July 7, 2009 by Ben Somberg

A Final Look Back at the Supreme Court's 2008-2009 Term

It was, as Greenwire put it, a rough term for environmental interests; in five separate cases the Supreme Court overturned rulings that environmentalists had favored.

CPR Member Scholar Amy Sinden told the NYTimes of one of the themes:

“It’s become a cliché to say the Roberts court is about the expansion of executive power ... and I think it’s true of these environmental cases as well. The court gave the Bush administration discretion. That certainly leaves the Obama administration with discretion to act as well.”

Below is a recap of CPR Member Scholars' reactions to some of the key cases of the term.

Winter v. Natural Resources Defense Council Holly Doremus:

In truth, nobody in the environmental community welcomed the decision—and it certainly wasn't a great day to be a whale—but the decision itself is neither surprising nor sweeping. ... According to the decision, the plaintiffs in these cases—environmental-advocacy groups, for the most part—must show that the potential harm to the environment outweighs the defendant's and the public interest in proceeding with the action. In other words, was sonar sufficiently important to the Navy (and thus the public) that the harm to the whales …

July 6, 2009 by Holly Doremus

Cross-posted by permission from Legal Planet.

For much of the past decade, the Department of Agriculture regulations governing land and resource management planning in the national forests have been a kind of political ping-pong ball, bounced back and forth between administrations, and between the executive branch and the courts. Now the U.S. District Court for the Northern District of California has taken another swat at that ball.

The planning rules are important because they govern the adoption of plans for individual units of the national forest system, and site-specific activities on those units must be consistent with the plans. The planning rules were first adopted in 1979, to implement the National Forest Management Act passed in 1976. They were revised but not fundamentally altered in 1982. In November 2000, two days before the election that ultimately made George W. Bush president, the Clinton administration finalized a …

July 2, 2009 by Catherine O'Neill

California has expanded its fish consumption advisory, warning people to curtail or eliminate entirely their consumption of nineteen species of fish caught off the Palos Verdes Peninsula in Los Angeles County.  Among the new advisory’s recommendations is that humans should avoid eating white croaker, topsmelt, or barred sand bass caught in an area extending more than 30 miles from the Santa Monica pier south to the Seal Beach pier, and that, additionally, women and children should avoid barracuda or black croaker from this area.  The advisory also includes less strict recommendations for a broader area of coastline, stretching more than 100 miles in total, including the entire coastlines of Los Angeles and Orange counties, and part of Ventura County. The primary contaminants of concern behind these advisories are DDT and PCBs (both human carcinogens) but mercury and a host of other substances also threaten the health …

July 2, 2009 by Thomas McGarity

On Wednesday, Representative Henry Waxman introduced a comprehensive “Food Safety Enhancement Act” (116-page discussion draft) to repair part of a federal food safety protection regime that has been badly broken for several decades. Waxman was joined by Representatives Diana DeGette, John Dingell, Frank Pallone, Bart Stupak, and Betty Sutton; the House Energy and Commerce Committee will hold a hearing on the issue on Wednesday, June 3.

A key problem with the current system is that it employs regulatory tools developed during the early twentieth century to address the risks posed by a radically different twenty-first century food production and delivery system.

The existing regime is built upon the assumption that state and local governments can adequately address the risks of a largely local food supply with occasional assistance from a federal Food and Drug Administration that focuses primarily on animal feeds, food additives and a modest quantity …

July 2, 2009 by Ben Somberg

A string of recent developments have brought the issue of contaminated drywall back into the headlines (we last wrote about the issue here).

Last week EPA released the results of tests it did on two Chinese drywall samples taken from a Florida home. They found sulfur, as well as two organic compounds associated with acrylic paints (all not usually in drywall). They also found strontium at much higher levels than usual for drywall.

On Thursday, the Consumer Protection, Product Safety, and Insurance Subcommittee of the Senate Commerce, Science & Transportation Committee (got that?) held a hearing on drywall. The CPSC's Lori Saltzman tried to assure the Senators that the agency was addressing the problem, and referred the committee to, but as of Wednesday morning it's a dead URL. The agency does have information for the public here.

Dr. David Krause, of …

July 2, 2009 by Rena Steinzor

As expected, Cass Sunstein's nomination for Administrator of the Office of Information and Regulatory Affairs (OIRA) was approved Wednesday by the Senate Committee on Homeland Security and Government Affairs. Senator Tom Coburn (R-Okla.) alone voted against confirmation (we’re guessing his vote was not motivated by concerns over Sunstein’s past support for cost-benefit analysis and strengthening the institution of centralized regulatory review.) Sunstein is expected to be approved by the full Senate soon.

What now? In his confirmation hearing, Sunstein pledged he'd use underlying statutory standards to guide regulatory decision-making, and illustrated the point by acknowledging that some statutes do not allow agencies to take costs into account at all, such as the provisions of the Clean Air Act that direct EPA to set National Ambient Air Quality Standards. He said the agencies, not OIRA, must play the primary role in making regulatory decisions.

Sunstein also …

July 2, 2009 by Holly Doremus

This item is cross-posted by permission from Legal Planet.

Last week, Interior Secretary Salazar and Commerce Secretary Locke issued a press release announcing that they were withdrawing the Bush administration’s midnight rules relaxing the ESA section 7 consultation requirements. (Background on the Bush rules is here, here, and here.) The notice formalizing that decision has now been published in the Federal Register. As Congress authorized them to do in the omnibus spending bill, the Secretaries have flat-out withdrawn the Bush administration’s last-minute consultation changes, reinstating the consultation rules as they stood prior to that rule. At the same time, recognizing that the consultation rules have not been comprehensively revised in more than 20 years, they have invited public comment on “ways to improve the section 7 regulations while retaining the purposes and policies of the ESA.”

A broad review of the Section 7 consultation rules …

July 2, 2009 by Rena Steinzor

The Chesapeake Bay watershed covers 64,000 square miles, measuring 200 miles in length and 35 miles at its widest point. The watershed is one of the most beautiful and economically productive in the world. Tourism, which depends to a large extent on the preservation of pristine environmental conditions, contributes billions of dollars to the economies of Delaware, Maryland, Pennsylvania, and Virginia. As Shana Jones recently wrote on CPRBlog, the Bay is plagued by so-called “nutrient loading,” a condition where a river or stream is choked with organic matter discharged from sewage treatment plants and manufacturing facilities or washed into the water by rainwater runoff from hog and chicken farms, other agricultural lands, and urban centers.

Nutrient loading kills fish and other aquatic life, accelerates the growth of algal blooms, and, at its worst, results in “dead zones” where natural resources cannot survive.

Between 1995 and 2004 …

July 1, 2009 by James Goodwin

Earlier this month, representatives from the military and a number of defense contractors had a closed-door meeting with officials at OMB's Office of Information and Regulatory Affairs (OIRA).  The topic under discussion was ostensibly a Safe Drinking Water Act regulation for perchlorate—a highly toxic chemical used in the manufacture of rocket fuel—that the EPA is currently considering.  A closer look at the documents provided to OMB at the meeting suggests that the military officials and defense contractors had an even broader agenda in mind:  making sure OMB continued to be a venue in which executive agencies affected by environmental, health, and safety regulations (what I will call “affected agencies”) can seek to interfere with or dilute those proposed regulations they find most inconvenient.

When it comes to environmental, health, and safety regulations, affected agencies—the Departments of Defense and Energy, in particular—are not all …

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