In November 2008, with Riegel v. Medtronic recently decided, bills introduced into Congress to overturn its effect, and Wyeth v. Levine about to be argued in the Supreme Court, the President of the American Bar Association created a task force to review ABA policies regarding preemption of state tort law. The composition of the task force was equally split between those who generally favor preemption and those who generally oppose it and included both private practitioners and academics (I was one of those academics). Earlier this month the task force unanimously presented its recommendations to the House of Delegates of the ABA, the policy making body of the ABA, and the House adopted those recommendations by an overwhelming majority.

Eschewing any attempt to take a substantive position on the desirability of preemption of state tort law or the lack thereof, the task force focused on the procedures …

Cross-posted from Legal Planet.

Administrative agencies sometimes issue regulations that have the effect of overruling state law — and sometimes that is the sole effect of the regulation.  This proved quite controversial during the Bush Administration, which used agency rulemaking efforts to cut back on state tort law.  The ABA has a adopted a new resolution dealing with this issue.  The resolution reads:

RESOLVED, That the American Bar Association urges Congress to address foreseeable preemption issues clearly and explicitly when it enacts a statute that has the potential to displace, supplement, or otherwise affect state tort law by:

(1) clearly and explicitly stating when it intends to preempt state tort law; and,

(2) clearly and explicitly setting forth the extent of the preemption of state tort law it intends, and the extent to which, through a savings clause or other means, it intends not to preempt state tort …

In June, I wrote about a settlement between EPA and environmental groups that requires EPA to publish guidance on the implementation of National Pollutant Discharge Elimination System (NPDES) permits for concentrated animal feeding operations (CAFOs) and to propose a rule to collect more information on these operations. In that post, I cited numbers from EPA showing that states in the Chesapeake Bay Watershed had many CAFOs without NPDES permits; for some of the states, not a single CAFO was permitted. Maryland had an estimated 220 CAFOs and only 7 with NPDES CAFO permits.

In response, the Maryland Department of Environment’s Secretary Shari T. Wilson provided an update to the status of the state’s CAFO permitting program, showing nearly twice as many CAFOs and improvements in CAFO permitting statistics. The updated numbers are:

Progress on CAFO Permits (as of June 30, 2010)

CPR Member Scholar Rebecca Bratspies was recently on Chicago Public Radio's Worldview talking about oil spills in the developing world, the power of big companies in small nations, and the broader picture of resource extraction and its effects on people.

Said Bratspies:

"any oil company that doesn't cut the same corners that the worst player does is going to be at a competitive disadvantage, and that creates a snowball effect, of choices that are not sustainable and choices that are not about doing things in a responsible fashion."

In the past 15 months, the combination of President Obama’s Chesapeake Bay Protection and Restoration Executive Order and the EPA’s Bay-wide Total Maximum Daily Load (TMDL) process has established a framework for ensuring accountability and success in Bay restoration efforts. No aspect of this new framework is more important than the Bay states’ and the District of Columbia’s Watershed Implementation Plans (WIPs), which will demonstrate how they will meet the pollution targets in the applicable TMDLs. While the soundness of states’ WIPs depends on a broad array of technical, financial, and administrative factors, our bottom line expectation is that states write clear, objective, and transparent plans so that all watershed partners achieve their TMDL pollution reductions and ultimately restore the Chesapeake Bay. These WIPs will also enable the public to vigorously monitor the progress in meeting those commitments.

The Center for Progressive Reform has …

It turns out there’s more than one way an offshore oil rig can kill a fish. Even when they’re not spewing oil into the ocean, oil rigs kill vast numbers of fish and other aquatic organisms in their daily operations by sucking them up into their cooling water intake systems, where they get squashed against screens and otherwise beat up by the mechanism.   Power plants do it too, as does any industrial facility that circulates water for cooling. Congress recognized this problem four decades ago and so put a specific provision in the Clean Water Act directing the EPA to regulate cooling water intake structures. But there’s been a fight raging for years about just how EPA should carry out those responsibilities. 

You may remember that the U.S. Supreme Court weighed in on this controversy last year in Entergy Corp. v. Riverkeeper, largely …

Cross-posted from Flatt Out Environmental.

As expected, the EPA's "tailoring rule," under which it proposes to regulate stationary sources of greenhouse gases under the Clean Air Act (CAA) only if they produce over 75,000 tons of carbon dioxide equivalent forcing per year, has been challenged in court by numerous organizations. These include industry, several states (the usual suspects including Texas), and more surprisingly several environmental organizations.

The crux of industry and state challenges to the tailoring rule is that it is illegal pure and simple. Specifically, the challenges note that the CAA requires that when the EPA regulates stationary sources under the CAA, that it do so for sources that emit over either 100 or 250 tons per year. Of course, industry doesn't really want all of these smaller sources regulated, but they want to make it virtually impossible for EPA to regulate at …

The Minerals Managements Service's coziness with an industry it was supposed to be monitoring has brought attention back to an all-too-pervasive problem: regulatory agencies becoming "captured" by the regulated industries.

This morning the Senate Judiciary Committee's Subcommittee on Administrative Oversight and the Courts is holding a hearing on “Protecting the Public Interest: Understanding the Threat of Agency Capture.” CPR Member Scholar Sidney Shapiro is testifying about the nature and extent of agency capture, and what Congress can do about it. (There's also a news release.)

Shapiro says there are three preliminary types of capture:

• Political Capture occurs when an agency fails to protect the public and the environment because regulators friendly to industry block regulatory efforts or do not enforce the laws and regulations then in effect.
• Representational Capture occurs when industry representatives regularly appear before an agency, offering detailed comments and criticisms, while …