July 16, 2010 by Daniel Farber

Utilities-Only Carbon Cap

Cross-posted from Legal Planet.

According to Thursday's NY Times, Senate Democrats have agreed to include a utilities-only cap-and-trade program in their energy bill.  That’s certainly not ideal — it excludes a large number of industrial sources, which limits its environmental effectiveness.  The utilities-only program will also be less economically efficient, since it precludes taking advantage of possible low-cost reductions available in the industrial sector.

Opinions will always differ about how much you can compromise before the game isn’t worth the candle.  I’m generally inclined toward the view that half a loaf is better than none.  In particular, passing any kind of federal climate legislation would be important as a first step toward something bigger.  It would help reestablish momentum and would be an important symbolic recognition of the seriousness of the problem. In more concrete terms, it would bring the coal states into the mitigation process.  That could also happen through EPA’s implementation of the Clean Air Act, but getting those regulations in place and implemented could be a tortuous process.

This assumes that the bill would actually be a step forward.  But if its preempts existing state and federal efforts without giving enough in exchange …

July 15, 2010 by Ben Somberg

The last time the WSJ attempted a big scoop on the Toyota story (attempting to discredit the Prius driver case in California), the article did not hold up well. This week's story ("Early Tests Pin Toyota Accidents on Drivers") has caught attention, and a response from NHTSA: the agency has "several more months of work to do" before it announces conclusions of its investigation.

From the response by Safety Research & Strategies Inc.:

Recall that Toyota reported to Congress in January that the company identified 37,900 customer contact reports “potentially related to sudden unintended acceleration” analyzing “dozens” of data recorders from the thousands of complaints doesn’t extrapolate to a driver error problem. Nor does it explain the large jump in complaint rates when Toyota moved to Electronic Throttle Control (ETC).

How unintended acceleration reports went up when electronic throttle control was added to vehicles …

July 14, 2010 by Ben Somberg

A report released in Washington this morning highlights "The Hidden Struggles of Migrant Worker Women In The Maryland Crab Industry." The paper, by Centro de los Derechos del Migrante, Inc. and the International Human Right Law Clinic at American University Washington College of Law, is focused mostly on immigration policy issues (a little outside our purview), but I wanted to note the section on worker safety.

The report looks at the hundreds of Mexican women who travel every year to the Eastern Shore of Maryland on H-2B guestworker visas to work in the crab industry. The researchers interviewed more than 40 current or former workers, and found that:

Work-related injuries are common for many of the migrant workers in the Maryland crab industry. Use of sharp knives, contact with chemicals, lack of formal training, and the pace of work all contribute to injuries. ... In fact, cuts, scrapes …

July 13, 2010 by Rena Steinzor

This post was written by CPR President Rena Steinzor and Michael Patoka, a student at the University of Maryland School of Law and research assistant to Steinzor.

Last October, the EPA proposed to regulate, for the first time, the toxic coal ash that sits in massive landfills and ponds next to coal-fired power plants across the nation. The 140 million tons of ash generated every year threaten to contaminate groundwater and cause catastrophic spills, like the 1-billion-gallon release that devastated Kingston, Tennessee in 2008. The EPA recommended that coal ash be listed as a subtitle C “hazardous waste,” making it subject to federally enforceable disposal requirements under the Resource Conservation and Recovery Act (RCRA). But by the time that the Office of Information and Regulatory Analysis (OIRA) was through “reviewing” the agency’s proposal, the rule had been watered down to suggest a choice of three alternatives …

July 13, 2010 by Holly Doremus

Cross-posted from Legal Planet.

As he had promised, Interior Secretary Ken Salazar on Monday issued a new decision memorandum suspending certain deepwater drilling operations.Monday’s decision replaces the moratorium that the federal District Court in New Orleans enjoined on June 22, and which the Fifth Circuit declined to reinstate last week.

As I made clear in my post on the Fifth Circuit decision, I think both the District Court and the Fifth Circuit were wrong on the first moratorium. Even if they were right, however, this new one should pass muster.

