Shana Jones on CPRBlog {Bio}
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Skipping Rulemaking Process with Backroom Fuel Economy Deal, White House Opened Itself to Darrell Issa's Attack

Amy Sinden and Lena Pons explained in this space on Friday morning how the White House’s fuel economy deal with the auto industry bypassed the rulemaking process and the agency experts charged with determining the “maximum feasible” standard under the law. Late Friday, Rep. Darrell Issa, chair of the House Oversight and Government Reform Committee, joined the fray, promising an investigation of the process. (And we didn’t even know he was a reader of CPRBlog!)

Chairman Issa’s notion that the deal between the White House and automakers was too stringent is absurd, of course. But his stated concern about “the agreement’s lack of transparency, the failure to conduct an open rulemaking process” is absolutely correct.

There’s not much room for doubt that Mr. Issa’s real interest here is in weakening the fuel economy standards, and the administrative process argument is just the tool at hand.

But there’s a lesson here for the White House: By circumventing the rulemaking process in favor of a backroom deal, the Administration left itself vulnerable to Issa and others who will seize on any procedural failing to try to block progress on fuel economy standards. You follow the administrative process because you’re vulnerable to a challenge if you don’t. The irony is that the White House thought getting a deal with the automakers was exactly what they needed to make the plan a done deal. Darrell Issa is going to try to make the opposite the reality.

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BPA, the Chamber of Commerce, and a Summer Road Trip to Remember

Let’s go on a road trip. Whether it’s the beach or the mountains, we all know what going on a road trip means: great memories, possible adventure, time to mosey around the country we love. The Chamber of Commerce is also planning a road trip this summer, headed by former Sen. Evan Bayh (D-IN) and Andrew Card, George W. Bush’s former chief of staff. But fun and relaxation are not on the itinerary. Regulations that could protect our children are.

At ThinkProgress, CPR Member Scholar Sid Shapiro explained why the anti-regulation roadshow is ridiculous because of all the myths and misinformation it’s designed to promote. He’s right, of course, but, as a mother, I want to add another perspective. I’m tired of the well-worn refrain that “excessive” regulations “suck the vitality” out of the economy. Not only is the claim false, but it completely ignores all the time, money, and energy caregivers would save if we didn’t have to be on the lookout for toxics in our food and consumer products – the results of inadequate regulation.

Senator Bayh and Mr. Card, have you gone shopping for sippy cups lately? Have you purchased canned food, wondering if the linings contain BPA? Do you bite your tongue when a well-meaning teacher gives your child a plastic toy for good work from the “prize box”? Do you wonder if you need to replace your water pipes? Do you spend hours on the Internet researching safe products, or do you feel guilt because you have given up?

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Scholarship Round-Up: New Directions in Environmental Law

Last week, the Washington University Journal of Law and Policy published New Directions in Environmental Law, a symposium issue featuring articles from six CPR Member Scholars.   The articles explore how lessons learned from first generation environmental statutes should be applied to future legislation in order to accomplish the original goals of the environmental movement.

  • Dan Tarlock, in Environmental Law: Then and Now, describes how the symposium was organized to analyze first generation environmental statutes to raise provocative questions about the future of environmental law.   Tarlock concludes that environmental law in the United States “remains locked in the transition phase of protecting the earth from discrete threats to human and natural well-being.”  “The major themes running through this symposium are that we require a richer theory of the appropriate scale and mix of government participants (monitored by NGOs), management strategies that use information both to set protection targets and to allow flexible ways of reaching them, and ways of reducing the stream of chemicals that impair public health even as the question of what triggers adverse impacts on the human body becomes ever more complex.”
  • In his article Clean Air Act Dynamism and Disappointments: Lessons for Climate Legislation to Prompt Innovation and Discourage Inertia, Bill Buzbee calls for the continuation of the dynamic structure established in the Clean Air Act (CAA) in new pollution-regulating legislation. Buzbee compares the CAA’s structure to the Waxman-Markey American Clean Energy and Security Act of 2009 and the Kerry-Boxer Clean Energy Jobs and American Power Act of 2009. He finds the proposed bills follow the CAA’s burdensome regulatory requirements on EPA and create costly risks and delay in regulation of greenhouse gas emissions through their notice-and-comment regimes.   Buzbee also finds, however, that the proposed bills omit some of the strategies that have proven remarkably effective in the CAA, namely, the Act’s savings clauses and floor preemption strategies that preserve state and local governments’ ability to impose more stringent pollution reductions than federal law.   He concludes that “[l]egislators should hedge their regulatory bets” when crafting federal climate change legislation, “retaining substantial roles for the states.” 
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Big Chicken Loses Round One in Groundbreaking Water Pollution Case

Thanks to a strong ruling from a federal judge in Baltimore Wednesday, large poultry companies are one step closer to being held accountable for the pollution (manure) the small farms that grow chickens for them generate. Responsibility: it’s not just for the little guys anymore.

