Environmental protection

  • December 10, 2012
    Guest Post

    by Rena Steinzor, Professor of Law, University of Maryland, Francis King Carey School of Law; Steinzor is also president of the Center for Progressive Reform (CPR).

    After the last of the applause lines has been delivered, and while the crowd that gathered for his historic second inauguration is still filing out of town, President Obama will once again sit at his desk in the Oval Office and begin the tough policy work that will define his second term in office and shape the legacy he will leave behind.

    Among the many challenges he'll face over the next four years will be an urgent agenda of addressing critical threats to public health, safety, and the environment that the Administration let languish during the first term. But good luck to him if he decides to attack the problems with legislation. The election made the numbers in both chambers of Congress somewhat more favorable to the President's cause. But it'd take an earth-shattering event or at least another election to get protective legislation out of the House of Representatives, which vacillates between being sullen and defiant and will undoubtedly return to its anti-regulatory drum-beating as soon as the fiscal “crisis” is over.

    So what's a President to do? Use every bit of executive power he can marshal, in this case, by directing the regulatory agencies to move with dispatch to regulate and enforce in a number of vital areas. In Protecting People and the Environment by the Stroke of a Presidential Pen: Seven New Executive Orders for President Obama’s Second Term, released today, my colleagues and I at the Center for Progressive Reform explain how the President can take the first vital step by making full use of his authority to manage executive agencies -- including the Environmental Protection Agency, the Food and Drug Administration and the Occupational Safety and Health Administration -- by issuing a series of Executive Orders.

  • October 15, 2012

    By E. Sebastian Arduengo

    One of the country’s most significant federal appeals courts has morphed into a hotbed of activist judges striking longstanding federal regulations, says columnist Steven Pearlstein. And at a time when some corporations claim they are hesitant to hire because of regulatory uncertainty.

    (The U.S. Court of Appeals for the District of Columbia Circuit  is so important because it has the responsibility of reviewing most of the rules and interpretative decisions made by federal agencies in the capital. It has also been seen as the U.S. Supreme Court’s farm team, as Chief Justice Roberts and Justices Scalia, Thomas, and Ginsburg are all former D.C. circuit judges.)

    For example, The Washington Post columnist Pearlstein notes that just before Labor day, Judge Brett Kavanaugh, an appointee of President George W. Bush and possible Supreme Court contender under a Republican administration, issued a ruling in Homer City Generation v. EPA. The case involved the Cross-State Air Pollution Rule, where the EPA was trying to regulate the amount of pollution states could dump on other, “downwind” states. As Pearlstein puts it, from Kavanaugh’s decision, “You’d have no idea that hundreds of dedicated, highly trained scientists, analysts and statisticians at the EPA might have spent more than a decade devoted to the extremely complex task of figuring out how much of the ozone or sulfur dioxide in the air in Rhode Island originated in Indiana.”

  • 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.