Fifth Circuit's Ruling Puts Next Steps on Cooling Water Regulation and Cost-Benefit Analysis in Hands of Obama EPA -- and OIRA
It turns out there’s more than one way an offshore oil rig can kill a fish. Even when they’re not spewing oil into the ocean, oil rigs kill vast numbers of fish and other aquatic organisms in their daily operations by sucking them up into their cooling water intake systems, where they get squashed against screens and otherwise beat up by the mechanism. Power plants do it too, as does any industrial facility that circulates water for cooling. Congress recognized this problem four decades ago and so put a specific provision in the Clean Water Act directing the EPA to regulate cooling water intake structures. But there’s been a fight raging for years about just how EPA should carry out those responsibilities.
You may remember that the U.S. Supreme Court weighed in on this controversy last year in Entergy Corp. v. Riverkeeper, largely siding with industry to say that EPA could use cost-benefit analysis to set these regulations. Two weeks ago, the U.S. Court of Appeals for the Fifth Circuit weighed in as well, in a decision in ConocoPhillips, et al. v. EPA that essentially kicked another ball back into the Obama administration’s court …
Cross-posted from Flatt Out Environmental.
As expected, the EPA's "tailoring rule," under which it proposes to regulate stationary sources of greenhouse gases under the Clean Air Act (CAA) only if they produce over 75,000 tons of carbon dioxide equivalent forcing per year, has been challenged in court by numerous organizations. These include industry, several states (the usual suspects including Texas), and more surprisingly several environmental organizations.
The crux of industry and state challenges to the tailoring rule is that it is illegal pure and simple. Specifically, the challenges note that the CAA requires that when the EPA regulates stationary sources under the CAA, that it do so for sources that emit over either 100 or 250 tons per year. Of course, industry doesn't really want all of these smaller sources regulated, but they want to make it virtually impossible for EPA to regulate at …
The Minerals Managements Service's coziness with an industry it was supposed to be monitoring has brought attention back to an all-too-pervasive problem: regulatory agencies becoming "captured" by the regulated industries.
This morning the Senate Judiciary Committee's Subcommittee on Administrative Oversight and the Courts is holding a hearing on “Protecting the Public Interest: Understanding the Threat of Agency Capture.” CPR Member Scholar Sidney Shapiro is testifying about the nature and extent of agency capture, and what Congress can do about it. (There's also a news release.)
Shapiro says there are three preliminary types of capture:
- Political Capture occurs when an agency fails to protect the public and the environment because regulators friendly to industry block regulatory efforts or do not enforce the laws and regulations then in effect.
- Representational Capture occurs when industry representatives regularly appear before an agency, offering detailed comments and criticisms, while …
You may have read of a letter sent by 31 Representatives to the EPA today to complain about coal ash regulation. I wasn't planning on dignifying it with a response, but sometimes something just calls out for a little highlighting. Like when the members write:
"States have been effectively regulating CCRs"
That's actually a case they want to be on record making? Really?
View of the TVA Kingston Fossil Plant fly ash spill. Photo used under Creative Commons by Brian Stansberry.
Now that Congress has passed legislation creating a new Consumer Financial Protection Bureau in the Treasury Department, attention has shifted to how the Obama Administration will implement the new law.
The issue of who President Obama should appoint to head the new agency is now front and center. Consumer groups and many members of Congress believe that Professor Elizabeth Warren, who came up with the idea for a consumer protection agency for the financial sector and has been an aggressive consumer advocate during the entire financial crisis, should be the President’s choice. The banking industry’s position is “anyone but Warren.”
Elizabeth Warren (who was my colleague at the University of Texas for many years) is the most qualified candidate. Although she would inevitably have to make compromises in launching the new agency, she is a charismatic leader who would remain a strong consumer advocate and …
The Motor Vehicle Safety Act of 2010 (H.R. 5381/S. 3302), the primary legislation on the table in response to the Toyota unintended acceleration fiasco, went through the committee process in the House and Senate earlier this summer. The bills, as introduced, included some tough provisions to respond to gaps exposed by the Toyota episode.
Among important reforms included in the bills currently:
- More public access to NHTSA’s early warning information database;
- standards for accelerator control and brake override;
- a standard requiring redundant systems to ensure vehicle electronics are robust;
- mandatory event data recorders;
- significantly increased civil penalties;
- penalties to hold corporate officials civilly liable for submission of false, misleading or incomplete information to NHTSA;
- restoration of federal judicial redress if people believe NHTSA has illegally denied their defect petition; and
- a needed increase in funding for NHTSA.
But as the bills move through the …
The EPA released a guidance document on Monday that promises to integrate environmental justice considerations into the fabric of its rulemaking efforts. Titled the Interim Guidance on Considering Environmental Justice During the Development of an Action, EPA’s Guidance sets forth concrete steps meant to flag those instances in which its rules or similar actions raise environmental justice concerns. Specifically, the Guidance directs agency staff involved in rulemaking to “meaningfully engage with and consider the impacts on” communities of color, low-income communities, indigenous populations, and tribes.
EPA’s Guidance responds to an issue raised by CPR Member Scholars at the dawn of the Obama Administration. In our 2008 report, Protecting Public Health and the Environment by the Stroke of a Presidential Pen, we observed that efforts to address environmental injustice had languished in the 15 years since President Clinton issued the Environmental Justice Executive Order (Executive Order …
Cross-posted from Legal Planet.
A key figure in behavioral economics recently issued a warning about over-reliance on its findings. In a NY Times op. ed, Dr. George Lowenstein raised questions about some uses of behavioral economics by government policymakers:
As policymakers use it to devise programs, it’s becoming clear that behavioral economics is being asked to solve problems it wasn’t meant to address. Indeed, it seems in some cases that behavioral economics is being used as a political expedient, allowing policymakers to avoid painful but more effective solutions rooted in traditional economics.
Behavioral economics should complement, not substitute for, more substantive economic interventions. If traditional economics suggests that we should have a larger price difference between sugar-free and sugared drinks, behavioral economics could suggest whether consumers would respond better to a subsidy on unsweetened drinks or a tax on sugary drinks.
But that’s the …
After endless negotiations and draft bills, the Senate has given up on climate legislation that would place any sort of cap on the nation’s emissions, and will likely settle for a few select energy initiatives. Congress’ failure to act is galling. Hand wringing is fully justified. But what now? State and local governments have become accustomed to federal paralysis, and will, I hope, continue to march on notwithstanding the tight lock that certain vested fossil fuel interests and industry have clamped on congressional action. Moreover, EPA’s efforts to regulate greenhouse gases (GHGs) under the Clean Air Act have become all the more critical in the absence of comprehensive federal climate legislation. A key question, however, will be whether state, Clean Air Act, and existing federal energy laws can make up for the absence of more comprehensive federal climate legislation.
In the last several years, over …
July 1 marked the 35th anniversary of the effective date entry-into-force of the Convention on International Trade in Endangered Species (CITES). While CITES is among the stronger international conventions, its strength is diminished by a lack of an enforcement mechanism and political maneuverings.
The arrests and cargo seizures may not make headlines often, but international trade in endangered species is one of the most valuable illegal markets, behind drugs but potentially comparable to arms and human trafficking. According to a 2008 Congressional Research Service (CRS) report, the global trade in illegal wildlife is valued at more than $5 billion and potentially exceeds $20 billion annually. For example, the Queen Alexandra’s Birdwing butterfly (Orinthoptera alexandrae), which can have a wingspan of up to 14 inches, sells for as much as $10,000! Some of the more valuable species commodities are tiger parts, caviar, elephant ivory, rhino horn …
