Imagine for a moment that you’rethe chief executive of a company that manufactures chemicals used in plastics that become consumer products, especially plastic picnic ware. The head of your product development lab reports that she has just gotten some troubling results regarding one of your biggest sellers—a chemical agent that makes it possible for plastic utensils to maintains their decorator colors. The study shows that this agent causes severe neurological damage in rats. The Toxic Substances Control Act, commonly referred to as T(O)SCA, requires you to turn all “health and safety” studies over to the Environmental Protection Agency (EPA). You tell her to do so, but order that the name of the suspect substance be replaced with a so-called “generic chemical name” that makes it impossible for anyone to understand the implications of the study. You further instruct that your company name be redacted from the information transmitted to EPA. The result is a report that neither allows the public to understand the implications of the study nor to monitor how the government and the company curb either its marketing or its use.
Any college sophomore biology student knows that scientific advances depend on the free and open sharing of information so that experiments can be replicated and hypotheses disproved. So it was that over the last several days a small group of researchers gathered in Geneva under the auspices of the World Health Organization to wring their hands about whether to make public groundbreaking research on a particularly virulent strain of the lethal bird flu. The upshot? The research will be published, despite the risk that it could be used by terrorists. The group decided that the importance of scientific openness regarding this crucial public health threat outweighed the superficially appealing notion of embracing secrecy that would chill further discoveries.
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Well, another magnificent Mardi Gras has ended, and at this point, I’d normally be slouched on the sofa sipping a tomato juice (neat) and sorting beads. But not this year. That’s because next week, squadrons of lawyers, journalists, petroleum engineers, and fisher folk are scheduled to descend on New Orleans, squeeze into a federal courtroom, and begin on Monday what the media have modestly called, “The Trial of the Century,” otherwise known as the BP Oil Spill litigation.
Whatever the rest of the century holds, it seems fair to say that this legal dispute, if it does not settle, will be the most complicated environmental trial anyone has ever seen. With a thousand plaintiffs, a galaxy of witnesses, and 20,000 exhibits, this spectacular has more moving parts than a Madonna half-time show. As the trial unfolds, I’ll provide you with some occasional shrimp-boots-on-the-ground legal blogging.
First, though, I’ll start with the background of the case (please see also two CPR white papers: Regulatory Blowout: How Regulatory Failures Made the BP Disaster Possible, and How the System Can Be Fixed to Avoid a Recurrence (Oct 2010) and The BP Catastrophe: When Hobbled Law and Hollow Regulation Leave Americans Unprotected (Jan 2011)). Here are some answers to common questions.
Q: Can you remind me what the BP Oil Spill was all about? I remember “Top Kill” and “I’d like my life back,” but the rest of it is a little hazy.
Full textLast month, President Obama denied TransCanada’s permit application for the Keystone XL pipeline because a congressionally mandated deadline did not allow enough time to evaluate the project once Nebraska completed its analysis for re-routing of the pipeline around the Sand Hills.
A January 26-29 poll from Hart Research Associates found that, after hearing arguments for and against the pipeline, 47% of voters in four Presidential battleground states polled agree with President Obama’s decision while 36% disagree with it. Yet just this week, the U.S. Senate is considering whether to add language to an unrelated highway authorization bill to force the President to approve the Keystone XL tar sands pipeline.
The pipeline rider has the backing of 44 Republicans and one Democrat in the Senate. Passing it is a bad idea on several levels. For one thing, riders like this one short-circuit the congressional process. By inserting an unrelated substantive provision like this into an authorization or appropriation package, the provision doesn’t receive the scrutiny that it would if it were forced to stand on its own, and Senators who are against the pipeline might feel compelled to vote in favor of the package because it includes other benefits for their constituents. (For this reason, many state constitutions forbid appropriations riders, but the federal constitution does not.) For more on this see my article Sacrificing Legislative Integrity at the Altar of Appropriations Riders: A Constitutional Crisis.
Full textTwo of my CPR Member Scholar colleagues, Nina Mendelson and Holly Doremus have done a first-rate job of previewing and analyzing the oral argument in Sackett v. EPA – a case now awaiting decision by the U.S. Supreme Court.
I fully share Professor Doremus's hope that, even if the case results in a loss for the government, the Supreme Court's decision in Sackett will not be decided on constitutional grounds and will be limited in its impact to the Clean Water Act. At the same time, however, I am less sanguine than she is about the potential that exists for even a relatively narrow decision to damage EPA's underfunded and overstressed enforcement effort.
