April 19, 2010 by Yee Huang

Riding a New Wave: EPA Considers Dramatic Changes to CWA Enforcement

A recent Water Policy Report article reported that EPA is considering dramatic changes to its Clean Water Act enforcement and permitting program and oversight of state permitting programs. Many of the changes under consideration, including prioritizing the most significant pollution problems, strengthening oversight of states, and improving transparency and accountability, are long overdue. Passed in 1972, the CWA contains much of the authority needed to clean up water pollution from point sources and certain other sources, but strong enforcement is the key to ensuring the Act’s goals are achieved.

EPA has long applied deterrence-based enforcement, which is based on the idea that regulated entities weigh the cost and benefits of complying with regulations. If the costs of complying with the law are lower than the costs of violating it, a rational regulated entity will comply with the law, goes the theory. If, however, the size of the penalties for violation, discounted by the probability that the government will pursue them, makes it cheaper to violate than to comply, a rational profit-maximizer will choose noncompliance. Deterrence-based enforcement has four key components:

  1. Sufficient, consistent, and regular compliance monitoring to identify violators;
  2. Prompt initiation of enforcement actions against violators;
  3. A mandate that …

April 16, 2010 by Matthew Freeman

The Competitive Enterprise Institute is upset with the way administrative law works. On Thursday they released their annual report on the costs of regulations. I hesitate to dignify it with pixels, but here goes.

CEI has a problem with agency rulemaking altogether:

Congress should answer for the compliance costs (and benefits) of federal regulations. Requiring expedited votes on economically significant or controversial agency rules before they become binding on the population would reestablish congressional accountability and would help fulfill the principle of “no regulation without representation.”

First, CEI owes an apology to our revolutionary forebears for bending the notion of “no taxation without representation” into an anti-regulatory chant. And while I’m diverting, exactly who is without representation in this construction? More significantly, long before agencies adopt regulations – and in many cases, a very long time before they adopt them – elected officials have already passed health and …

April 16, 2010 by Ben Somberg

As the Pump Handle noted earlier this week, OSHA submitted its draft final rule on construction cranes and derricks to OMB on Friday of last week. It’s good news that the process is now moving along.

The cranes and derricks rule has been a long saga, and it was one of the case studies in our report last year on the costs of regulatory delay.

By OSHA’s estimates, 89 people are killed and 263 are injured each year in construction crane incidents. The existing safety standards for the use of cranes, derricks, and other heavy machinery at construction sites are now almost 40 years old and are in dire need of updating to account for changes in technology and construction practices. Beginning in the mid-1990s, industry itself began petitioning OSHA for stronger and more comprehensive regulations, and in 2004 a committee of industry, labor, and …

April 15, 2010 by Ben Somberg

Senator Frank Lautenberg today released the  "Safe Chemicals Act of 2010 ” -- a bill to reform the Toxic Substances Control Act. Representatives Rush and Waxman released a discussion draft of related legislation in the House.

Here are reactions from Environmental Defense Fund, Environmental Working Group, Natural Resources Defence Council, and Safer Chemicals, Healthy Familes coalition.

We'll have more on this in the coming days.

April 15, 2010 by Alice Kaswan

In “Minding the Climate Gap: What’s at Stake if California’s Climate Law Isn’t Done Right and Right Away,” released Wednesday, researchers from several California universities have correlated the relationship between greenhouse gas (GHG) emissions and associated co-pollutants in several California industries. The results demonstrate that California’s climate law, AB 32, enacted in 2006, could help reduce not just carbon dioxide emissions, but a variety of co-pollutants that have contributed to the state’s persistent pollution. At the same time, the study demonstrates that if the state chooses to implement an unfettered GHG trading program, that program could continue or worsen existing racial disparities in pollution. The study proposes several carefully tailored policies that would maximize a cap-and-trade program’s benefits to public health and help narrow current inequities. The proposals, tailored to California’s emerging cap-and-trade program, could provide a model for federal …

