Although the Supreme Court upheld the Affordable Care Act’s requirement that most individuals purchase health insurance (called the individual mandate) as within Congress’ power to levy taxes, it stated that Congress lacked the power to enact it under the Commerce Clause. Under prior case law, Congress could regulate activities substantially affecting interstate commerce by any means not offending the bill of rights. Since the Affordable Health Care Act regulates a set of activities that substantially affect interstate commerce, namely the provision of health care (including insurance), it posed no substantial issue under that case law. The objection to the “individual mandate” at bottom involved an effort by conservatives to defend individual liberty of the type protected by the Court during the Lochner era, when it created “substantive due process” doctrines to ward off progressive legislation.
Yet, the Court agreed to redefine the issue as whether the activity regulated by a single provision of this plainly constitutional statute, namely the individual mandate provision, substantially affected interstate commerce. On this matter, five justices—Alito, Kennedy, Roberts, Scalia, and Thomas—answered, in essence, that this provision regulated inactivity, the failure to purchase insurance. They created, out of whole cloth, a brand new constitutional principle that the federal government may not order somebody to purchase a product.
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Good news for the Arctic! “I believe there will not be an oil spill”—this according to Ken Salazar, the nation’s Secretary of Interior and, now, environmental crystal-gazer. As someone still fretting about BP’s mess in the Gulf, I want to believe; but it’s hard. So let me back up.
Earlier this week, Secretary Salazar said it was “highly likely” that his agency would grant Shell Oil permits to begin drilling exploratory wells in Arctic waters north of Alaska, despite opposition from many environmental groups. While acknowledging the many challenges presented by such an operation, the Secretary recalled his department’s new permitting standards and expressed confidence in a new oil containment device that was recently tested in Washington’s Puget Sound.
Then: “I believe there will not be an oil spill. . . . If there is, I think the response capability is there to arrest the problem very quickly and minimize damage. If I were not confident that would happen, I would not let the permits go forward.”
Full textMember Scholar Noah Sachs and Policy Analyst Aimee Simpson have sent a letter to the EPA nominating the chemical Bisphenol A (BPA) to be included on the “Fourth Contaminant Candidate List” for possible regulation. They write:
Pursuant to the Safe Drinking Water Act Amendments of 1996 (SDWA), the U.S. Environmental Protection Agency (EPA) must compile a list of unregulated contaminants that are known or anticipated to occur in public water systems and may require regulation under the SDWA. EPA then must make a decision about whether or not to regulate a least five of the contaminants on the list. EPA recently issued a notice and request for nomination of chemical and microbial contaminants for possible inclusion in the fourth drinking water Contaminant Candidate List (CCL 4). Under existing guidelines, EPA selects contaminants for a CCL based on a scoring system that addresses two primary factors: health effects and occurrence in water supplies. BPA received a low score on this scale during deliberations on the CCL3 and was not included on that list. We believe that new information published since the CCL3 deliberations will change BPA’s score. It deserves your close attention, and BPA should be added to the CCL 4.
Sachs and Simpson explain that the scientific research on BPA has advanced significantly, particularly with regard to low-dose impacts. They write: “these low-dose health effects are not properly accounted for in current risk assessments of BPA and CCL evaluations.” The full letter is here.
Full textThe EPA has quietly missed another deadline on issuing the final revised “boiler MACT” rule. The agency had pledged for many months that the rule would be finalized in April. Then, in an April 30th “status report” filing with the DC Circuit Court of Appeals, the agency said: “EPA intends to take final action on this proposed rule in the Spring of 2012.” Wednesday was the first official day of summer.
The revised version of the rule will provide less pollution reduction than the original version, but is still expected to prevent thousands of deaths each year. James Pew, of Earthjustice, told E&E News last week that the rule has been made “illegally weak.”
The rule has been under review at OMB’s Office of Information and Regulatory Affairs (OIRA) since May 17. OIRA Administrator Cass Sunstein wrote in a Chicago Tribune op-ed in March that this administration believes in “maximizing net benefits.”
