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Home > Blog > All > Environmental protection

Environmental protection

  • September 3, 2010

    Report Finds Government Still Ill-Prepared to Handle Katrina Type Catastrophe

    Five years after Hurricane Katrina wreaked havoc on New Orleans and exposed a shockingly wobbly government response to the disaster, a report from the Institute for Southern Studies says the government is still unprepared to handle a similar disaster.

    The report, "Learning from Katrina: Lessons from Five years of Recovery and Renewal in the Gulf Coast," maintains that "many of the problems exposed in the botched federal response to the storm - from breakdowns in disaster planning to a misguided and mismanaged recovery - have yet to be addressed in Washington," writes Chris Kromm, a co-author of the report, for the Institute's online magazine.

    The study notes that Federal Emergency Management Agency (FEMA), which was widely criticized for its action in the Gulf, "is just now releasing its new disaster framework - and it still omits internationally recognized standards for protecting storm victims."

    The full report is available here (pdf).

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    Tags:
    Environmental protection, Economic, Workplace and Environment Regulation, FEMA, Hurricane Katrina, Institute for Southern Studies
  • July 1, 2010

    Finding Ways to Hold Corporations Like BP Accountable

    Still struggling to cap the gushing deepwater well in the Gulf, BP's counsel is likely busy preparing to battle potential litigation over the corporation's involvement in the disaster despoiling the Gulf waters, destroying livelihoods and wildlife.

    Law professors Gregg Polsky and Dan Markel, in an op-ed for The New York Times, write that it is time for juries to become aware that punitive damages leveled at corporations like BP are tax-deductible.

    Polsky, a law professor at the University of North Carolina Chapel Hill, and Markel, a law professor at Florida State University, write:

    BP might soon be added to the list of payers of punitive damages for its role in the Gulf oil spill. Perhaps with that in mind, the Senate recently approved a measure to repeal deductibility for punitive damages.

    The measure is well intentioned. But because most cases are settled before they reach a jury, it won't work. Fortunately, there's a better approach.

    It may not entirely curb the ability of large corporations to limit the impact of punitive damages, but the professors say that tax-aware "juries would probably award higher punitive damages to offset the fact that punitive damages were tax-deductible. But more important, the prospect of tax-aware jurors would also raise the amounts before trial - when, again, most cases are actually resolved. This is because the amount of a settlement depends on the amount that a jury is expected to award after a trial. If tax-aware juries became the norm, plaintiffs would push for higher settlements, and thus both settling and non-settling defendants would bear the correct amount of punishment."

    See their entire op-ed here.

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    Tags:
    Environmental protection, Economic, Workplace and Environment Regulation, BP, Envrionmental Regulation, Gulf of Mexico
  • June 25, 2010

    Another Look at High Court’s Fla. Beach Erosion and Takings Case: More Signs of Judicial Overreach

    Guest Post
    By Ed Roggenkamp, environmental law fellow, Environmental Law and Policy Center
    These days, most news about the Gulf Coast begins and ends with the BP blowout. Pictures of oiled wildlife, orange marsh grass, and tar balls on white sand beaches have dominated coverage. The city of Destin, in the Florida panhandle, has set up its own Web site to assure residents and tourists that its beaches are open, and a local real estate developer has done the same.

    But some residents of Destin have spent the last several years fighting to keep some of Destin's beaches closed. These homeowners bought beachfront property that was later damaged by Hurricane Opal. The city of Destin asked the state, under the 1961 Beach and Shore Preservation Act, for permission to restore the damaged beaches, and the state said yes.

    That's where the homeowners came in. Their problem was that the seventy-five feet of sand added to the beach would be owned by the state, and, under a longstanding interpretation of Florida law, would be open to the public. The homeowners, thinking that they had bought houses with private beaches and that their property values would drop if the beaches could be accessed by anyone, fought the restoration. First, they challenged the beach restoration permits. When that failed, they appealed to the courts, arguing that the restoration took their property without just compensation.

    That's right; the homeowners argued that restoring their beaches actually took property away from them. What property, one might ask? Two little-known common law rights that amounted to a right to have their property touch the water. Since these rights were taken away, the homeowners argued, the state owed them just compensation. The Florida Supreme Court ruled against them, but a scathing dissent argued that the opinion contradicted several Florida precedents and that the homeowners had to be compensated.

    Ordinarily, that would have been the end of the matter, since state supreme courts have the final say on matters of state law. Enter the homeowners' argument on federal grounds: that the Florida Supreme Court's ruling was such a drastic departure from previous cases that it amounted to a "judicial taking" that violated the Fifth Amendment.

    There argument failed recently before the U.S. Supreme Court. All eight justices (Justice Stevens recused himself, since he owns beachfront property in Florida) agreed in Stop the Beach Renourishment, Inc. v. Florida Dept. of Environmental Protection (pdf), that the Florida Supreme Court correctly interpreted the common law and that there was no taking. But Justice Scalia, writing for himself, Chief Justice Roberts, and Justices Alito and Thomas, went further, attempting to set out a new doctrine of judicial takings.