In March, several environmental groups in Maryland sued Perdue Farms, Inc. and Hudson Farm, a chicken farm that raises Perdue’s chickens, alleging violations of the Clean Water Act. (I blogged earlier about the political brouhaha that erupted here.) Samples taken on five different occasions from a ditch flowing from Hudson Farm showed excessive levels of fecal coliform, E. coli, nitrogen, phosphorus, and ammonia. Agriculture is the largest source of nutrient pollution in the Chesapeake Bay, contributing an estimated 38 percent of the nitrogen and 45 percent of the phosphorous.

The groundbreaking suit not only targeted the specific geographic source of the pollution – Hudson Farm and its stockpiles of uncovered poultry manure – but it also alleged that Perdue, a poultry company with $4 billion in sales annually, was responsible for the mess as well. The court rightly rejected Perdue’s argument that it should be dismissed from the lawsuit because it was a poultry integrator – not a grower – and was, the company asserted, not required to obtain a discharge permit under the Clean Water Act.

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Chesapeake Bay Bill Amended and Passed out of Committee

Senator Cardin's bill to reauthorize the Chesapeake Bay program passed a committee vote this morning, though not before significant amendments were made (see Baltimore Sun, E&E).

We'll have more on the specifics in the future. But for now it's worth noting that one of the amendments takes away EPA’s authority to write permits for nonpoint sources, a much-needed tool in EPA’s toolbox to bolster accountability if the states fail to address nonpoint source pollution.

It’s too bad that, once again, the agricultural interests who collectively constitute the largest source of nitrogen pollution to the Bay want to avoid accountability.

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Senator Cardin's Chesapeake Bay Bill Headed to Mark-Up

Today the Senate Environment and Public Works Committee will discuss Senator Cardin’s Chesapeake Clean Water and Ecosystem Restoration Act of 2009 (S. 1816), along with a suite of other bills to protect the great waterways of the United States. 

Critically, the bill codifies the Bay-wide Total Maximum Daily Load (TMDL), requiring it to be implemented and enforced.  To remedy the pervasive lack of accountability in prior Bay restoration agreements, the bill requires states to submit biennial progress reports and to commit to fulfilling biennial milestones and empowers the EPA to withhold funds, develop and administer a federal implementation plan, or require new or expanding dischargers to acquire offsets that result in a net decrease of pollution. The bill makes progress in other significant areas, including:

  • Non-point sources. The Clean Water Act has dramatically reduced pollution from point sources, but nonpoint sources (runoff from farms, forestry activities, overflowing septic tanks, parking lots, golf courses, and mining operations) are left unregulated – even though water pollution from nonpoint sources dwarfs all other sources by volume. Under the Bay-wide TMDL that S. 1816 codifies, EPA must include “enforceable or otherwise binding load allocations” for all nonpoint sources, including some of the major contributors to Bay pollution: atmospheric deposition, agricultural runoff, and certain stormwater sources. Naturally these economic interests are staunchly opposed to this provision, but the Bay cannot be restored unless nonpoint source polluters do their part.
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Bidding for Pollution Control Dollars in the Chesapeake: A Modest Proposal for the Amish Farmer

If I remember my Sunday School lessons correctly, “clean living” should result in a lot of good things in addition to a heavenly reward: a strong character, an orderly home, and a healthy body and environment.   Ironically for the Amish, a clean living group if there ever was one, clean living also produces dirty waters.

As yesterday’s New York Times article reminds us, Amish farms in Lancaster county generate more than 61 million pounds of manure a year – much of which ends up in waterways that run straight into the Chesapeake Bay.  Dealing with the farmers in Lancaster county is a challenge: How do you encourage a population that resists change to adopt new farming practices? Impose stronger regulations? Do what we usually do with farmers, which is to pay them using grant dollars to change?

The challenge is even greater when you consider how strongly the Amish value self-sufficiency and distrust government.   Unlike many who loudly profess such values, the Amish practice what they preach:  they live genuinely self-sustainable lives, and they don’t take government benefits, refusing even Social Security. I was struck in the article by a farmer declaring he had vowed never to take a government grant – quite a different mindset from our culture of subsidies for agribusiness, corporate welfare, and bank bailouts. 

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CPR Scholarship Round-up: Innovation for nonpoint source pollution and animal migrations on the one hand, and obfuscation at OIRA on the other

We’ve all seen the dramatic headlines recently concerning large-scale environmental disruptions, including a catastrophic oil spill in the Gulf and mining disasters killing workers from West Virginia to China. Meanwhile, in Congress, climate change bills are proposed, altered, weakened, and eventually shelved, and the United States still fails to take action on climate change. CPR’s Member Scholars march forward, however, proposing reforms that range from creating transparency in agency decisions to protecting animal migrations. Below is a quick overview of some of their recent publications.

