March 2011

  • March 18, 2011
    Guest Post

    By Robert Adler. Mr. Adler is the James I. Farr Chair and Professor of Law, University of Utah, S.J. Quinney College of Law, Member Scholar, Center for Progressive Reform (CPR). This article is cross-posted at CPRBlog.

    A decision issued on March 15 by a panel of the U.S. Court of Appeals for the Fifth Circuit vacated portions of EPA's Clean Water Act (CWA) regulations, issued most recently in 2008, governing water pollution from concentrated animal feeding operations, or "CAFOs." In National Pork Producers Council, et al. v. United States Environmental Protection Agency, the Fifth Circuit panel vacated those portions of EPA's rule that required CAFOs to apply for National Pollutant Discharge Elimination System (NPDES) permits based on a potential to discharge rather than an existing discharge, and that imposed liability for failure to apply for a permit. (The Court upheld other aspects of EPA's CAFO rule.) The Fifth Circuit ruling represents a particular setback for EPA's efforts to regulate CAFO pollution because it follows a 2005 decision by the Second Circuit (Waterkeeper Alliance, Inc. v. United States Environmental Protection Agency) that vacated portions of an earlier EPA CAFO rule and EPA's efforts to revise the rule in response to that decision.

    Water pollution from CAFOs poses serious health and environmental problems around the country. CAFOs are large industrial livestock operations in which thousands to hundreds of thousands of animals are raised in confined circumstances. CAFOs generate millions of tons of animal waste a year, which contain pollutants such as nutrients (nitrogen and phosphorus), organic matter, bacteria and other pathogens, salts, and pesticides and other potentially toxic pollutants. CAFOs are one of the many reasons why pollution from agricultural operations remains the largest single source of water pollution nationally -- a problem that EPA and the states have struggled to address for decades.

    The Fifth Circuit decision is based on a textual analysis of selected provisions of the Clean Water Act, but ignores or fails to account fully for other important provisions of the statutory text. Moreover, it results in a statutory tautology that belies one of the CWA's most important goals. Finally, I am not sure it is even in the best interests of the livestock industry -- although obviously their lawyers disagree -- because it eliminates the business certainty that environmental permits are supposed to provide, and subjects operators to significant potential administrative, civil and even criminal liability if discharges occur absent a permit.

  • March 18, 2011
    By unanimous votes, the Senate confirmed D.C. Superior Court Judge James "Jeb" Boasberg and litigator Amy Berman Jackson to the U.S. District Court for the District of Columbia, The Blog of Legal Times reports.

    Last month, the district court's chief judge, Royce Lamberth, criticized the delays in confirming people to that court, where there were three vacancies and the load of cases from Guantanamo Bay had severely delayed civil trials.

    As the National Women's Law Center's Amy Matsui points out in a blog post, the Senate adjourned yesterday evening until March 28, leaving nine nominees without a vote who have been approved by the Senate Judiciary Committee and sent to the Senate floor.

    "When they return, it sounds like a little March Madness may be in order - picking up the pace on confirming judges," Matsui writes.

    Also this week, the Senate Judiciary Committee has approved district court nominee Edward Chen by a vote of 10 to 8, sending his nomination to the full Senate for a vote.

    Chen, nominated to the Northern District of California, was one of four nominees explicitly excluded from confirmation deal discussions last session because of Republican opposition. Another of those nominees was UC Berkeley associate dean and law professor Goodwin Liu, who was held over by the committee during the same executive business meeting "at the request of Republicans," Main Justice reports.

    The committee held "friendly" hearings on three other district court nominees, including J. Paul Oetken, who would become the first openly gay male federal judge. No Republican senators were present for the hearing of Oetken and Paul Engelmeyer, both nominated to the Southern District of New York, and Ramona Manglona nominated to the District of the Northern Mariana Islands.

    Another openly gay federal court nominee, Edward C. DuMont, nominated to the U.S. Court of Appeals for the Federal Circuit, has not been scheduled for a hearing since he was nominated last April.


  • March 18, 2011
    A state judge has temporarily blocked Wis. Gov. Scott Walker's law intended to strip collective bargaining rights from public workers.

    Dane County Circuit Judge Maryann Sumi issued a temporary restraining order against the law saying that a lawsuit lodged against the law was likely to succeed, The Milwaukee Journal Sentinel reports. The lawsuit brought by Dane County District Attorney Ismael Ozanne charges that lawmakers violated the state's open meeting law in moving the law out of the legislature for Gov. Walker to sign.

    "It seems to me the public policy behind the effective enforcement of the open meeting law is so strong that it does outweigh the interest, at least at this time, which may exist in favor of sustaining the validity of the (collective bargaining) law," Sumi wrote. "We here in Wisconsin own our government ... We own it in the sense that we are entitled to free and open access to government meetings."

