Environmental protection

  • July 25, 2013
    Guest Post

    by Brian Korpics, Law Fellow at the Environmental Law Institute

    For three decades, the Equal Access to Justice Act (EAJA) has enhanced parties’ ability to hold government agencies accountable for their actions and inaction. EAJA allows individuals, small businesses and nonprofits to recover attorney fees from the federal government. Fee awards are available only in cases where plaintiffs prevail and the government cannot demonstrate that its legal position was “substantially justified.”The law is used to vindicate a variety of federal rights, including access to Veterans Affairs and Social Security disability benefits, as well as to secure statutory environmental protections: it promotes public involvement in laws such as the National Environmental Policy Act, Clean Air Act and Clean Water Act. EAJA also helps deter government misconduct and encourages all parties, not just those with resources to hire legal counsel, to assert their rights. The lawhas generally enjoyed bipartisan support since its enactment in 1980.

  • July 8, 2013

    by Jeremy Leaming

    Republican senators bent on shuttering or at least greatly hindering the National Labor Relations Board (NLRB), which is charged with protecting the right of workers to organize, continued their efforts of obstruction by holding up nominees to the five-member board. The Senate minority also sought to delay or scuttle the president’s nominations to the Environmental Protection Agency, Department of Labor and Consumer Financial Protection Bureau.

    Senate Democrats are discussing how best to reform chamber processes to facilitate more progress and action on various nominations. We may learn more following Tuesday’s Senate Democratic Caucus lunch meeting if Majority Leader Harry Reid (D-Nev.) raises the issue there with his colleagues.

    Regarding the NLRB, which Republicans have long maintained is an entity harmful to business interests, Senate Republicans blocked attempts to hold up-or-down votes on the nominations of Mark Gaston Pearce, Richard F. Griffin, Jr., Sharon Block, Harry I. Johnson III and Philip A. Miscimarra. Republicans have pointed to an opinion issued earlier this year by the U.S. Court of Appeals for the District of Columbia Circuit that President Obama’s now-expired recess appoints of some nominees were unconstitutional.

    The Republicans argue that until the litigation in the case, NLRB v. Noel Canning, is resolved the labor board should not be permitted to function. The Supreme Court announced in June it would consider the case during its next term. Business lobbyists and their allies in the Senate have looked for all kinds of ways to paralyze or greatly hobble the NLRB, such as refusing to consider to the president’s nominations, which led to the recess appointments.

    After the president sent his package of nominees to the NLRB this spring, ACSblog featured guest blog posts on the struggle over the labor board. They include compelling stories about the work of the NLRB and provide detailed context of the ongoing controversy:

  • June 3, 2013

    by John Schachter

    When I was in eighth grade in 1978, my social studies teacher, Mr. Stoba, asked the class how long does a U.S. senator serve. While he was looking for the more straight-forward answer, “six years,” I had a slightly different view. It being New Jersey, I answered, “It depends on his crime.” But within five years our state had cleaned up its act to a large degree with Bill Bradley and Frank Lautenberg honorably and honestly representing us in the U.S. Senate.

    The death of Senator Frank Lautenberg today has already gotten caught up in the latest political theater. Whom will Republican Gov. Chris Christie appoint as an interim replacement? Might he seriously consider appointing a Democrat (even Cory Booker)? Or will he tack to the far right in an attempt to burnish his credentials with the Tea Party wing of the GOP who have more sway when it comes to the 2016 presidential race?

    But before we fall completely into the political morass of New Jersey politics, let’s pause to pay tribute to this unlikely public servant. I had the good fortune of voting for Lautenberg in 1982, his first time on the ballot and my first time casting a vote in an election, having turned 18 that year. Two summers later I served as an intern for the senator in his Washington D.C. office and got to see up close how this dedicated public servant, who had amassed enough of a personal fortune over the years to not have to work another day in his life, took on entrenched interests and tackled seemingly intractable problems – sometimes with a prickly personality that yielded results if not friends in Congress.

