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March 28, 2012 by Alice Kaswan

Greenhouse Gas Standards for New Power Plants: Glass Half-Full and Half-Empty

With congressional action on climate change at a standstill, EPA’s new source performance standards (NSPSs) for greenhouse gases (GHGs) from new power plants should be applauded.  As required by the Clean Air Act, the agency is doggedly moving forward to establish emission standards for GHGs, air pollutants that unquestionably endanger human health and welfare. EPA deserves praise for setting a strong standard and proposing it notwithstanding political heat. The glass is half-full.

While attention is properly focused on what EPA has accomplished, it is important not to lose sight of what could be better. One concern is the standard’s flexibility: it lets new power plants (presumably coal-fired) violate the standard now and catch up in the future (presumably through the installation of carbon capture and storage (CCS)). In the somewhat unlikely event that utilities take advantage of that flexibility, it could give coal-fired power continued and environmentally damaging new life. A second, and more fundamental concern, is EPA’s silence on existing power plants. Notwithstanding Clean Air Act requirements, the agency has indicated that it has “no plans” to establish emission guidelines on existing power plants, the largest single source of GHG emissions in the United States. The …

March 26, 2012 by Holly Doremus
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Cross-posted from Legal Planet.

Regular readers of this blog know that on January 13, 2011, EPA vetoed a Clean Water Act section 404 permit issued by the Corp of Engineers for valley fill at the Spruce No. 1 mountaintop removal mine project in West Virginia. This was only the 13th time EPA had used its veto power, and the first time it had vetoed a permit after it was formally issued. I wrote at the time: “Expect litigation, and expect it to focus on the timing of the veto.”

It’s nice, sort of, to have my instincts confirmed. Sure enough, the mining company, Mingo Logan, challenged the veto precisely on the grounds that EPA lacked authority to revoke a permit once issued. On Friday the D.C. District Court agreed with that argument. Here’s how the court summarized its ruling:

The Court concludes that EPA …

March 24, 2012 by Joel Mintz
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Earlier this week, the U.S. Supreme Court handed down its much-anticipated decision in Sackett v. Environmental Protection Agency. In a unanimous decision--key features of which are summarized in a thoughtful post by Nina Mendelson--the Court held that the plaintiff landowner had a right to challenge the Clean Water Act administrative compliance order (ACO) which EPA had issued to it under the Administrative Procedure Act. The Court's opinion is narrowly drawn--in some ways, perhaps, an immediate benefit to EPA and other agencies who regularly issue administrative orders to enforce environmental statutes. At the same time, however, the Sackett decision raises troubling questions regarding the future direction of the law in this area, along with potentially vexing practical difficulties for EPA's enforcement program.

The case certainly could have come out worse. The Supreme Court's opinion avoided all of the plaintiff's constitutional claims, and it …

March 21, 2012 by Nina Mendelson
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In the Sackett v. EPA decision today, the Supreme Court rejected a broad argument that the Sacketts' constitutional due process rights had been violated when they could not go to court immediately to challenge an EPA order requiring them to remove fill and replant vegetation on their property. But the Court did hold that under the relevant statutes – the Clean Water Act and a broader statute authorizing judicial review of agency action, the Administrative Procedure Act – the Sacketts were entitled to judicial review of EPA's order as soon as EPA issued it. It rejected the agency's arguments that the Act ought to be understood to preclude judicial review until EPA brought an enforcement action in court. In so doing, it limited the usefulness of an important EPA enforcement tool.

The Sacketts' side of the case had a number of sympathetic aspects. Two individuals were up …

March 20, 2012 by Rena Steinzor
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This post was written by CPR President Rena Steinzor and CPR Policy Analyst James Goodwin.

Earlier today, OIRA Administrator Cass Sunstein released a new memorandum to agencies directing them to consider and account for the “cumulative” costs of their regulations.  Attacking the cumulative costs of regulation has been a favored tactic among regulated industries and their allies in Congress (it's a feature in many anti-regulatory bills, such as the Regulatory Accountability Act).  Rather than responding forcefully to the faulty cumulative costs premise, the Obama Administration has instead bought into it. The memo outlines principles and not specific technical prescriptions for how rules will be written, but it’s likely the agencies will follow the directions from the White House. What we’re left with is a solution in search of a problem that could further delay or derail badly needed solutions to real problems. 

