June 30, 2009 by Ben Somberg

Drywall Summer - An Update

The drywall debacle continues.

Inez Tenenbaum, President Obama's nominee for head of the Consumer Product Safety Commission, got a number of drywall questions from senators at her nomination hearing earlier this month.  They said the government response seemed too slow. Tenenbaum pledged she'd work on the problem, and was subsequently confirmed by a voice vote by the full chamber.

The CPSC has posted somewhat more extensive information on its website about identifying possibly contaminated drywall.  Florida's Department of Health had previously posted their own guide, and the two document give somewhat conflicting information. Hmm.

In Louisiana, a state senator, Julie Quinn, tried to move a bill that sought to place clear liability on the "manufacturer, seller and distributor" of tainted drywall.  The effort floundered earlier this month.

Also on the legal front, a number of drywall-related lawsuits from around the country will be consolidated to be heard in a court in New Orleans. The Times Picayune reports:

A panel of federal judges ruled Monday that lawsuits filed around the country against home builders, suppliers and manufacturers of Chinese drywall be moved to New Orleans, where U.S. District Judge Eldon Fallon will preside over discovery and pre-trial …

June 29, 2009 by Ben Somberg

Waxman-Markey passed the House.  Was it the right thing to do?  What's the outlook from here?  Here are a few views from around the web.

Dan Farber:

The concerns about measuring and enforcing offsets are genuine (and increased because of Waxman-Markey’s reliance on USDA to do the job.)  But those problems aren’t insurmountable either.  Instead of complaining about reliance on offsets or the inclusion of USDA, we need to think about how to improve the offset program.

Matt Yglesias:

When you draw intersecting curves of “what needs to be done” and “what can realistically be done,” Waxman has time and again put himself at the intersection, and I think it involves a fair amount of hubris to think that you know better than him what the best feasible legislative outcome is.

That said, there’s really no getting around the fact that the best …

June 26, 2009 by Victor Flatt

Wednesday, I explored the various ways that the USDA takeover of bio-sequestration offsets could affect how well the offsets provision of the Waxman-Markey Climate Security Act would work. Today, we have legislative language in the form of an amendment offered by Rep. Collin Peterson (D-MN), which fills in some of the details.  While some of the changes may be helpful, others are cause for worry.

The amendment gives all offset authority over bio-sequestration and agricultural activities to the USDA – the authority to initially approve offset rules; to create rules for “additionality,” leakage, and permanence; to approve offsets themselves; and to account for reversals. The language does remain specific about what must guide the rulemaking, and is also specific about accounting for reversals and holding offset credits in reserve for reversals. The offset reversal part of the law does expand the list of offsets eligible for requirements of …

June 26, 2009 by Bradley Karkkainen

The House Agriculture Committee yesterday released the language of an amendment by Agriculture Committee Chairman Collin Peterson (D-MN), which Rep. Waxman has agreed to accept as part of the final House climate change bill in order to secure support from Peterson and other farm-state representatives. Peterson represents a large, heavily ag-dependent district in central and western Minnesota, and makes no apologies for his desire to protect the interests of farmers in his district and elsewhere. From that perspective, the Peterson-Waxman deal represents one of Peterson’s most significant legislative accomplishments to date as Ag Committee chairman. From the point of view of environmentalists, however, the deal involves some major concessions to the ag and forestry sectors, and a serious weakening of the bill.

Peterson's amendment notably exempts the ag and forestry sectors from , and moves authority to draw up and administer rules for offset credits generated …

June 25, 2009 by Ben Somberg

What was the cost, in dollar terms, of the nine lives lost in the DC Metro crash on Monday? And how does that compare to what the cost would have been to prevent the accident, or lessen the severity of it? Should we do a cost-benefit analysis to determine the best policy?

Edward Tenner's post at the Atlantic looks at the absurdity of the proposition:

The disturbing truth is that even at the old, higher number, the loss of 9 human lives would not be grounds for replacement of the older model cars offering less survivability. Even if all nine casualties could have been spared, the $888 million estimate cost of replacing 1970s cars newer, safer models would have been almost $100 million per life, more than twelve times the pre-2008 $8.04 million statistical value of life used by the EPA.

This makes me think. In …

June 24, 2009 by Victor Flatt

Last night, House Energy and Commerce Chair Henry Waxman announced that he had agreed with Agriculture Committee Chair Collin Peterson that the USDA could have jurisdiction over agricultural offsets in the massive American Clean Energy and Security Act, which the House may vote on this Friday.