    The newspaper reports that the next hearing in the case is set for March 29. Talking Points Memo reports that Wisconsin Attorney General J.B. Van Hollen has announced that he would appeal Judge Sumi's order. In a statement about his plan, Van Hollen said, "No matter whether individual citizens agree with the substance of the bill or the manner in which it was enacted, I would hope all see the value in ensuring this matter be given the opportunity to work its way expeditiously through the judicial process."

    TPM notes that Van Hollen's stance on Sumi's action stands in sharp contrast to his take on U.S. District Judge Roger Vinson's opinion that the landmark health care law, the Affordable Care Act, is unconstitutional. After Vinson issued his opinion, Van Hollen said, "Judge Vinson declared the health care law void and stated in his decision that a declaratory judgment is the functional equivalent of an injunction. This means that, for Wisconsin, the federal health care law is dead -- unless and until it is revived by an appellate court." 

    Efforts to slash pay and bargaining rights of workers in Michigan and Ohio have also drawn protests and scrutiny from public interest groups.

  • March 17, 2011
    Guest Post

    By Sidney Shapiro, Associate Dean for Research and Development, University Distinguished Chair in Law, Wake Forest University School of Law. Shapiro is a member of the Board of Directors of the Center for Progressive Reform (CPR).
    It's been nearly a year since crude oil from deep beneath the Deepwater Horizon drilling rig, under lease to BP, began to surge into the Gulf of Mexico, in what would turn out to be the beginning of a three-month polluta-polluza. Rather like the unfolding nuclear disaster in Japan, the prospect of such an oil well blowout in the Gulf was regarded by industry and regulators as extremely unlikely. At least in the Gulf, that meant that planning for such a catastrophe was given low priority - too often a mere paper-pushing exercise. When the all-but-impossible turned out to be all too possible, it laid bare a string of failures that helped make the disaster happen, complicated clean-up, and now, 11 months later, is making it difficult for the victims and their surviving family members to recover damages from BP and its contractors.

    For the 126 workers on the Deepwater Horizon that night, the sounds and images of those failures must have been terrifying beyond imagining. Eleven of them didn't make it home alive, and another 17 were severely injured. The rest escaped in lifeboats or by jumping into oily seawater while a fire raged overhead. Nearly three months later, after an estimated 4.9 million barrels of oil had spewed into the Gulf of Mexico, the damage spanned hundreds of miles of shoreline and thousands of square miles in the Gulf. Clean-up efforts continue to this day, and will for some time, although oil along the bottom of the ocean is unreachable.

    The BP Oil Spill was not just a really unlucky break, as the oil industry would like us to think it was, but was the product of corner-cutting by industry, with the tacit approval of government. If the agency then called the Minerals Management Service (MMS) had been serious about its job of reviewing safety plans to make sure they would work, BP might never have gotten approval to drill. But that wasn't how MMS worked. It saw its role as helping to keep the oil flowing, not making sure that BP and the rest of the industry took their safety obligations seriously.

    There were other regulatory failures, as well, and a number of Member Scholars from the Center for Progressive Reform meticulously documented them in our October 2010 report, Regulatory Blowout: How Regulatory Failures Made the BP Disaster Possible, and How the System Can Be Fixed to Avoid a Recurrence. But there's another failure, an ongoing failure, at work in the Gulf as well, one that's making it harder for the victims of the BP Spill - the survivors, the relatives of those killed, businesses and employees who lost their livelihoods as a result of the damage, and others - to recover.

  • March 17, 2011
    In an effort to fight a new Michigan law that gives Gov. Rick Snyder sweeping powers to nullify union contracts and fire elected officials, Democratic leaders in the state are pushing a proposed state constitutional amendment to secure collective bargaining rights for public and private workers.

    Senate Minority Leader Gretchen Whitmer (pictured at a rally to protect rights of workers) told the Detroit Free Press that the proposed amendment is similar to ones in other states. In a March 17 press release announcing introduction of the amendment, Whitmer said the Michigan Constitution should guarantee the right of all workers to collectively bargain.

    State Sen. Bert Johnson, a supporter of the proposed amendment, said "Governor Snyder likes to talk about supporting the collective bargaining process, yet pushes through legislation that will strip away those rights from Michigan's workers one piece at a time. The thousands of workers that came to Lansing yesterday to voice their concerns deserve a clear answer from him on this issue.

    Daily Kos has coverage of the rally in Lansing that drew thousands, reporting that "UAW President Bob King told the huge crowd that all over the country we are seeing an unbelievable attack on democracy and that ‘nowhere is that more clear than what we are seeing in Michigan.'"

    Earlier this week, ACS Executive Director Caroline Fredrickson commented on the situations in Michigan and Wisconsin, saying the states are being led by lawmakers seemingly intent on undermining democracy in their states. Yesterday, The New York Times reported on Ohio Gov. John Kasich's budget plan that would also greatly diminish public sector jobs in that state.

    Mich. Sen. Whitmer said the proposed constitutional amendment is not "complex policy requiring weeks of review, it is one sentence that guarantees a fundamental right to our workers."