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    Tags:
    Environmental protection, Supreme Court, Constitutional Interpretation and Change, Economic, Workplace and Environment Regulation, Ed Roggenkamp, Guest Post, Stop the Beach Renourishment v. Florida, Takings Clause
  • June 17, 2010

    Supreme Court Issues Opinions in Labor Relations Board Case, Fla. Environmental-Property Dispute

    Among the Supreme Court's string of opinions issued this morning were two closely watched cases involving the power of the National Labor Relations Board and another centering on a dispute between Florida homeowners and state officials seeking to enforce an environmental protection law.

    In New Process Steel v. NLRB, the high court ruled 5-4 that the NLRB, which hears disputes between employers and managers, must maintain 3 members of the five-member board in order to render decisions. For years the NLRB has functioned with only two members due to political fights over nominees to the Board. The opinion is available here (pdf). During a recent ACS event about the National Labor Relations Act (NLRA) and the NLRB, panelists discussed the legacy of the act, which was created to protect the rights of workers and encourage collective bargaining. That discussion featured a keynote address by Deputy Secretary of Labor, Seth Harris, followed by a panel discussion of scholars and former NLRB members. Video of the event and ACSblog interviews with two of the panelists is available here.

    In an 8-0 opinion, with Justice John Paul Stevens not taking part, the justices ruled that Florida officials did not violate the Constitution with a beach-widening project that altered the property of beachfront homeowners. The homeowners argued that the project, which was launched to counter erosion, amounted to a taking of property without just compensation in violation of the Constitution, The Associated Press reported. The opinion in Stop the Beach v. Florida Department of Environmental Protection is here (pdf). For more information and analysis of the other decisions issued today see SCOTUSblog here.

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    Tags:
    Environmental protection, Supreme Court, Labor law, Economic, Workplace and Environment Regulation, New Process Steel v. NLRB, Stop the Beach v. Florida Department of Environmental Protection
  • June 15, 2010

    Studying the Coast Guard’s Ability to Shoulder Increasing Duties

    The U.S. Coast Guard's ability to provide security to the nation and respond to environmental disasters, such as the one that has unfolded in the Gulf of Mexico, is stretched by competing demands, for which lawmakers should respond, according to a recent report from the Center for American Progress.

    In "Building a U.S. Coast Guard for the 21st Century," Lawrence J. Korb, Sean Duggan and Laura Conley note, "Coast Guard personnel and assets are conducting counterpiracy missions in the Gulf of Arden, protecting Iraqi petroleum pipelines and shipping lanes in the Persian Gulf, and shouldering the load in the government's response efforts to the massive Deepwater Horizon oil spill off the coast of Louisiana, the largest oil spill in the nation's history." (Indeed Adm. Thad W. Allen, pictured, of the Coast Guard is the national commander for the spill that has stretched far beyond the coast of Louisiana.)

    The Center for American Progress's report states that "if the Obama administration and Congress expect the Coast Guard to maintain its current level of operations effectively, they must begin providing the service with the commensurate leadership and resources necessary to transform and modernize the service. Failure to correct the current imbalance between responsibilities and capabilities will further erode the service's already dwindling ability to carry out its statutory missions, and deny it the ability to protect this nation against 21st century challenges."

    The report, available here (pdf), lists five sets of "challenges" that must be met to not only bolster the nation's defense, but Coast Guard operations.

    In a 2007 ACS Issue Brief, then Stanford Law School professor Mariano-Florentino (Tino) Cuéllar wrote about the reorganization that took place with the creation of the Department of Homeland Security (DHS), which included moving the U.S. Coast Guard into its bureaucracy. Cuéllar wrote that the Coast Guard has "endeavored to safeguard living marine resources, prevent over-fishing, stop toxic spills degrading the environment, and ensure the safety of Americans who work or travel on oceangoing vessels." But with its conversion to DHS the Coast Guard began to take on other duties. "Under pressure from budget reallocations, new missions, and bureaucratic reorganization, the bureau faces constraints on its regulatory functions - a development foreseen by a bipartisan group of legislators who unsuccessfully sought to protect the Coast Guard's environmental and safety functions by keeping it out of DHS." He continued, "The changes rippling through the Coast Guard even raise the larger question of how pollution control, wildlife protection, accident reduction, and other American regulatory priorities are being affected by the burgeoning focus on homeland security."

    Cuéllar's Issue Brief, "Running Aground: The Hidden Environmental and Regulatory Implications of Homeland Security," is available here (pdf).

    Cuéllar, Special Assistant to the President for Justice and Regulatory Policy, White House Domestic Policy Council, is scheduled to participate in the first plenary panel, "Regulation in the Age of Obama," at the 2010 ACS National Convention, June 17-19. For the Convention's schedule and to register, visit here.

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    Tags:
    Environmental protection, Economic, Workplace and Environment Regulation, Center for American Progress, Environmental Regulation, Mariano-Florentino Cuellar, U.S. Coast Guard
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