Oct. 8, 2009 by Yee Huang

All Beaks Turned to the Illinois River: Oklahoma Poultry Case Begins

On September 24, arguments began in Oklahoma v. Tyson, a 2005 lawsuit filed by the Oklahoma Attorney General against poultry companies operating in the Illinois River Basin. The lawsuit alleges violations of federal environmental laws, state and federal public nuisance law, and state statutes regulating pollution of waterways. Oklahoma’s legal strategy is unique: the state is bringing the suit under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA, more commonly known as the Superfund Law) to target the nonpoint source pollution of water. Success for Oklahoma in this case would signal a serious development in protecting water from nonpoint source pollution.

The defendant companies – 11 poultry producers including Tyson Foods, Cargill Turkey , Peterson Farms, Simmons Foods, and others – contract with large-scale poultry farmers across the basin, which covers 1 million acres between Oklahoma and Arkansas. They provide the farmers with the chicks, feed, and other support while the farmers themselves actually own, operate, and manage the poultry operations. An estimated 1,850 poultry farms operate in the basin, generating nearly 345,000 tons of poultry “litter” each year. The farmers either apply it as fertilizer to their own lands or sell it to other farmers to do the …

Oct. 7, 2009 by Nina Mendelson

This post is the fifth in a series from CPR Member Scholars examining different aspects of the Boxer-Kerry bill on climate change, which was released September 30.

To expand a bit on some of what Bill Buzbee discussed in his excellent analysis of the Boxer-Kerry bill on CPRBlog, it is critical to ensure that the implementation of a new climate change regime is done in a way that is prompt and efficient, but also accountable. An effective bill needs to hold government and private actors accountable for their new climate change obligations and actions. Such accountability is key to ensuring that there is confidence in the new cap-and-trade market and that we actually obtain the greenhouse gas reductions we need. In particular, we should focus on the citizen enforcement provisions of the bill and the management of offsets.

The bill incorporates the Clean Air Act enforcement provisions …

Oct. 7, 2009 by Alejandro Camacho

This post is the sixth in a series from CPR Member Scholars examining different aspects of the Boxer-Kerry bill on climate change, which was released September 30.

Though the Boxer-Kerry bill's take on climate change adaptation is similar to the approach adopted by the House of Representatives through the American Clean Energy and Security Act (ACES), a number of significant features are different (see my post from May, with Holly Doremus, analyzing an early version of that bill's provisions on adaptation). Like ACES, the Boxer-Kerry bill seeks more centralized executive oversight of federal and state natural resource adaptation, but it drops a number of details from ACES on international and domestic adaptation while adding several new funding programs for state and utility adaptation efforts. In the end, the adaptation provisions are an important step, but have some of the same key weaknesses as those in …

Oct. 6, 2009 by Sidney Shapiro

How’s this for any irony? David Michaels, President Obama’s nominee to head the Occupational Safety and Health Administration (OSHA), has written a book, published by Oxford University press, documenting how industry manufactures doubts that chemicals harm people by accusing regulators and plaintiff lawyers of relying of “junk science” instead of “sound science.” Now, after Michaels has exposed this effort as a public relations campaign that mischaracterizes how science actually works, he is being attacked on the grounds, you guessed it, of favoring junk science. And, because he favors “junk science,” he must be, you guessed it, a “radical.”

Michaels, an epidemiologist and research professor at the School of Public Health and Health Services at George Washington University, notes that the “sound science” campaign originated with the tobacco industry’s efforts to stave off regulation and tort suits by attacking the science indicating that smoking kills …

Oct. 5, 2009 by William Buzbee

This post is the fourth in a series from CPR Member Scholars examining different aspects of the Boxer-Kerry bill on climate change, which was released September 30

The Boxer-Kerry bill released on September 30, 2009 is yet another massive piece of proposed legislation. And it is likely to get even larger as details are added regarding distribution of pollution allowances, and as other gaps and shortcomings are addressed. Its basic architecture and enforcement provisions, however, give us a good feel for the bill’s basic functioning. It retains some of the best elements of the Waxman-Markey bill passed by the House and improves on others, but it leaves unresolved some fundamental choices that could lead to implementation uncertainties down the road. In particular, this analysis will focus first on error risks, especially on the extent to which the bill allows for regulatory agencies to fix mechanisms in …

Oct. 5, 2009 by Alexandra Klass

This post is the third in a series from CPR Member Scholars examining different aspects of the Boxer-Kerry bill on climate change, which was released September 30.

The Boxer-Kerry bill, like the Waxman-Markey bill that passed the House, provides for funding, study, and emissions allowances for Carbon Capture and Sequestration (CCS). In terms of developing a technology in the short-term to significantly reduce CO2 emissions from power plants, this is sound policy. On the other hand, it will be important to ensure that funding, CO2 allowances, and other support for CCS deployment do not shift the focus away from the imperative need to support and develop the necessary transition toward greater energy efficiency and more sustainable energy production.

In both a CPR Perspectives Piece and an earlier CPRBlog entry, I discussed CCS technology and the pros and cons of CCS. The Boxer-Kerry bill (like Waxman-Markey) requires that …

Oct. 2, 2009 by Holly Doremus

(Cross-posted by permission from LegalPlanet)

EPA finished September with a flourish. In addition to proposing New Source Review rules for greenhouse gas emissions and pushing for TSCA reform, the agency took the next step toward a crack-down on mountaintop removal. On September 11, EPA announced preliminary plans to review all 79 pending permit applications. This week, after considering public comment, it finalized that list, concluding that indeed all 79 require further review, based on concerns that the projects could more fully avoid or minimize impacts on aquatic resources; that they threaten to violate water quality standards; that their cumulative impacts have not been fully assessed; and that proposed mitigation efforts may not be effective.

Under the coordinated review procedures announced by EPA and the Corps in June, the next step is for the issuing Corps district and the appropriate regional office of EPA to review the permit …

Oct. 1, 2009 by Alice Kaswan

This post is the second in a series from CPR Member Scholars examining different aspects of the Boxer-Kerry bill on climate change, which was released September 30.

Wednesday was a big day for advocates of traditional regulation. While the Waxman-Markey bill proposed exempting greenhouse gases (GHGs) from key Clean Air Act (CAA) provisions, the Boxer-Kerry bill proposes a greenhouse gas (GHG) cap-and-trade program to complement rather than replace the CAA’s standard authority to establish regulations for stationary sources of air pollutants. Almost simultaneously, EPA proposed a rule that would set the stage for applying CAA standards for new and modified sources on the nation’s biggest GHG emitters.  

Most of the Clean Air Act’s existing authority is retained under the Boxer-Kerry bill. That means that EPA can establish standards for all new facilities and for existing facilities that significantly modify their plants. (More specifically, EPA …

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