It is a little known fact – but it is a fact – that the collective resources of EPA and the states have simply not been able to keep up with the challenges of enforcing Clean Water Act requirements. The governments' portfolio of water pollution threats has evolved from visible discharges from factories and sewage treatment plants to include hundreds of thousands of sources of mining wastes, industrial and municipal storm water runoff, spills of sewage from aging sewer systems, and agricultural runoff. In recent years, the NPDES permit system has drastically expanded in scope. As EPA's 2009 "Clean Water Act Enforcement Action Plan" candidly acknowledged: "The sheer magnitude of the expanding universe of the NPDES program itself, from roughly 100,000 traditional point sources to nearly a million sources...presents challenges in how we regulate and enforce the laws of this country."
At the same time, however, the resources available to EPA and the states to meet these challenges have been considerably diminished. EPA's budget has nominally "plateaued" since the mid-1990s. However, the Agency's statutory responsibilities have grown and (until recently) it has had to pay its employees salary increases mandated annually by Congress – a situation that has gradually, but significantly, reduced the funds available to EPA for its regulatory and enforcement work.
Full textLast fall, in a speech I gave at an environmental justice event in Los Angeles, I ruffled some feathers with an impromptu line that went something like this: “Believe it or not, federal environmental statutes say nothing directly about environmental justice.” During the “Q & A” I was challenged by an environmental activist and lawyer who listed various ways that advocates had successfully used federal environmental statutes to address inequalities in many of California’s minority and low-income communities.
I saw immediately that I had not been clear. For what I meant was that although environmental statutes could be used to further the interests of social justice, the terrain was not landscaped for that purpose. It took activists with imagination and grit to climb the peaks my questioner was talking about. It took lawyers who could scan the glaciers of the federal code and find a foothold—a place where you could jam your steel-toothed boot, stabilize your momentum, and launch yourself forward. (EPA policy analyst Abby Hall and I expand on our theory of regulatory “footholds”—and also regulatory “rope lines”—here.)
Like community lawyers, policy makers need footholds too. EPA Administrator Lisa Jackson has made environmental justice a pillar of her tenure. But many of our environmental statutes, because they pre-date the modern environmental justice movement, were not developed with this priority in mind. So Administrator Jackson asked her lawyers to survey the landscape of environmental authorities for legal standards and directives that would provide the positioning and leverage to promote “the fair treatment and meaningful involvement of all people regardless of race, color, national origin, or income.” EPA’s lawyers then catalogued those footholds and put them in a guide intended for use across the agency.
In an admirable display of integrity and transparency, EPA has now publicly released that guide for all lawyers, activists, and citizens to see – and perhaps use.
Full textIn an article in the most recent issue of The Abell Report, the newsletter of The Abell Foundation, CPR President Rena Steinzor and CPR Policy Analysts Aimee Simpson and Yee Huang take a look at what ails the Chesapeake Bay (Spoiler Alert: it involves years of inaction on pollution), and offer up a number of practical steps the state of Maryland could take to make good on its commitments to clean up this most precious of natural resources.
The article draws on a day-long forum CPR co-sponsored this past October with the University of Maryland Francis King Carey School of Law, an event that gathered federal and state officials, as well as leading environmental activists from around the region.
Steinzor, Simpson and Huang make the case that the reason efforts to clean up the Bay have largely failed to date is that the Bay states are fundamentally unaccountable. They write:
Full textFor more than two decades, the primary Bay states (the District of Columbia, Maryland, Pennsylvania, and Virginia) have engaged in a series of round-robin consultations held under the auspices of the Chesapeake Bay Program. Progress was made in diagnosing the causes and implications of dead zones; diminishing crab and fish populations; algal blooms; and pollution that made rivers, lakes, creeks, and streams unusable for drinking, swimming, and boating. Individual states implemented innovative and effective pollution-control programs; glossy reports were produced; and every year, governors and the administrator of the EPA gathered for a photo op on the banks of picturesque Bay waterbodies. Despite the analyzing, meeting, planning, and talking, the Bay’s health remains tenuous, and the Bay states have repeatedly failed to meet the pollution-reduction goals set during these appearances.
A new study underscores the wisdom of reducing the risks of mercury and other pollutants rather than relying on risk avoidance measures such as fish consumption advisories. Mercury’s adverse effects are not limited to human health; its harms are felt throughout our ecosystems. According to this most recent study, released today by the Biodiversity Research Institute, mercury harms a broader swath of wildlife than previously recognized, including many bird species that are not piscivorous. This finding echoes those of studies in the Great Lakes published this fall, which concluded that a larger number of species were adversely affected by mercury contamination than previously understood by scientists.
From a regulatory perspective, the harms of mercury contamination might be addressed by risk reduction – measures that require the sources of mercury pollution to reduce or prevent mercury releases into the environment – or by risk avoidance – measures that leave it to those who are exposed to protect themselves from mercury permitted to enter or remain in the environment. The EPA’s recent rule regulating coal-fired power plants’ mercury emissions is an example of the former approach. An example of the latter approach was the George W. Bush administration’s suggestion, upon proposing an exceedingly lax rule for power plants (ultimately vacated by the D.C. Circuit), that people protect themselves from the continued mercury contamination by consulting national and local fish consumption advisories.