Michael Livermore, of the Institute for Policy Integrity, has argued that “in order to maximize net benefits and get the most bang for taxpayers’ buck, standards from [the 2010 proposal] would have to be more stringent, not less.”
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Today’s post is the fifth in a series on a recent CPR white paper, Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties. Each month, this series will discuss one of these ten treaties. Previous posts are here.
1996 Protocol to the London Convention on the Prevention of Marine Pollution by Dumping of Wastes and Other Matter
Adopted by the Parties to the London Convention (including the United States) and Opened for Signature on November 7, 1996
Entered into Force on March 24, 2006
Number of Parties: 42
Signed by the United States on March 31, 1998
Sent to the Senate on September 4, 2007
Reported favorably by the Senate Foreign Relations Committee on July 29, 2008
The world’s oceans have long served as the world’s toilet. For decades, nations allowed ships bearing their flags to dump into the oceans ever-mounting volumes of chemicals and radioactive wastes, incinerated debris, sewage sludge, municipal wastes, and other wastes from ships. Ocean dumping threatens coral reefs and other marine life, and can harm humans through contamination of seafood.
Full textThis is not your father’s Earth Summit. This week’s UN Conference on Sustainable Development is meant to assess how far we’ve come from the 1992 UN Conference on Environment and Development (ambitiously named the Earth Summit). And the 1992 Earth Summit was ambitious, featuring the largest gathering of world leaders in history as well as thousands of civil society and private sector participants whose presence heralded the emergence of a global environmental movement. The original Earth Summit endorsed sustainable development as the conceptual framework for the future balancing of environment and development. It also reshaped international environmental governance, completing binding treaties on climate change and the conservation of biodiversity; the Rio Declaration, with its overarching principles of sustainable development; a set of non-binding forest management principles; Agenda 21, a five-hundred page blueprint for achieving sustainable development; and establishing the UN Commission on Sustainable Development to monitor progress. By any measure the Earth Summit was a major milestone in global environmental diplomacy.
This week’s Rio+20 Conference arrives with much less ambition and even less optimism. The Conference is highlighting two areas of general importance to sustainable development: the institutional framework for sustainable development (governance) and promoting the green economy. To these, in recent months delegates have added a call for sustainable development goals. Broad enough to encompass virtually any subject, these three general areas have left governments struggling to focus on outcomes that are both feasible and worthwhile.
The negotiations have thus far suffered from a desire to say something about everything, while at the same time saying nothing specific about anything. Before arriving at Rio this week, negotiators had agreed to approximately 70 paragraphs, while nearly 300 more remained bracketed. Compromise over the most political issues could not be reached until higher-ups arrived together in Rio. Reports now suggest some progress is being made, and some outcome document will likely emerge. There is no chance for any binding law to come from the Rio+20 negotiations, but the outcome could still signal important political commitments and establish a framework within the UN for addressing sustainability issues.
Full textToday, the EPA announced its new proposed National Ambient Air Quality Standard (NAAQS) for fine particulate matter, commonly referred to as soot. Soot is one of the most common air pollutants that Americans encounter, and it is extremely harmful to our health and the environment, contributing to premature death, heart attacks, and chronic lung disease. Today’s proposal is a significant step forward that will bring tremendous benefits for the public if and when it is finalized.
The proposal comprises two parts—an annual standard and a daily standard. EPA is proposing to maintain the daily standard of 35 micrograms per cubic meter of air (hereafter “micrograms”), while lowering the annual standard from 15 micrograms to within the range of 12 to 13 micrograms. Significantly, this proposal is consistent with the recommendation of the EPA’s scientists, which was endorsed by the Clean Air Science Advisory Committee (CASAC), a committee of leading independent air pollution experts established by the Clean Air Act to advise the agency on the science underlying Clean Air Act rules.
The EPA is to be commended for issuing a soot NAAQS proposal that is supported by the law and science. Under the Clean Air Act, the agency must set the soot NAAQS at a level that is protective of human health with an adequate margin of safety. Congress intended this standard to protect the most vulnerable members of our society, including children, the elderly, and the chronically ill, and, as the US Supreme Court has recognized, this standard explicitly forbids the consideration of any regulatory costs. The Clean Air Act further directs the agency to review the underlying science for the standard at least once every five years; if the science shows that the existing standard is not protecting human health with an adequate margin of safety, the agency must set a stronger standard that meets this health-protective goal.
