Environmental protection

  • October 12, 2012
    Guest Post

    By William Andreen, Clarkson Professor of Law, University of Alabama School of Law, Member Scholar, Center for Progressive Reform

    On October 18, the nation will celebrate the 40th anniversary of the Clean Water Act. This landmark piece of legislation has proven remarkably successful. Water pollution discharges from both industry and municipal sewer systems have declined sharply, the loss of wetlands has been cut decisively, and water quality has broadly improved across the country. The Clean Water Act is, in short, a real success story.  It stands as a tribute to the foresight of those in Congress who passed it, as well as to the men and women in both state and federal regulatory agencies who have worked so hard, and for so long, to restore the integrity of our nation’s waters.

    The Act, however, is showing its age. Twenty-five years have passed since it was last amended in comprehensive fashion, and more than a little fine-tuning is necessary to finish the task that began in 1972. The most significant problem involves nonpoint source pollution – the indirect discharge of polluted runoff from fields and roads, clear cuts, and parking lots.  The Act never addressed nonpoint source pollution in a straightforward way.  Instead, it was treated as something of an afterthought left primarily in the hands of state and local government, and they have primarily relied upon voluntary management practices to control polluted runoff.  As a result, nonpoint source pollution has evolved into the largest single source of water quality impairment in the country. These diffuse sources of water pollution are, furthermore, much more diverse than we once thought.  In addition to obvious sources such as polluted runoff from agriculture, urban areas, logging operations, and mines, nonpoint source pollution also includes cross-media transfers, including the deposition of air pollutants such as mercury and nitrogen, into our waters.

  • July 10, 2012
    Guest Post

    By Michael B. Gerrard, Andrew Sabin Professor of Professional Practice, director of the Center for Climate Change Law at Columbia Law School, and associate chair of the faculty of the Earth Institute. This is a cross-post from State of the Planet, a blog of the Earth Institute.  

    Though most attention last month focused on the Supreme Court ruling upholding federal reform of the health-care system, the U.S. Court of Appeals for the District of Columbia issued the most important judicial decision on climate change in five years. That decision upholds the Environmental Protection Agency’s power to regulate greenhouse gases, and it is very good news for those who favor this approach.

    In 2007 the U.S. Supreme Court ruled, in the landmark case of Massachusetts v. Environmental Protection Agency, that a statute enacted by Congress in 1970 — the Clean Air Act — authorizes EPA to regulate greenhouse gases, including carbon dioxide. Not much happened for the balance of the Bush administration, but shortly after Barack Obama took office in January 2009, EPA issued an “endangerment finding” — a formal determination that greenhouse gases pose a danger to public health and welfare. That finding is a prerequisite to further regulation.

    With that in hand, EPA proceeded to issue a set of major new rules. Among other things, it and the National Highway Traffic Safety Administration issued new standards (the first in decades) for fuel economy of automobiles and light trucks. EPA also required major stationary sources of air pollution, such as power plants and factories, to obtain permits for their greenhouse-gas emissions.

    Industries (led by the fossil fuel lobby) and states (led by Texas) that oppose such regulation reacted furiously. They filed more than 100 lawsuits against EPA. Some claimed that the “Climategate” e-mails and a handful of errors in reports of the Intergovernmental Panel on Climate Change had cast doubt on the integrity of the climate science underlying the endangerment finding. They also took an opposite tack, and said EPA’s regulations of stationary sources were too lax, because they regulated only the largest sources and not the millions of small sources that exceed certain statutory thresholds.

  • July 6, 2012
    Guest Post

    By Glenn Sugameli, Staff Attorney, Defenders of Wildlife's Judging the Environment. (Sugameli founded in 2001 and still heads the environmental community's Judging the Environment project and website on federal judicial nominations and related issues.)