In agreeing to what had been one of the major sticking points to bringing farm Democrats on board, Waxman appears to believe that any concerns over USDA’s role are outweighed by the other good things in the bill. There are a lot of potential concerns with the USDA having the lead role on agricultural offsets. Most environmentalists have asserted that the EPA would be more likely to properly enforce the requirements that offsets be additional, verifiable, and not have leakage.

It is hard to make predictions about the effect of this change without specific legislative language, which is expected later …

June 23, 2009 by Victor Flatt

Yesterday the Supreme Court ruled in Coeur Alaska, Inc. v. Southeast Alaska Conservation Council that the United States EPA and the Army Corps of Engineers could interpret the Clean Water Act to exempt water pollution sources from pollution control requirements if the pollution was accompanied by fill material.

This legal feat was accomplished because the Clean Water Act divides jurisdiction between the Corps for “fill” material and the EPA for pollutants. This division ostensibly gives each agency control of its own area of expertise, the Corps dredging and filling and the EPA pollutants that could harm human health or the environment generally. The problem comes when, as in this case, “fill” material contains significant amounts of pollution. Who then should regulate? I believe a straightforward reading of the intent of the legislation indicates that generally the Corps should only regulate fill that might contain de minimis amounts …

June 23, 2009 by Daniel Farber

Cross-posted by permission from Legal Planet.

In an opinion by Justice Kennedy, the Supreme Court decided two issues in this case, over a dissent by Justice Ginsburg.  The first was whether the Clean Air Act gives authority to the United States Army Corps of Engineers, or instead to the Environmental Protection Agency (EPA), to issue a permit for the discharge of mining slurry. The second question was whether the Corps acted lawfully in issuing the permit. The Court held that the Corps was the appropriate agency to issue the permit and that the permit is lawful.

This case involved a federal permit for a mining operation.  Over the life of the mine, Coeur Alaska intends to put 4.5 million tons of tailings in the lake. This will raise the lake bed 50 feet—to what is now the lake’s surface—and will increase the lake …

June 22, 2009 by Matt Shudtz

While his colleagues (and former colleagues) jockey for the healthcare reform limelight, Rep. Frank Pallone is quietly busy making sure that, regardless of who pays for healthcare, the sick and injured will have safe and effective solutions to their problems. Last Thursday, Rep. Pallone held a hearing to assess FDA’s ability to properly oversee the medical device industry. The testimony outlined a troubling picture.

GAO has been closely monitoring FDA’s medical device program for years. On Thursday, Marcia Crosse, the head of the government watchdog’s health care division, testified about three serious shortcomings in FDA’s work. To begin, FDA isn’t necessarily reviewing high-risk devices according to the most stringent premarket review processes, meaning the devices might reach the market without adequate review of their inherent dangers, putting patients at increased risk. That problem leads to the second flaw GAO identified – FDA is …

June 19, 2009 by Ben Somberg

Andrew Freedman of's Capital Weather Gang has a nifty catch: the Heartland Institute, the people cluttering up my newspaper this week with climate-change-denying ads, have officially changed tack on their lobbying policy. Back in March, the group told Freedman:

"Our purpose is to bring scientists, economists, and policy experts together to address issues overlooked or ignored by the IPCC the United Nations Intergovernmental Panel on Climate Change .... If we really wanted to influence policy we would have held the event in Washington, not New York - as many of the policy wonks at the conference have urged us to do, but we resist."

But the group ended up holding its conference in Washington this month. Now they tell Freedman:

"The reason we moved up the date, changed the location, and presented a shorter schedule ... was to bring our message to elected officials in Washington D …

More on CPR's Work & Scholars.
June 30, 2009

Drywall Summer - An Update

June 29, 2009

Waxman-Markey Analysis Round-Up

June 26, 2009

Offsets in the USDA – The Bad, the OK, and the Unknown

June 26, 2009

The Peterson Compromises and the Question of

June 25, 2009

Running the Cost-Benefit Analysis on the Metro Crash?

June 24, 2009

Handing Primary Control of Offsets to USDA: What this Might Mean

June 23, 2009

The Roberts Court Gets Reckless with Administrative Law in Coeur Alaska: Problems Now, Problems Later