Full textRep. Joe Barton, speaking at a hearing last week, stuck it to President Obama’s EPA (at 39:00):
In Idaho, just recently, the Obama Administration went against a family called the Sacketts on a wetlands issue. Again, Mr. Chairman, the Congress sets the rules, and the Administration enforces them. This Obama Administration, in the case of the EPA, doesn’t want to play by the rules, they want to set their own rules.
At issue is the case of Mike and Chantell Sackett, decided this year by the Supreme Court. The Sacketts planned to build a house on land they had purchased in Idaho. The EPA said they could not because the land was a wetlands area; it issued the Sacketts an administrative compliance order, which they challenged in court. (See our coverage of the case, by Nina Mendelson, Holly Doremus, and Joel Mintz, and analyses post-decision by Mendelson and Mintz; see also the documents NRDC obtained via FOIA shedding light on the plaintiffs’ story.)
Let's lay aside for the moment whether EPA was right to issue the order. (See some of the posts above if you want more on that.) What's striking about Barton's statement is his tenuous grip on the facts. Barton says it was President Obama's EPA that challenged the Sacketts. But the EPA issued the compliance order in 2007. Of course, in 2007, Barack Obama was the junior senator from Illinois. George W. Bush was in the White House.
Full textThe House Energy & Commerce Committee’s Subcommittee on Energy and Power holds a hearing today on “EPA Enforcement Priorities and Practices.” CPR Member Scholar Joel Mintz, Professor at Nova Southeastern University Law Center, will be testifying. From his testimony:
.. during the eight years of the George W. Bush administration, the civil penalties assessed against environmental law violators averaged $117 million per year. In contrast, during the first three years of the Obama administration, EPA enforcement resulted in the assessment of a lower amount of civil penalties: $115 million per year. ... Although there may well be good explanations for these declines, they do support the overall conclusions of my historical research: EPA’s enforcement work during the Obama period has been similar in nature to its work in nearly every administration since the Agency was established, regardless of the party affiliation of the president.
Mintz is the author of Enforcement at the EPA: High Stakes and Hard Choices.
Full textToday CPR releases Manure in the Bay: A Report on Industrial Animal Agriculture in Maryland and Pennsylvania. The paper provides a snapshot of the federal Concentrated Animal Feeding Operations (CAFO) permit program under the Clean Water Act (CWA) and how these states are implementing this program. The report provides recommendations for strengthening these programs to curb pollution to the Chesapeake Bay and provides a brief glimpse at the broader animal agricultural and manure management programs work in these states. The report was written by CPR President Rena Steinzor and me.
Congress specifically identified CAFOs as sources of pollution to be regulated four decades ago, but regulations at the federal and state levels have only begun to be developed and seriously implemented. In the meantime, the dramatic rise in the number of animals in fewer and fewer facilities has led to a dramatic increase in the amount of manure and wastewater generated by these industrial operations. Animal manure and process wastewater contain nutrients such as nitrogen, phosphorus, and potassium; pathogens; antibiotics; and other pollutants such as cleaning fluids, heavy metals, synthetic fertilizers, and pesticides. When these substances reach local waterways without being treated, myriad human health and ecosystem impacts are inevitable. Stronger regulations are badly needed.
The delays in regulating CAFOs have had devastating consequences for water quality, but progress is finally in the works. In October, EPA proposed and opened for public comment a rule to collect information from large animal feeding operations to help determine which operations constitute CAFOs. EPA is slated to propose another rule this year aimed at CAFOs and animal feeding operations in the Chesapeake Bay (EPA said it was planning to release the rule in May, and it’s under a court deadline to do so this month, but regular readers know that means far less than it ought to). This latter rule is expected to expand CAFO permit coverage to operations that are not currently subject to federal requirements. Also pending on the horizon is a revised CAFO rule, which will clarify which operations must apply for pollution discharge permits.
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