April 13, 2010 by Bill Funk

Informal rulemaking under the Administrative Procedure Act was, as the late Kenneth Culp Davis opined, "one of the greatest inventions of modern government." It not only decreased the procedural requirements (and therefore the overhead) of “formal” rulemaking, but it also broadened the universe of persons able to participate in the informal proceeding to the public at large. Subsequently, other laws, such as the Freedom of Information Act, the Government in the Sunshine Act, and the Federal Advisory Committee Act, have expanded the ability of the public to monitor agency activities, if not to participate in them. BTI (before the Internet), agencies informed the “public” of proposed rules by publication in the Federal Register, which was widely available in public libraries. Interested members of the public could then submit comments on the proposal through the U.S. Mail (or private express carriers). Of course, those “in the know …

April 12, 2010 by Celeste Monforton

Cross-posted from The Pump Handle.

Last month, the US Dept of Labor (DOL) and MSHA were celebrating the 40th anniversary of the Coal Mine Health and Safety Act.  Their proclamations said:

“…this law represents a watershed moment in the improvement of occupational health and safety in the United States. It was the precursor to the Mine Safety and Health Act of 1977, which created MSHA, and it was the basis of the Occupational Safety and Health Act (OSH Act) of 1970.  The Coal Act forever transformed occupational safety and health in the United States.”

Now, I’m reading news story after news story with these same officials asserting the Mine Act is weak and doesn’t provide MSHA the tools it needs to shut down dangerous workplaces.  The spin machine is kicking into high gear. 

The Charleston Gazette’s Ken Ward Jr. reports that federal inspectors issued …

April 9, 2010 by Yee Huang

In preparing CPR’s recent white paper, Failing the Bay: Clean Water Act Enforcement in Maryland Falling Short, we conducted interviews with sixteen stakeholders across Maryland to assess MDE’s enforcement program as it operates on the ground. Collectively the stakeholders have decades of experience with enforcement at the federal, state, and local levels, as well as from environmental and industry perspectives. A full summary of the interviews can be found in the report, but a handful of surprising comments stood out. Comments on four areas stood out to me:

Maryland's Enforcement Compared With Other States. While Maryland prides itself on a strong environmental reputation, some interviewees tempered this pride. One environmental interviewee described MDE’s enforcement program as “middle of the pack – slightly under par,” while an official evaluated the program more positively, noting the “considerably higher” number of violations flagged for formal enforcement actions …

April 9, 2010 by Ben Somberg

CPR President Rena Steinzor (former director of the University of Maryland’s Environmental Law Clinic) and Robert Kuehn, president of the Clinical Legal Education Association, have a post over at ACSBlog putting the recent attack on the independence of the Maryland clinic into the context of other such moves across the country.

The Maryland legislature recently stepped back from an earlier threat to withhold funding to the clinic if it did not turn over private client information to the state. The issue came up when the clinic represented two advocacy groups suing chicken farmers over alleged pollution violations, leading to a backlash from the industry and its supporters (see Shana Jones’ earlier post).

Steinzor and Kuehn put the Maryland incident in the context of a “rising tide of attacks on law school clinics by those powerful interests affronted by law clinic opponents' access to pro bono assistance …

April 9, 2010 by Daniel Farber

Cross-posted from Legal Planet.

When I sat down to write this blog posting, I started by going through my environmental law casebook and noting down the cases in which Justice Stevens had written the majority opinion or a major dissent.   When I got done, I was startled by the central role Justice Stevens had played in creating modern environmental law.

I’ll explain that central role in a minute, but first, why I was startled?  Two reasons.  First, Justice Stevens still retains some of the “brilliant maverick” reputation that he gained in his first year on the Court.  That is, someone with a lot of sharp insights but no overall theme.  Second, so far as I know, he has no particular passion for environmental law as such.  His life before he became a judge never included environmental law, and so far as I know he has no …

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