  • Robert Adler, in his article, Priceline for Pollution: Auctions to Allocate Public Pollution Control Dollars, which was published in the William and Mary Environmental Law and Policy Review, argues for competitive bidding for public pollution control money, most notably in the area of nonpoint source pollution. After discussing the benefits of auctions in government spending, Adler uses the Colorado River salinity control program as a model for soliciting bid proposals in the Chesapeake Bay watershed to fund projects designed to reduce nitrogen, phosphorus, and sediment and identifies lessons learned from the program that could be applied to auctions in other watershed programs. He finds that the addition of bidding into programs, such as the Chesapeake Bay Program, could increase cost-effectiveness and efficiency in pollution control.
  • Robert Fischman, in the Virginia Environmental Law Journal, The Legal Challenge of Protecting Animal Migrations as Phenomena of Abundance, co-authored with Jeffrey B. Hyman, discusses the ever-changing need for migration protection, especially in the face of climate change. By focusing on the legal steps necessary to create an effective conservation strategy, the authors establish four specific goals to protect migrations: incorporating thresholds based on abundance goals, potential transboundary laws, migration connectivity, and protection from harvests of both the migrating animals and the migrating animals’ food sources.
  • A disturbing aspect of climate change programs, and agency actions in general, is the potential interference by the White House as presidential supervision.   In Disclosing “Political” Oversight of Agency Decision Making, which appeared in the Michigan Law Review, Nina Mendelson argues that presidential supervision creates an opaque process that masks executive influence over agency rulemaking. She cites examples of presidential interference in cases of global warming, surface mining operations, and numerous other decisions, calling for better transparency to prevent politicization of agency rulemaking.


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Big Chicken Plays Chicken Little in Maryland While Assaulting Academic Freedom and Access to Justice in the Meantime

The proverbial poop has hit the fan in Maryland this month after two environmental groups – the Assateague Coastal Trust and the Waterkeeper Alliance – sued Perdue Farms, Inc. and Hudson Farm, a Perdue-contract chicken factory farm in Berlin, Maryland, for violating the Clean Water Act. Water sampling from ditches next to Hudson Farm found high levels of fecal coliform and E. coli. Phosphorus and nitrogen – nutrients killing the Chesapeake Bay – were also found.

The two environmental groups are represented by pro bono student attorneys at the Environmental Law Clinic at the University of Maryland School of Law (where I was once a student; I should also note that CPR President Rena Steinzor is the former director of the clinic). The groundbreaking suit not only takes on a chicken farmer, it also targets Perdue – which contracts with farms throughout the state to raise the chickens it processes.

Perdue’s response? To cry "fowl," pardon the pun, of course. Instead of just fighting the lawsuit fair and square in court, Perdue also took its ruffled feathers to the Maryland General Assembly, pressing it to muzzle the student attorneys and send a message to the clinic. Perdue’s claims that the sky is falling have apparently worked. Last week, budget language approved by the Maryland Senate included a provision ordering the law school to produce a list of the clients it has represented over the last two years or lose funding – $250,000 in one version, $750,000 in another. Students take note: this is what happens when you take on the nation’s third-largest poultry company with $4.6 billion in sales annually.

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Climate Change Adaptation Progress: Administration Releases Interim Report on Strategy for a Strategy

Tuesday, the White House Council on Environmental Quality (CEQ), the White House Office of Science and Technology Policy (OSTP) and the National Oceanic and Atmospheric Administration (NOAA) released an Interim Progress Report of the Interagency Climate Change Adaptation Task Force, a group charged by President Obama in Executive Order 13514 to develop (by Fall 2010) recommendations for the federal government for adapting to climate change. More than 20 federal agencies, departments, and offices are participating in the task force.

The progress report notes that some agencies are taking action toward implementing programs and policies to deal with the changes and risks climate change will bring. But it also notes many significant gaps remain, including:

  • Coherent research programs to identify and describe regional impacts associated with near-term, long-term, and abrupt global climate change;
  • Relevant climate change and impact information that is accessible and usable by decision-makers and practitioners;
  • A unified strategic vision and approach;
  • Understanding of the challenges at all levels of government;
  • Comprehensive and localized risk and vulnerability assessments;
  • Organized and coordinated efforts across local, State and Federal agencies;
  • Strong links between, and support and participation of, Tribal, regional, State, and local partners;
  • A strategy to link resources, both financial and intellectual, to critical needs; 
  • A robust approach to evaluating and applying lessons learned.


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