The new decision calls a halt to exploratory drilling by rigs using subsurface blow-out preventers (the kind that failed on the Deepwater Horizon) or surface blow-out preventers on floating rigs, and to issuance of new permits for that kind of drilling. Like the first moratorium, it does not restrict production from existing wells. It will …

July 9, 2010 by Holly Doremus

Cross-posted from Legal Planet.

A three-judge panel of the Fifth Circuit heard arguments Thursday on the Obama administration’s request that it stay the District Court’s injunction of the 6-month deepwater oil development moratorium, and by a 2-1 vote quickly rejected the request.

The moratorium halted any new drilling, and the granting of any new permits for drilling, in depths beyond 500 feet based on the Secretary of Interior’s finding that “deepwater drilling poses an unacceptable threat of serious and irreparable harm or damage to wildlife and the marine, coastal and human environment.” The District Court overturned the moratorium, finding that the Secretary had not adequately justified the breadth of the suspension.

The District Court’s decision to block the moratorium seems clearly wrong. Surely the Deepwater Horizon blowout, which the oil industry claims was entirely unexpected, together with the company’s inability to stem …

July 8, 2010 by Matthew Freeman

Over on Slate this weekend, William Saletan posted an Elena Kagan piece in which he describes a 1996 incident in which the future presumptive Supreme Court Justice, then working at the White House, commented on a draft statement on “partial birth abortion” by the American College of Obstetricians and Gynecologists (ACOG). 

Congress was then on the verge of banning certain abortion procedures lumped together under the umbrella of “partial birth,” a name made up by the right wing and not otherwise used by doctors. ACOG had drafted a statement saying that its select panel on the subject had concluded that while it could identify no circumstances under which the “intact D&X” procedure, which seemed to be the procedure the right wingers in Congress were after, “would be the only option to save the life or preserve the health of the woman…the potential exists that legislation prohibiting …

July 8, 2010 by Victor Flatt

On Tuesday, the EPA released its long awaited rule to replace the Bush era Clean Air Interstate Rule, invalidated by the DC Circuit in 2008’s North Carolina v. EPA. There are many things that could have been different or improved, but given the EPA’s need to get a rule out quickly to replace the existing rule, they have done a good job of addressing the flaws of the earlier rule and getting something in place.

The main problem with the previous CAIR was that in allowing full interstate trading of SOx and NOx, it was in violation of the CAA requirements in Section 110, that a state’s State Implementation Plan ensure that no other state’s attainment and maintenance is violated, and Section 126, which requires the EPA and states to control individual sources that cause a violation in another state.

In the new …

July 7, 2010 by Ben Somberg

Sorry to link to the Daily Show again, but I swear it's relevant. On last night's show, Lewis Black covered recent food safety and consumer product safety news.

"But knowingly selling us broken cars, poisoned medicines -- if I didn't know any better, I'd think these companies were just in for the money!"

July 6, 2010 by Holly Doremus

Cross-posted from Legal Planet.

Previously I wrote about the shortcomings of ESA consultation on the Deepwater Horizon and other offshore oil rigs. Today I take up the implications of the spill itself under the ESA.

At least one ESA lawsuit has already been filed, and at least partially resolved. The Animal Welfare Institute, Center for Biological Diversity, Turtle Island Restoration Network and Animal Legal Defense Fund filed a complaint on July 1, accusing BP and the Coast Guard of killing endangered and threatened sea turtles in the course of burning off oil slicks in the Gulf. This morning, the Christian Science Monitor reports that BP and the Coast Guard have agreed “to allow wildlife rescuers to pluck sea turtles out of corralled oil patches to keep them from being incinerated alive,” and in return the environmental groups have withdrawn their request to enjoin all controlled burning. The …

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Using Disclosure as a Smokescreen: How Behavioral Economics Can Deflect Regulation

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At Thirty Five, Endangered Species Treaty Has Mixed Record

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