June 21, 2010 by Amy Sinden

With characteristic audacity, the Wall Street Journal editorial page today is arguing against the precautionary approach to environmental policy that undergirds our system of environmental laws, even as the oil continues to gush into the Gulf of Mexico. Instead, they want to shift the burden of proof and only allow regulators to restrain corporate greed when the government can first quantify and monetize the environmental harm that will result and demonstrate that it outweighs the money to be made by taking environmental risks. The problem is, of course, that when you require cost-benefit analysis, the environment loses, because most of the values at stake on that side of the equation—human lives, air you can breathe, water you can swim and fish in—just can’t be measured in dollar terms. 

The editorial writers of the Wall Street Journal lament that the disaster in the Gulf is …

June 18, 2010 by Ben Somberg

The latest from ProPublica and the Sarasota Herald-Tribune:

At least a half-dozen homebuilders, installers and environmental consultants knew as early as 2006 that foul smells were coming from drywall imported from China – but they didn’t share their early concerns with the public, even when homeowners began complaining about the drywall in 2008.


June 18, 2010 by Matthew Freeman

CPR President Rena Steinzor has an op-ed in this morning's Baltimore Sun on the various regulatory failures at work in the BP oil spill. She writes that important questions need to be answered "about how the federal regulatory system allowed BP and other oil companies to drill in waters so deep without effective fail-safes," and continues:

In truth, this is just the last in a string of profit-driven tragedies that have horrified us recently. Consider the 29 workers smothered in a West Virginia mine shaft; salmonella-laced peanut butter that killed nine and sickened thousands; the recall of 8 million Toyotas after as many as 89 people were killed in sudden acceleration incidents; children's toys slathered with lead paint; drywall venting sulfuric acid into living rooms; and now the worst environmental disaster in our history, which initially killed 11 workers.

The companies that caused these tragedies …

June 17, 2010 by John Echeverria

If further proof were needed that appointments to the Supreme Court matter, it was provided today by the Court’s decision in Stop the Beach Renourishment, Inc. v. Florida Department of Environmental Protection. The so-called conservative wing of the Court came one vote short of issuing a decision that would have revolutionized the law of property rights in the United States. The case involved the facially implausible claim by several coastal property owners along Florida’s panhandle that they suffered a “taking” under the Fifth Amendment to the U.S. Constitution because the state and local governments acted to protect them and their neighbors from erosion (my amicus brief in the case is here). The alleged taking resulted from an extensive effort to build up the eroded shoreline with sand pumped from the ocean bottom offshore. Because the new beach was constructed atop publicly owned submerged lands …

June 16, 2010 by Matthew Freeman

CPR Member Scholar Dan Farber was on the PBS NewsHour on June 14 discussing the Obama Administration's plan to force BP to establish an escrow fund to compensate victims of its oil spill in the Gulf of Mexico.  You can see the entire interview with Ray Suarez, on the NewsHour site.  Here's a snip of the transcript:

RAY SUAREZ: Daniel Farber, you're familiar with what's in that federal oil protection act. Is there a mechanism in there for the government to say, you must create an escrow fund?

DANIEL FARBER: They're -- certainly, it's true that, at the end of the day, victims can go to court and sue. And BP also has to have a mechanism for processing claims before that. But I don't see anything at least that to my mind requires them to set up this …

June 15, 2010 by Matthew Freeman

It’s fascinating to listen to the media, with lots of encouragement from the right wing, inch its way toward blaming the BP Oil Spill on President Obama. Apparently the President’s job description includes a previously unknown provision about deep-sea plumbing expertise. 

Let’s follow the media’s path for a moment here. First we heard media whining that the President was insufficiently engaged in the crisis, on the strength of no evidence whatsoever. Then the press went through a "false equivalency" phase, with a wave of speculation over whether this was, “Obama’s Katrina.” Then we heard howls from FOX commentator Sarah Palin (she of “drill, baby, drill” fame) that he hadn’t cozied up personally to BP CEO Tony Hayward. Now former American Enterprise Institute Fellow and current Washington Post columnist Anne Applebaum complains that he’s bending too far in the opposite direction …

June 14, 2010 by Holly Doremus

(Cross-posted from Legal Planet.)

In January 2009, the Sixth Circuit in National Cotton Council v. EPA struck down a Bush-era rule declaring that pesticide application to or over waters was exempt from the Clean Water Act’s NPDES permit program, under which a permit is required for any discharge of pollutants to waters of the U.S. from a point source. The effect of that decision was later stayed until June 2011 to allow EPA time to respond. The agency has now issued a draft Pesticides General Permit which it expects to become effective in April 2011 and a detailed fact sheet explaining the basis for the terms of the draft permit. The permit will only apply in those areas of the country where EPA is responsible for NPDES implementation. States with NPDES authority will develop their own pesticide permit requirements, as some have already done. It …

June 11, 2010 by Daniel Farber


Cross-posted from Legal Planet.

On Thursday, the Senate voted down a resolution from Sen. Lisa Murkowski’s (R-AK) to halt EPA regulation of greenhouse gases. The vote was 53 to 47.  What are we to make of the vote?

The resolution was offered under the Congressional Review Act, which provides a fast-track mechanism for Congress to override agency regulations.  (The CRA, which was part of the Contract with America in the 1990s,  is a substitute for the kinds of “legislative vetoes” that the Supreme Court has found to be unconstitutional.  There’s a detailed discussion in this law review note.)  You may recall that EPA’s endangerment finding was made after the Supreme Court held that, if climate change endangers human health or welfare, EPA has a duty to make a finding to that effect and to regulate greenhouse gases.  In effect, the Murkowski resolution would amend …

June 11, 2010 by Daniel Farber

Rob Verchick’s new book, “Facing Catastrophe: Environmental Action for a Post-Katrina World,” might help avoid future disasters like the Deepsea Horizon blowout. 

Verchick views wetlands, lakes, forests, and rivers as a kind of infrastructure, providing ecosystem services that are just as important as the services provided by other infrastructure, such as roads and dams. For instance, Gulf Coast wetlands provide a buffer against storm surges (protecting not only people but key oil facilities), and nurtures vast numbers of birds and sea creatures (including a fifth of all U.S. seafood). He makes a compelling case that we need to do more to preserve this crucial infrastructure.

Too often, Verchick says, we rely on cost-benefit analysis (CBA) to guide our decisions about preservation. Like many critics of CBA, he argues that it shortchanges such important values as preservation of human life and natural wonders; undercounts the interests …

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