Antibiotics, Animals, and Agency Discretion
Cross-posted from Georgetown Law Faculty Blog.
When an agency defends over three decades of inaction on an important problem by saying that acting would take too long, one hopes a judge reviewing the agency's inaction will see through the pretense. This is exactly what happened this week, when a federal magistrate judge in New York ruled that the U.S. Food and Drug Administration had acted arbitrarily in citing time and resource constraints in declining to limit the use of antibiotics in animal feed.
Some 80 percent of the antibiotics used in the United States are given to animals destined to become part of our food supply. Most of these drugs are given not to sick but to healthy animals; they are used not to treat disease but to promote animal growth or to prevent bacterial infections from occurring. Both of these purposes are tied to the industrial nature of animal food production in this country. The economic imperatives of industrial food production reward faster animal growth, and the microbial realities of the modern animal food production facility -- in which animals are tightly confined in stressful, bacteria-rich (to put it nicely), infection-promoting conditions -- encourage herd-wide administration of antibiotics to …
The natural gas industry’s campaign against increased federal oversight of shale gas development has recently produced a spurt of “dirty science” minimizing the environmental risks of hydraulic fracturing, or “fracking.”
The University at Buffalo, the branch of the State University of New York where I teach, recently launched its new “Shale Resources and Society Institute” (SRSI) by issuing a report last month giving the “first quantitative data review of Pennsylvania’s regulation of hydraulic fracturing.” The report examined state environmental law violations during 2008-2011, a period when drilling in Pennsylvania shale increased substantially. A press release from the university – widely quoted in the national news – quoted the lead author’s description of the findings: “now we have comprehensive data that demonstrates, without ambiguity, that state regulation coupled with improvements in industry practices result in a low risk of an environmental event occurring in shale development, and …
The House Energy & Commerce Committee’s Subcommittee on Energy and Power holds a hearing today on “EPA Enforcement Priorities and Practices.” CPR Member Scholar Joel Mintz, Professor at Nova Southeastern University Law Center, will be testifying. From his testimony:
.. during the eight years of the George W. Bush administration, the civil penalties assessed against environmental law violators averaged $117 million per year. In contrast, during the first three years of the Obama administration, EPA enforcement resulted in the assessment of a lower amount of civil penalties: $115 million per year. ... Although there may well be good explanations for these declines, they do support the overall conclusions of my historical research: EPA’s enforcement work during the Obama period has been similar in nature to its work in nearly every administration since the Agency was established, regardless of the party affiliation of the president.
Mintz is the …
Today CPR releases Manure in the Bay: A Report on Industrial Animal Agriculture in Maryland and Pennsylvania. The paper provides a snapshot of the federal Concentrated Animal Feeding Operations (CAFO) permit program under the Clean Water Act (CWA) and how these states are implementing this program. The report provides recommendations for strengthening these programs to curb pollution to the Chesapeake Bay and provides a brief glimpse at the broader animal agricultural and manure management programs work in these states. The report was written by CPR President Rena Steinzor and me.
Congress specifically identified CAFOs as sources of pollution to be regulated four decades ago, but regulations at the federal and state levels have only begun to be developed and seriously implemented. In the meantime, the dramatic rise in the number of animals in fewer and fewer facilities has led to a dramatic increase in the amount of …
Cross-posted from Legal Planet.
The en banc 9th Circuit issued its opinion Friday in Karuk Tribe v. US Forest Service. This opinion brings a welcome reversal of a panel opinion from last April which had ruled in a split decision that the Forest Service did not have to consult with the wildlife agencies before authorizing suction dredging on the Klamath River. Judge Milan Smith wrote for the majority in the panel decision, with Judge William Fletcher in dissent. Those roles were reversed in the en banc opinion, with Judge Fletcher writing for the majority of the 11-judge en banc panel and Judge Smith writing a sharp dissent joined by 3 others.
I want to make two points about this opinion. First, substantively, it is unquestionably correct. The panel’s decision badly misinterpreted the context, potentially allowing federal mission agencies to escape the review by wildlife agencies the …
Last December, the Federal Aviation Administration (FAA) finalized a new aviation safety rule designed to prevent excessive pilot fatigue, a problem that had contributed to at least one high-profile airline disaster—the Colgan Air Flight 3407 crash near Buffalo, New York, in February of 2009, which killed 50 and injured four—as well as to a disturbing series of mishaps and “near misses.”
It turns out that the rule took a mid-flight detour on its journey from proposal to final form, and that the way in which it was weakened along the way is a textbook example of how the White House Office of Information and Regulatory Affairs manages, at the behest of industry, to override the plain meaning of statutes requiring regulation. The proposal, issued for public comment in September 2010, covered cargo-only pilots as well as passenger pilots. That made a certain sense, because while …
a(broad) perspective
Today’s post, co-authored by CPR Member Scholar Sandra Zellmer and Policy Analyst Yee Huang, is the fourth in a series on a recent CPR white paper, Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties. Each month, this series will discuss one of these ten treaties. Previous posts are here.
Biodiversity is the range of variations in all forms of life, from the genetic level to the species level to the ecosystem level. This diversity of life sustains all processes on the planet, built up …
This Memorial Day weekend, boaters, swimmers, fishers and others will flock to the Chesapeake Bay to mark the traditional, if not quite calendrically accurate, beginning of summer. They'll bring their wallets with them, of course, thus supporting businesses and and jobs up and down the Bay. After a day in, on or near the water, many of them will tuck into a meal of crabcakes, made from blue crabs harvested in the Bay.
Recreation and commerce are two of the most important uses of the Bay, and certainly the best known. But another use, less advertised and far less understood, is as a dumping ground for pollution. Some of that pollution comes from rainwater runoff from roads and other hard surfaces, carrying motor oil and other substances into the Bay. Some comes from overfertilized lawns. And a significant chunk, including 44 percent of the Bay's …
The The following is the second of two Dan Farber blog entries reposted today from LegalPlanet.
The key to understanding the economics of environmental protection is the concept of externalities. An externality is simply a cost that one person or firm imposes on another. In general, an externality means that an activity is causing more harm than it should.
Of course, a company or individual could decide to voluntarily correct the problem to eliminate the externality. But if the cost is significant, many people will not be altruistic enough to bear a heavy cost in order to help someone else. And corporations, which have a fiduciary duty to protect their own shareholders, are not in the business of being altruistic toward outsider.
If only a few people are on the receiving side of the externality, they might be able to enter a contract with the creator of …
Following is the first of two Dan Farber blog entries reposted today from LegalPlanet.
Bureaucrats aren’t very popular. But consider the alternatives when it comes to dealing with environmental problems. Basically, bureaucrats are part of the executive branch of government. For instance, the head of EPA is appointed by the President and can be removed by the President at any time. (A few agencies such as the SEC enjoy some protection from presidential removal power, but that’s not true for any of the environmental agencies.) I explained in my last post why the free market won’t generally solve environmental problems. So that leaves the three branches of government: the courts, the executive branch, and Congress.
Most people who don’t like regulations also don’t like the idea of using courts to solve social problems. In the case of environmental problems, the reluctance is …
