Republican legislators have been scheming for years about ways that they can slow down, if not stop, needed health, safety and environmental regulations. But their latest effort, though creative, is perhaps their most ill-conceived. They’re calling it   “The REINS Act” (in the last Congress, H.R. 3765 sponsored by Rep. Geoff Davis (R-KY), S. 3826 sponsored by Sen. Jim DeMint (R-SC)), and, if adopted,  no new "economically significant" regulations would take effect unless affirmatively approved by Congress, by means of a joint congressional resolution of approval, signed by the President.  The proposal is a genuinely radical departure, plainly designed to gum up the regulatory works. Republicans have promised to hold congressional hearings on the bill early this year.

The REINS Act would make Congress the final arbiter of all significant regulatory decisions. While superficially this may seem like a good idea – after all, Members of Congress …

The report of the President’s Gulf Oil Spill Commission answered some questions and raised others. But one thing still puzzles: Why didn’t the Gulf Oil Spill start a national conversation about our dependence on oil development and the need for renewable energy?

At first, it appeared it might, but the focus quickly turned to reforming the regulatory agency with oversight for the spill and fixing the technical failures that caused the well blowout in the first place. Both were important areas of inquiry, but the focus on oversight failures and technological quick fixes allowed us to avoid more fundamental questions that had to do with our failure to make the investments necessary to create a future grounded in renewable energy.

We know from history that a larger policy conversation might well have been triggered. In the mid-1970s, Love Canal triggered such a national reexamination, and …

Cross-posted from Legal Planet.

If EPA is afraid of the new Congress, you wouldn’t know it from today’s news.  Assistant Administrator Peter Silva issued the Obama administration’s first veto of a Clean Water Act section 404 permit. This veto, which has been working its way through the cumbersome process for more than a year (see here, here, here, and here), is only the 13th in agency history, the second since 1989, and the first to be issued after a permit had been issued. It blocks “valley fills” — the use of streams and tributaries for disposal of the rock and dirt removed in surface coal mining — at Mingo Logan’s Spruce No. 1 Mine in Logan County West Virginia.

The proposed Spruce No. 1 project is enormous:

If fully constructed, the project will disturb approximately 2,278 acres (about 3.5 square miles) and bury …

Despite its strong condemnation of the industry-wide problems that caused last year’s BP Oil Spill, the report today from the President’s commission waivered on a crucial subject: it significantly embraced the essentially self-regulatory British "Safety Case" model of regulation that industry and its consultants have been promoting. So while the commission has done some terrific work, one of its key recommendations is very disturbing.  The safety case approach ultimately leaves to the oil companies, rather than regulators, the difficult but crucial work of making sure another rig does not explode. We can do better, if Congress gives the regulators adequate funding, moves them to an agency like the EPA or OSHA whose mission is to crack down on bad actors, and gives them the authority they need to make the oil industry internalize the American people’s expectation that it operate safely.

A number of …

Cross-posted from Legal Planet.

It’s often said that the Clean Air Act is an inappropriate way to address climate change.  It would undoubtedly be desirable for Congress to pass new legislation on the subject, but the Clean Air Act is a more appropriate vehicle than many people seem to realize.  There are six common misconceptions about the statute that have led to confusion:

Myth #1:  EPA has made a power grab by trying to use the Clean Air Act. Not true — the Supreme Court held that greenhouse gases are air pollutants and directed EPA to make a scientific judgment about whether climate change is a threat to human health or welfare.

Myth #2: The Clean Air Act is only aimed at harms from breathing air pollutants. Again, not true.  Inhalation hazards are clearly important, but the statute also addresses hazards such as increased ultraviolet radiation from …

On Dec. 30, the EPA announced that it was partially disapproving the Texas State Implementation Plan (SIP) that would not allow it to issue PSD permits for greenhouse gases that were now “subject to regulation.” Continuing its resistance to all things EPA, Texas filed a request for an emergency stay of the disapproval in the DC Circuit. This follows Texas’s request for an emergency stay on the rulemaking which declared GHGs subject to regulation under PSD in the DC Circuit, and later in the Fifth Circuit, both of which were denied.

This time, however, perhaps because it was a holiday, the DC Circuit (without ruling on the merits) entered a temporary stay until the issue could be considered more fully today, January 6. Texas and its supporters are arguing that the EPA should get reversed on this one because it might have violated procedural notice and …

One of the top agenda items for the new Republican majority in the House of Representatives will be pressing an anti-regulatory bill they're calling the REINS Act. The bill would subject newly minted regulations protecting health, safety, the environment and more to a requirement that  Congress adopt resolutions of approval within 90 days of the date that the regulatory agency finishes its work.  It's a miserable idea for a number of reasons, many of which CPR Member Scholar David Driesen details in an op-ed in this morning's Syracuse Post-Standard.  He writes:

Since gridlock, backed by filibusters, makes passage of legislation extremely difficult today, this approach promises to make setting significant standards to address looming problems, from climate disruption to a new potential economic crisis, very unlikely. Just to make sure that routine delays in Congress can derail even popular and obviously needed standards, the …

Representative Darrell Issa, the incoming chair of the House Oversight and Government Reform Committee, has made his views on regulations fairly clear. Earlier this week, for example, he scored headlines when his office gave out a document publicizing the issues his committee will take up. From the document: "The committee will examine how overregulation has hurt job creation..."

No surprise; that's about the line we'd expect from Issa.

But someone in Issa's office must have recognized a problem: Won't the investigations not quite have the same credibility or punch if the investigator himself has already announced his conclusion?

Perhaps that’s why Rep. Issa's spokesman, Kurt Bardella, took a different tack this same week, telling Politico: "Is there a pattern emerging? Is there a consistent practice or regulation that hurts jobs? Until you have all the facts, you really can't make …

Cross-posted from Legal Planet.

Although there will be many flashing lights and loud noises, 2011 will primarily be a year in which various events that are already in play evolve toward major developments in 2012.

Litigation. The one exceptional major development in 2011 will be American Electric Power (AEP) v. Connecticut, the climate nuisance case that the Supreme Court has agreed to hear.  The odds are good that the Court will throw out the case, the interesting question being what ground the Court will choose.  It would be very surprising if the Justices relied on the political question, which the trial courts have favored.  The easiest basis for dismissal would be that the federal common law of nuisance is preempted by EPA’s actions under the Clean Air Act, but there will surely be a number of Justices who want to dismiss the case on the basis …