Two Interesting Things About the Chesapeake Bay TMDL Decision
In a blog post yesterday, Todd Aagaard provided a quick summary of yesterday’s Third Circuit decision rejecting the Farm Bureau Federation’s challenge to the Chesapeake Bay TMDL. This is an interesting and important case, and it will take a while to digest. But just based on a preliminary read, a few issues seem particularly interesting and important.
What does TMDL mean? The Third Circuit interpreted section 303(d) in a way that seems to afford EPA—and the states—discretion in determining the content of TMDLs. The Farm Bureau’s core argument was that a TMDL should only specify a daily mass of allowable pollutants, and that anything else—for example, a division of that mass into load and wasteload allocations, or into further subdivisions—exceeded the authority granted under the Clean Water Act. The Third Circuit rejected that argument, instead concluding that “’total maximum daily load’ is a term of art meant to be fleshed out by regulation, and certainly something more than a number.”
The importance of that conclusion could go beyond this case. In some TMDLs, EPA or the states have done quite a lot of fleshing out, sometimes using TMDLs to set budgets for …
The Supreme Court’s decision on June 26 recognizing same-sex couples’ fundamental right to marry is a significant, albeit long overdue, civil rights victory for the LGBT community and for our nation. You don’t have to look any further than the long list of benefits available only to married couples to see how denying same-sex couples the right to marry or refusing to recognize their marriage performed in another state is discriminatory. Fortunately, the Court’s ruling means same-sex spouses will now become eligible for these benefits no matter where they reside.
Given that many of these benefits relate to employment, this is a huge step forward for LGBT workers’ economic rights. The significance of this is well stated in AFL-CIO’s amicus brief to the Court explaining the economic impact that the denial of employment benefits has on same-sex couples:
“State laws that deny the …
The following post is based on an article by Professor Glicksman on the George Washington Law Review website.1
In Michigan v. Environmental Protection Agency,2 Justice Scalia, for a 5-4 majority, held that the Environmental Protection Agency (EPA)’s failure to consider cost at the initial stage of deciding whether to regulate emissions of hazardous air pollutants from electric generating units (EGUs or power plants) under § 112 of the Clean Air Act (CAA), even though it gave ample consideration to cost at multiple subsequent stages of the rulemaking, was unreasonable. The provision that EPA improperly interpreted is narrow in scope, applying only to EGUs. The decision remanding the case to the D.C. Circuit is unlikely to significantly affect EPA’s effort to regulate EGUs under § 112, unless the delay in the onset of regulation on remand stretches into a presidential administration that views this …
The Third Circuit’s decision today is a tremendous victory for the elusive goal of restoring the Chesapeake Bay to the point that it is ecologically healthy. As the Third Circuit made clear, the Farm Bureau’s relentless and self-serving opposition to EPA’s leadership in this area misreads the law. Strong federal pollution controls are the last hope for the largest estuary in the world and for the millions of people who trek to its shores to enjoy its amazing beauty. The decision gives EPA the whip hand in organizing the efforts of recalcitrant states, special interests like the Farm Bureau, and environmental officials at all levels of government who have the expertise and the wisdom to rescue the Bay. With EPA’s leadership secured, the Bay’s health is headed in the right direction—toward a reinvigorated ecosystem no longer choked by dead zones and …
Today’s BP settlement is great news for the Gulf Coast economy, which still suffers mightily from the damage BP and its contractors caused. The President and his Department of Justice deserve credit for hammering out this deal, and keeping their focus on the victims of what the President rightly calls the "worst environmental disaster America has ever faced."
If the settlement is to have the impact on the region that we all hope it will, we’ll need to be sure that the money is well spent, not siphoned off for political favors or otherwise misused.
It’s important to remember that this money will flow to the region, and not simply into federal coffers, as a result of a hard-won battle to pass the RESTORE Act. That law is applicable only to this spill, so were another catastrophe of this sort to occur, God forbid …
Editors’ Note: This is the sixth in a series of posts on measuring progress toward the 2017 interim goal of the Bay TMDL. The first five posts cover the region as a whole, and then Maryland, Pennsylvania, New York, and Virginia, Future posts will explore the progress of the two remaining jurisdictions.
Like New York, the State of West Virginia can seem a bit distant from the Chesapeake Bay and the process of implementing the Bay Total Maximum Daily Load (Bay TMDL). But, even though most of the state’s waterways drain into the Ohio River rather than to the Bay, some of the fastest growing counties in West Virginia are those surrounding the Potomac headwaters, and a short drive to the Bay itself. West Virginia has experienced at least some success to date in reducing nutrient and sediment pollution under the Bay TMDL, but recent information …
Yesterday, the Supreme Court in Michigan v. EPA threw out EPA’s regulations protecting the American public from mercury and other hazardous emissions of power plants.
In another instance of judicial activism by the Roberts court, the majority refused to defer to EPA’s decision to ignore costs in deciding whether to regulate power plant emissions.
The decision turned on the meaning of the word “appropriate” in a section of the Clean Air Act that addressed hazardous air pollutant (HAP) emissions from fossil fuel-fired power plants. Before EPA subjected HAPs emissions from power plants to stringent technology-based regulations, it had to decide whether regulating those emissions was “appropriate and necessary,” given the other controls that the statute imposed on power plants to reduce acid rain.
If EPA made the “appropriate and necessary” finding, the statute required EPA to subdivide power plants into various categories and promulgate emissions …
In Michigan v. EPA, the Supreme Court reviewed the Environmental Protection Agency's decision to regulate power plants under section 112 of the Clean Air Act. Section 112 is the provision regulating toxic air pollutants, such as mercury. The question before the Court was whether EPA reasonably interpreted the Clean Air Act to allow EPA to decline to consider costs in deciding whether to regulate power plants under section 112. The Court held that it was not reasonable to interpret the Act in this way. Thus, from the Court's decision, we know that EPA must consider costs in deciding whether to regulate power plants under section 112. There are, however, important questions that remain:
1. We do not yet know what happens to EPA's rule while EPA does the analytical work the Court has required of it. The Supreme Court reversed the judgment of the …
President Obama’s approval rating is up to 50 percent for the first time in two years after a stellar period of national reconciliation and the safeguarding of Obamacare, his signature, and truly momentous, achievement. The president, in fulfillment of his noble promises to help the middle class, is about to put his weight behind a Labor Department rule that would hike minimum earnings needed to earn overtime pay, a proposal that would affected 5 million Americans. These accomplishments remind people why they voted for him in the first instance and returned him to office by a very comfortable margin.
But for those of us who believe that people should be able to go to work without getting sick or dying, a remarkable series of stories by the Center for Public Integrity can only strengthen the despair that has been building slowly since the president took office …
Today the Supreme Court blocked a key effort by the Obama administration to keep unsafe levels of mercury and other toxins from spilling into our air. The ruling, issued in Michigan vs. EPA, is a loss for the EPA and public health advocates. But the damage can be contained and will hopefully not prevent the agency from re-issuing its so-called Mercury Rule under a rationale that can satisfy the Court’s newly divined decision-making standards.
At issue was whether the Clean Air Act required the EPA to consider costs to industry when it made the decision to regulate mercury, a known neurotoxin. Because the Act does not mention cost considerations at this early stage of rulemaking, the EPA reasoned such review was unnecessary. At any rate, the EPA had explicitly considered costs in the second stage of analysis when it chose the actual numeric pollution limit. And …