     As the Austin American-Statesman’s editorial board commented in "Greenhouse gas ruling timely, right":

    Overshadowed last week by U.S. Supreme Court rulings on health care and immigration, but just as significant in its own right, was the unanimous decision by a three-judge panel of the U.S. Court of Appeals in Washington, D.C., affirming federal regulations of greenhouse gases. The three judges — one a Ronald Reagan appointee … said the Environmental Protection Agency was "unambiguously correct" to set rules to reduce greenhouse gas emissions, given global warming's potential harm to the public's health.

    The Salt Lake Tribune’s editorial, "Another health case; Appeals court rightly stands by EPA," agreed: "While most of the country was waiting for a court ruling that would affect how many Americans insure their health care, another court was handing down an order that will go a long way to ensure the health of the entire planet."

    This importance of the issues in Coalition for Responsible Regulation v. Environmental Protection Agency is augmented by synergistic factors. These include: (1) the court that decided them; (2) the judges who joined the unsigned per curiam opinion; (3) the high likelihood that their ruling is the final judicial word; (4) the very strong language the judges used; and (5) the decision’s impact in confirming the scientific facts of climate change.

  • April 17, 2012

    by Joseph Jerome

    When an undercover investigation by the Humane Society last week revealed “extreme animal abuse” and deplorable conditions at a massive Pennsylvania egg factory, Iowa lawmakers assuredly breathed a giant sigh of relief. Recently Iowa became the first in the nation to enact an “ag-gag” law designed to prevent and criminalize similar undercover investigations at industrial farms.

    The original version of the law introduced last year was draconian in scope, making it a crime to take or even to possess pictures from industrial farms taken without the owner’s consent. In the face of obvious First Amendment concerns that banning pictures of abused farm animals would be unconstitutional, the final law only criminalizes false statements used to obtain employment at these farms or, more ominously, attacks anyone “with an intent to commit an act not authorized by the owner.” 

    Despite the recent use of undercover reporting to reveal real problems at Iowa farms, the law’s proponents provided a litany of justifications for the law. Governor Terry Branstad (pictured) insisted that undercover films had become a serious problem and claimed H.F. 589 was necessary to protect farmers.

    Annette Sweeney, a member of the Iowa House of Representatives and a key sponsor of the legislation, argued that the law protects family farms from political motivated crime. Though the law’s only provisions detail penalties for “agricultural production facility fraud,” Sweeney actually believes the law encourages individuals to immediately report abusive farming practices.  “No person would be stopped from reporting alleged abuse,” she wrote in The Des Moines Register. “Rather, only those who have no respect for Iowa laws would be prevented from endangering animals and people in the creation of propaganda designed to support an extremist agenda.”

  • March 23, 2012
    Guest Post

    By Sara Rosenbaum, Harold and Jane Hirsh Professor, Health Law and Policy, George Washington University School of Public Health and Health Services. This post is part of an ACSblog online symposium around oral arguments on the Affordable Care Act. 

    When the curtain rises on the Affordable Care Act arguments before the United States Supreme Court, the nation will be fully engaged in what is perhaps the most important legal examination in generations regarding Congress’s constitutional powers to tackle issues of unsurpassed social and economic concern. Although Chief Justice Roberts has likened the role of the courts to that of an umpire in a baseball game, one can hope that the Justices will view the case for its broader significance for the health care system as a whole, as well as for the 32 million children and adults whose access to health insurance rests great measure in their hands. A declaration that the Act is unconstitutional will not merely nullify its provisions. Under federal budgeting principles, it will effectively roll the federal health reform spending baseline back to zero. The likelihood that Congress will, anytime soon, find the $1.5 trillion needed to make coverage affordable for nearly all Americans is slim to nil, something that the Act’s opponents frankly are banking on.

    It was perhaps inevitable that health care would be the issue to trigger a full-throated debate over the constitutional relationship between the federal government and American society. The signature domestic policy achievement of the Obama Administration, the Act stands as a testament to lawmakers’ ability to devise national solutions that simultaneously weave a wide array of existing laws – Medicaid for the poorest Americans, tax subsidies for low and moderate income individuals and families, and federal laws that regulate the behavior of insurers in the marketplace – into a complex legislative intervention of universal scope and impact.