and dangerous conditions in the workplace, for example, he will face extraordinary pressure to do the wrong thing. And, sadly, he did not cover himself with glory during his first term in this area. Particularly as the campaign drew closer, the President tried to burnish his business-friendly credentials at the expense of needed protections. Now he has four more years to leave a legacy of leadership on these vital, life-and-death issues. The stark choices are perhaps best exemplified by climate change. One path is tragically easy, the other extremely hard. The easy path is to only poke at the edges of greenhouse gas emissions reduction. The hard path is to take aggressive action, using the full powers of the Clean Air Act, to put the country on the path to dramatically reduced greenhouse gas emissions. In not so many years, this choice will be looked back on as one of the key measures of the President's legacy. Without any question, history will condemn inaction in no uncertain terms. But a strong legacy will not depend just on climate. If the President does not act to make government protections stronger and more effective, we will face more tragedies, from fatal foodborne illness to refinery explosions to oil spills that kill people and cost billions. Wed, 07 Nov 2012 09:36:47 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DB4D27E4-C00A-DCE5-C796343C63138447 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DB4D27E4-C00A-DCE5-C796343C63138447 Internal EPA emails obtained by CPR though a FOIA request reveals that representatives from one or more of the EPA's peer agencies second-guessed a critical scientific finding undergirding the EPA's then-pending draft final rule to tighten the ozone standard, claiming that ozone is not associated with mortality impacts. The EPA's final proposal rightly disregarded the unsound comments and included information on how reducing ozone pollution saves lives. The rule, estimated to save thousands of lives, was later blocked by the White House. The email provides a rare glimpse at how peer agencies abuse the interagency commenting process by attacking other agencies' rules - often on matters on which they have comparatively little expertise. In the August 3, 2011, email, sent while the draft final rule was still undergoing review at the White House Office of Information and Regulatory Affairs (OIRA), Karen Martin, an EPA scientist who was working on the rule, provided her colleagues her initial impressions on the interagency comments regarding the rule, which OIRA had just recently forwarded to the EPA. Martin noted that some commenters, un-named staff from one of the EPA's peer agencies, questioned the EPA's assumption that higher ozone levels contribute to premature deaths. Martin directly quoted a "set of commenters" who recommended that "EPA remove the assumption that ozone is associated with mortality impacts." The interagency comments themselves are not available publicly and were not included in the batch of documents sent by EPA in response to CPR's FOIA request. While technical-sounding, the assumption about the relationship between elevated ozone levels and premature deaths formed a critical part of the agency's regulatory impact analysis for the rule. (The draft final analysis, which was the subject of the interagency complaints, is available here.) In the regulatory impact analysis, the agency explains that it included this assumption at the recommendation of the National Academy of Science (see page 3). The monetized benefits of preventing ozone-related mortality was to be the second largest source of the rule's benefits (see page 34); thus, the failure to include these benefits would serve only to distort the rule's cost-benefit analysis more. (As practiced, several inherent methodological flaws lead cost-benefit analysis to over-count costs while under-counting benefits, rendering it systematically biased against protective regulations.) Mon, 05 Nov 2012 09:15:28 -0500 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D0ECE650-0221-E1DF-35AA533BCEE78941 http://www.progressivereform.org/CPRBlog.cfm?idBlog=D0ECE650-0221-E1DF-35AA533BCEE78941 Cross-posted from Environmental Law Prof Blog. Unlike climate change, clean energy policy has received a fair bit of attention in the presidential campaign. Obama made clear that he supports renewable energy as part of his "all of the above" approach, while Romney would end an important federal subsidy for wind power and otherwise increase reliance on coal, oil and gas. But for those who are disappointed that Obama didn't say more about our need to transition away from fossil fuel and towards renewables, remember the old adages "actions speak louder than words" and "put your money where your mouth is." Here are some facts about Obama's actions and expenditures: First, we must recall that subsidies for fossil fuels have been a fixture in US energy policy. As discussed in a recent report by venture capital firm DBL Investors, these subsidies have come in many forms including direct payments and preferential loans; favorable tax treatment; and government investment in R&D and infrastructure. Coal mining companies have enjoyed generous tax treatment since the early 1930s, and the government's investment in geological surveys and railroads also greatly facilitated coal-fired electricity. Natural gas combustion technology benefited from billions of dollars worth of jet engine technology research funded by the Department of Defense research. The report finds that, in total, the oil and gas industries received about $350 billion in subsidies between 1918 and 2009. Fri, 02 Nov 2012 15:20:11 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C2585ED7-DE06-17B8-C58C984DF2D9B145 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C2585ED7-DE06-17B8-C58C984DF2D9B145 The most solemn commitment borne by an elected official is to promote the public welfare and keep the citizenry safe. As New York City struggles to rebound from one of the fiercest storms in memory, Mayor Michael R. Bloomberg rose to that