William W. Buzbee, Professor of Law, Georgetown University Law Center, offers his comments here regarding the May 27, 2015 released final rule and accompanying materials regarding what waters are federally protected “waters of the United States.”  Professor Buzbee is also a founding member-scholar of the Center for Progressive Reform.  He has testified repeatedly before congressional committees about these issues and in 2006 served as co-counsel for an unprecedented bipartisan amicus brief of former US EPA Administrators filed with the Supreme Court.  Wwb11@law.georgetown.edu.  Office phone (202) 661-6536.

The United States Environmental Protection Agency and the Army Corps of Engineers on May 27, 2015 released their much awaited and debated final rule articulating what are federally protected jurisdictional “waters of the United States.”  Before anyone outside the executive branch could have possibly read the 700 plus pages of legal analysis in the new “Waters Rule” (also …

This morning CPR Scholar and George Washington University Law School professor Emily Hammond will testify at a House Energy and Commerce Subcommittee on Energy and Power entitled, "Quadrennial Energy Review."

According to Professor Hammond's testimony:

A critical challenge for energy policy in the United States is that it has evolved in a piecemeal fashion, focusing on specific energy resources through source-specific federal and state agencies. Creating an Interagency Task Force, as this Section does, is an important step in bridging the gaps between the enumerated agencies’ particular statutory mandates. Indeed, agencies stand to be more successful—in achieving stakeholder support and in avoiding litigation—when they coordinate their efforts and ensure that their diverse perspectives are brought to bear on major policy matters.

But the composition of the Task Force has significant gaps that will hinder—not help— the development of comprehensive energy policy. Most critical …

In April, the Chesapeake Bay Program – a federal-state partnership dedicated to restoring the Bay – unveiled data tracking nutrient and sediment reductions since 2009, the year when the seven Bay watershed jurisdictions committed to new multiyear “milestone” goals in preparation to comply with the impending Chesapeake Bay Total Maximum Daily Load (TMDL).  With two years remaining until the midpoint assessment for the Bay TMDL, the data show mixed results. 

Before delving in to those results, it is important to note that there are several ways of measuring progress toward compliance with the Bay TMDL.  One must consider (1) the actions and resources committed by state and local governments and other regulated entities; (2) the Bay Program model’s estimated reductions generated by these actions and resources; and (3) the actual improvements in water quality measured through sampling.  While this last measure of progress is ultimately the most important …

A new report by the Government Accountability Office (GAO) concludes that contingent workers earn lower pay, receive fewer benefits, have less job security, and may be at greater risk of on-the-job injuries compared to standard employees. 

While there is no official definition of “contingent workers,” according to GAO, labor experts generally agree that it includes workers with variable schedules and without job security, such as temporary workers, day laborers, and on-call workers.  Although some in the labor movement would define contingent workers more broadly to include self-employed individuals, independent contractors, and part-time employees, GAO chose to base its findings on the narrower group, which it describes as the “core contingent workforce.” 

GAO found that, in 2010, core contingent workers made up 7.9 percent of all employed workers.  Applying the broadest definition, GAO’s estimate grew to 40.4 percent.  Regardless of the definition applied, when compared …

OSHA has finally promulgated a Confined Spaces in Construction rule.  The agency waited 25 years after it had issued an Advanced Notice of Proposed Rulemaking (ANPR) to issue a rule.   Administrative law academics have been concerned for some time about the ossification of rulemaking due to a set of regulatory hurdles imposed by regulatory opponents. Proponents say these hurdles are necessary to ensure the accuracy and reasonableness of regulations, but they also deny workers and others of regulatory protection for years and years — a quarter century in this case.  In short, perfection has become the enemy of the good, a pattern that has real consequences for the workers who depend on OSHA to issue rules in a timely way.

A history of tying up rules to protect construction workers in confined spaces has plagued the agency for decades.  For example, in March 1980, OSHA issued an ANPR …

Unless you’re living under a rock or are a FIFA executive official being indicted for criminal conspiracy, you’ve no doubt heard by now that the Environmental Protection Agency (EPA) has at long last released its final rule establishing a clear regulatory definition that, consistent with both the previous court decisions and the best available science, delineates which water systems are covered by the Clean Water Act.  The rule was included in a recent CPR Issue Alert, highlighting 13 essential regulatory actions that the Obama Administration should commit to completing during its remaining time in office.

The rule would seem to provide everything that conservative opponents of regulation would want: regulatory certainty and efficient use of agency funds (i.e., by preventing the EPA from having to undertake wasteful case-by-case analyses of which water bodies warrant federal protection).  Yet, it has been a lightning rod of …

Cross-posted with ACSBlog.

The Wall Street Journal recently devoted nearly two pages of its Saturday Review section to an editorial by Charles Murray of the American Enterprise Institute urging American corporations to violate laws that they deem to be “pointless, stupid or tyrannical” as acts of civil disobedience.  The article, which is a capsule summary of his recently published book titled By the People: Rebuilding Liberty Without Permission,” betrays a profound misunderstanding of the concept of civil disobedience and a deplorable contempt for the laws that Congress and state legislatures have enacted to protect their citizens from corporate malfeasance.

This is, of course, the same Charles Murray who has made millions of dollars writing poorly documented books like The Bell Curve and Losing Ground, which were designed to allow conservative politicians to feel good about reducing welfare for the poor, limiting immigration from Latin America, and eliminating …

Perhaps as soon as this week, according to media reports, the Army Corps of Engineers and EPA will release a final "Waters of the United States" rule clarifying the scope of federal regulatory jurisdiction under the Clean Water Act.  Simultaneously, Congress is considering multiple bills that would block the new rule and undo portions of the Clean Water Act.  There are many reasons for the opposition, but one key argument is grounded in federalism.  According to the Wyoming Senator John Barrasso, chief author of the Senate bill (as quoted in Saturday’s New York Times):

"This rule is not designed to protect the traditional waters of the United States.  It is designed to expand the power of Washington bureaucrats."

This is a familiar refrain.  Politicians say similar things to oppose all sorts of governmental initiatives, ranging from the Common Core educational standards to the Affordable Care Act …

This past Sunday, the Houston Chronicle published an opinion piece by CPR Scholar and University of Maryland Carey School of Law professor Rena Steinzor entitled, "With Dupont, OSHA's Tough Talk Falls Faint."

Steinzor recounts the chemical giant's negligence and reckless disregard for safety which ultimately led to the deaths of workers Gilbert and Robert Tisnado, Wade Baker and Crystle Wise.

She takes OSHA to account for the small penalties the agency levied against Dupont and notes, "Despite ample evidence that gross and reckless neglect of fundamental safety protocols caused the tragedy, OSHA could only muster alleged violations totaling $99,000 in civil penalties, an amount that DuPont could pay out of petty cash. Penalties this small relative to a company's size and revenues do not deter future misconduct by DuPont or its competitors. Instead, they are written off as a mere cost of doing …