I have elaborated the many perils of relying on risk avoidance in lieu of risk reduction elsewhere. Among the limitations of depending on risk avoidance measures such as fish consumption advisories, ozone alerts, and “keep out” signs, are the facts that these measures are unjust and ineffective in practice. They simply don’t result in “the same amount” of protection for human health, as proponents of such measures hope.
Full textCross-posted from Legal Planet.
Clearly I need to slow down Rick’s internet connection to get him to stop scooping me.
Rick reported earlier that the President has floated a proposal to reorganize the Commerce Department and related agencies which would apparently include moving NOAA (all of NOAA, according to OMB’s Jeffrey Zeints, not just its ESA functions) into the Department of Interior.
Actually, although that’s the way the story is being spun out in the media, it’s not exactly what’s going on. What the President has really proposed is that Congress give him the authority that presidents routinely enjoyed before 1984 to reorganize and streamline government agencies. That proposal makes all kinds of sense, both substantively and politically. Substantively, of course as circumstances and societal priorities shift, government agencies should not permanently remain static. But the current Congress is so shameless and so obsessed with micromanaging the executive branch that it refuses to confirm presidential appointees if a minority objects to the agency those appointees will oversee and holds sham sessions at which no business may be conducted to try to prevent the President from making recess appointments. This Congress is not going to give President Obama what he’s asking for, which makes the proposal a smart political move. It gives Obama a concrete way to campaign against the Congress, and to put the Republicans on the defensive.
No doubt to maximize that political benefit, or perhaps just to tweak his most dedicated congressional opponents, the example the President is offering is the merger of a number of agencies, including many functions of the Department of Commerce, focused on business and trade. Those, of course, are typically viewed as higher Republican than Democratic priorities. Obama asserted in his remarks today that the changes he wants authority to make respond directly to feedback that what businesses really hate in dealing with government is not the fact of regulation but “a system that [is] too much of a maze.”
Full textCross-posted from Legal Planet.
As usual, I’m behind Rick on commenting on the latest Supreme Court development. (In my defense, it is the first day of classes, although I know that’s not much of an excuse.)
Unlike Rick, I didn’t attend the oral argument (see lame excuse above), but having read the transcript I agree with the general consensus that EPA is going to lose this case.
However, I don’t agree with Rick’s conclusion that “the Sacketts will wind up winning their long legal battle with federal regulators.” That remains to be seen. Remember, this is all a preliminary skirmish. EPA has said at this point that it believes the Sacketts are in violation of the Clean Water Act. Sacketts disagree, and think they should be able to challenge EPA’s view without waiting for EPA to bring an enforcement action against them. The lower courts said no to that. The Supreme Court seems certain to reverse, but all that means is that Sacketts will get their day in court. If EPA is right, Sacketts will still not be able to fill their parcel without a permit, and they’ll still be subject to EPA’s order that they remove the fill and restore the property.
Three other things I take away from my read of the transcripts.
1. This decision is going to be statutory, based on the Administrative Procedure Act and Clean Water Act. The Court showed no interest in the due process claim, which it doesn’t need to reach if it holds there is a statutory right of pre-enforcement review.
Full textOn Monday, GAO released its latest installment in what has become a somewhat regular series of reports on EPA’s Integrated Risk Information System (IRIS) program. In 2008, GAO warned that “the IRIS database was at serious risk of becoming obsolete because the agency had not been able to keep its existing assessments current, decrease its ongoing assessments workload to a manageable level, or complete assessments of the most important chemicals of concern.” Although IRIS didn’t get a clean bill of health, this new report highlights some important improvements in the last few years.
To begin, GAO praised EPA for its decision to start publishing comments that other agencies submit during interagency review of draft IRIS documents. The interagency review process was first instituted during the Bush Administration and because it was originally run by OMB’s Office of Information and Regulatory Affairs (OIRA), often resulted in long delays for draft chemical assessments. One of the biggest problems was that it gave agencies like NASA, DOD, and DOE – whose budgets and operations could be impacted by further regulation of toxic chemicals – a privileged opportunity to shape EPA’s risk assessments. Now that interagency review is run by EPA, which has better policies on transparency than OIRA, we at least get an opportunity to see the other agencies’ comments and judge them on their merits.
Of course, as we’ve said before, the interagency review process ought to be scrapped. The IRIS process needs to be streamlined and the best thing to do would be to combine the recursive review periods into a single comment period for all stakeholders, be they government agencies, chemical manufacturers, or public interest groups. Doing so could help speed up the publication of new assessments.
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