occasion with an urgent call for government at all levels to forcefully address climate change. Yes, folks, Gotham gets it. In an editorial for Bloomberg View, the mayor wrote: The devastation that Hurricane Sandy brought to New York City and much of the Northeast -- in lost lives, lost homes and lost business -- brought the stakes of Tuesday's presidential election into sharp relief. The floods and fires that swept through our city left a path of destruction that will require years of recovery and rebuilding work. . . . In just 14 months, two hurricanes have forced us to evacuate neighborhoods -- something our city government had never done before. If this is a trend, it is simply not sustainable. Our climate is changing. And while the increase in extreme weather we have experienced in New York City and around the world may or may not be the result of it, the risk that it might be -- given this week's devastation -- should compel all elected leaders to take immediate action. He described New York City's own efforts to fight climate change by reducing carbon emissions "by 16 percent in just five years." He could also have noted his city's impressive planning efforts to adapt to those climate effects that can no longer be avoided. Fri, 02 Nov 2012 11:04:04 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C16F1DFE-A904-1D31-CA4A422E055419CA http://www.progressivereform.org/CPRBlog.cfm?idBlog=C16F1DFE-A904-1D31-CA4A422E055419CA One of the biggest challenges for the EPA's Integrated Risk Information System (IRIS), a database for toxicological information and human health effects data that plays a role in many regulatory safeguards, is how slowly it produces chemical assessments. One of the reasons: chemical industry interests have flooded the comments on many IRIS assessments with pages of non-germane information for EPA to wade through. In a letter today to EPA Administrator Lisa Jackson, CPR President Rena Steinzor and Policy Analysts Wayland Radin and Matthew Shudtz urge the agency to put reasonable limits on IRIS comments. They looked at 70 comments on 5 recent IRIS assessments (totaling 2800 pages, with attachments), and found that " interested parties, particularly industry trade associations, frequently submit comments that do not provide relevant and timely information to EPA, but rather waste EPA's time and resources and delay badly needed public protections." The dockets in the five assessments included comments that were redundant, raised non-germane issues, called for reconsideration of settled issues, or were unnecessarily long submissions. From the letter: We recommend that EPA take strong steps to establish more effective filters on the deliberate loading of the record with redundant and irrelevant information. The agency should develop criteria for submitting comments and, if submitters do not voluntarily comply with this guidance, the agency should excise the documents filed by egregious violators from consideration. EPA is no less entitled than the judiciary to control the manner in which commenters appear before it to make their arguments. The courts have developed limits on the scope, format, and content of such submissions that greatly facilitate their timely decision-making. Thu, 01 Nov 2012 12:53:54 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BCAD9614-E273-C984-A655082059EAABF1 http://www.progressivereform.org/CPRBlog.cfm?idBlog=BCAD9614-E273-C984-A655082059EAABF1 Cross-posted from Legal Planet. Today's FEMA is a lot different from the organization that flubbed the Katrina response. There have been a number of positive changes, mostly during the past four years. First, as the Washington Post explains, FEMA's authority has expanded: Congress has broadened FEMA's authority so that the agency can respond in advance of major storms, instead of waiting for governors to request federal aid after a disaster strikes. The measures earned plaudits from then-Gov. Haley Barbour (R) of Mississippi and Gov. Bobby Jindal (R) of Louisiana - usually tough Obama critics - and professional emergency managers who had sought the changes for years. Second, unlike the hapless "Brownie" who headed FEMA during Katrina, the current director is an experienced professional. W. Craig Fugate was the head of the highly regarded Florida emergency response agency under Governor Jeb Bush. Fugate began his career as a firefighter, then became head of emergency management in Gainesville, Florida, before going to work for Bush. He knows what he's doing. Wed, 31 Oct 2012 10:24:54 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B6FE5DC6-C2B5-FB41-28377D39EF160C21 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B6FE5DC6-C2B5-FB41-28377D39EF160C21 Cross-posted from Legal Planet. The federal role in disaster response dates back to the 1906 San Francisco earthquake, when General Funston sent troops from the Presidio to deal with the city's desperate emergency. Governor Romney seems dubious about this century-old federal role. During one of the GOP primary debates, Governor Romney was asked what he thought about the idea of transferring FEMA's responsibilities to the states. This is what he said: Absolutely. Every time you have an occasion to take something from the federal government and send it back to the states, that's the right direction. And if you can go even further, and send it back to the private sector, that's even better. Instead of thinking, in the federal budget, what we should cut, we should ask the opposite question, what should we keep? John King, the moderator, then asked, "Including disaster relief, though?" Romney responded:"We cannot - we cannot afford to do those things without jeopardizing the future for our kids." Perhaps explaining why the federal government should be involved in disaster relief is unnecessary, but just for the record, here are several reasons: Mon, 29 Oct 2012 11:30:32 -0400 http://www.progressivereform.org/CPRBlog.cfm?idBlog=ACEE23AC-0DD0-E4B3-77551B2524B46EF1 http://www.progressivereform.org/CPRBlog.cfm?idBlog=ACEE23AC-0DD0-E4B3-77551B2524B46EF1