    Frank Lautenberg is responsible more than any other single individual for the ban on smoking on airplanes that most people take for granted today. (Can anyone under the age of 35 even imagine there was a time not that long ago when people could smoke on planes?) The subsequent restrictions on smoking in public places and the stricter labeling restrictions on cigarettes also owe their existence to the dogged efforts of this former smoker.

    Efforts to prevent gun violence – from keeping guns out of the hands of convicted domestic abusers to fighting to eliminate high-capacity ammunition magazines – are the result of Lautenberg’s hard work and dedication. And this New Jerseyan built a strong pro-environment record in a state long plagued by environmental challenges.

    Long before he even entered politics Lautenberg accrued an impressive record of personal achievement. He worked nights and weekends while still a teenager to help support his family following his father’s death from cancer. He enlisted in the Army Signal Corps and served in Europe during World War II then, thanks to the GI Bill, attended and graduated from college before starting a company that earned him millions. Perhaps most proudly, he garnered a spot on Richard Nixon’s enemies list thanks to his fundraising for George McGovern’s 1972 presidential campaign.

  • May 10, 2013
    Guest Post

    by Lisa Heinzerling, Professor of Law, Georgetown Law

    “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.”)

    This is how the White House has come to block the very kinds of initiatives President Obama seemed to praise in his State of the Union addresses: energy efficiency rules have gone from DOE to OIRA and have never left.  As of this writing, nine rules from DOE on energy efficiency are stuck at OIRA. Five have been there since 2011, three since 2012. Six are not final rules; they are merely proposals.  Four of the rules are not even economically significant (that is, they do not impose costs of more than $100 million per year). But all of these rules are stuck, all the same.

  • May 8, 2013

    by Jeremy Leaming

    While the Obama administration has done much to diversify the federal bench, Senate Republicans have so far successfully kept one of the nation’s most important appellate courts free of any diversity. The U.S. Court of Appeals for the District of Columbia Circuit rules on significant and often complex matters, including national security concerns; but it also rules on matters that are of great concern to corporate America.

    Since the Republican Party is the primary coddler of the super wealthy, it’s hardly surprising that its leaders in the Senate are working feverishly to ensure that President Obama has little if any opportunity to change the ideological makeup of the D.C. Circuit. The graphic (right) produced by People For The American Way is a compelling and accessible picture of the matter. (Senate Judiciary Committee Ranking Member Chuck Grassley is also pushing legislation that would cut the number of judges on the bench; he claims the D.C. Circuit has enough judges and a light caseload. For the truth, read retired D.C. Circuit Chief Judge Patricia Wald’s piece for The Washington Post.)  

    For many years now, the D.C. Circuit has been controlled by conservative judges. There are four vacancies on the bench and Senate Republicans have successfully blocked the president from filling them. As Miranda notes in a PFAW blog post, because of Senate obstructionism Obama is the “first president since Woodrow Wilson to serve a full first term without placing a judge on the D.C. Circuit.”

    An opinion yesterday by a three-judge panel of the D.C. Circuit provides yet another example of the Court’s pro-business tilt. It knocked down a rule by the National Labor Relations Board (NLRB) requiring employers to post notices about the rights of workers, such as joining a union or advocating for safer working conditions. In a post for AFL-CIO NOW, Mike Hall calls the NLRB rule “commonsense and evenhanded,” noting that such notices also inform workers that they do not have to join a union. But the D.C. Circuit found a way to side with corporations that aren’t especially eager to inform workers of their rights pursuant to the National Labor Relations Act.

    That opinion follows one from earlier in the year, Canning v. NLRB, where the D.C. Circuit invalidated the president’s appointments to the five-member NLRB. That opinion has been appealed by the Obama administration. In short, the three-judge panel of the D.C. Circuit essentially redefined what a recess appointment is, one that differs greatly from practice and federal court precedent. (See Sec. 2 of Article II of the U.S. Constitution.)

    The D.C. Circuit has also proven hostile to environmental regulations that are often challenged by corporations. In a post for grist, the Constitutional Accountability Center’s Simon Lazarus and Doug Kendall say the D.C. Circuit, on “any given day … has the power to throw the environmental movement into complete disarray.” (They could have added to the great delight of many corporations or the Koch brothers.)