As with …

March 20, 2012 by Sidney Shapiro
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House GOP leaders may vote as early as this week on legislation that would eliminate the Independent Payment Advisory Board (IPAB), a cost-saving measure that was established as part of the national health care reform Congress passed in 2010.  House leaders have also attached national restrictions on the right of patients to recover damages for medical malpractice (H.R. 5) to the IPAB bill, with the joint bill being called H.R. 5.  The sponsors of the bills allege that the savings from tort reform will replace the money that would be lost if the cost savings board is eliminated.  The combination of the two measures is pure politics.  Repeal of the cost-savings board enjoyed some bipartisan support before GOP leaders attached the tort restrictions to it.  Democrats are unwilling to vote for a bill that also limits the rights of tort victims.  GOP leaders therefore hope …

March 19, 2012 by Sidney Shapiro
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On Tuesday, the House Judiciary committee is marking up the Regulatory Freeze for Jobs Act (H.R. 4078), which would block virtually any “significant regulatory action”—basically, any step toward promulgating any regulation that has a large economic impact or is otherwise controversial— as long as unemployment is over 6 percent.   Rather than support initiatives that actually help the unemployed, a band of House Republicans prefer another cheap political trick here.  The reality is that a moratorium would leave millions of Americans more vulnerable to health, safety, environmental, and economic risks, without improving the economy at all.  In fact, the bill has the potential to shrink economic activity, not grow it. 

To begin with, all of the economic studies agree:  regulation does not cause a net loss in jobs. As other CPR Member Scholars and I have discussed (see herehereherehere and here, for example …

March 12, 2012 by Daniel Farber
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A conventional approach to safety is based on the concept of design events. A building code might say, for example, that a building should be able to survive a 7.0 earthquake. This approach has been basic to the regulation of nuclear reactors. As the interim report of the post-Fukushima NRC task force explains:

The regulation also requires that design bases . . . reflect (1) appropriate consideration of the most severe of the natural phenomena that have been historically reported for the site and surrounding region, with sufficient margin for the limited accuracy and quantity of the historical data and the period of time in which the data have been accumulated, (2) appropriate combinations of the effects of normal and accident conditions with the effects of the natural phenomena, and (3) the importance of the safety functions to be performed. p. 25

The report points out two flaws with …

March 9, 2012 by James Goodwin
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Inside EPA is reporting that yet another critical EPA rulemaking is now being delayed indefinitely.  This time it’s the agency’s rulemaking to codify a draft guidance clarifying whether Clean Water Act protections apply to wetlands and other marginal waters.

EPA had projected on its online rulemaking gateway that it expected to issue a proposed rule this month. In the recent  Issue Alert that CPR President Rena Steinzor and I wrote, we were skeptical about this deadline, because the EPA has not yet even sent a draft proposal to the White House Office of Information and Regulatory Affairs (OIRA) for centralized review—a process that often takes several months, and in some cases well over a year.

The Inside EPA article notes that the EPA’s rulemaking gateway was changed at some point since March 5th, so that it now provides no deadline for issuing a …

March 8, 2012 by Sidney Shapiro
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In 1975, Indiana lawmakers joined a small but growing group of state legislatures passing aggressive medical malpractice “reforms.”  Indiana’s law capped damages that victims of medical malpractice can recover at $500,000 and eliminated damages for pain-and-suffering altogether, Frank Cornelius, a lobbyist for the Insurance Institute of Indiana, played a role in helping pass this legislation.  Twenty years later, Cornelius suffered a tragic series of negligent medical errors that left him wheelchair-bound, dependent on a respirator to breathe, and requiring a morphine drip for continuous physical pain.  Facing medical expenses and lost wages of $5 million if he lived to retirement age, Cornelius experienced first-hand the effects of his lobbying for the insurance industry:  he was forced to settle his claims for the $500,000 limit.  In an op-ed in The New York Times several years later, Mr. Cornelius told his story, expressing regret and noting …

CPR HOMEPAGE
More on CPR's Work & Scholars.
March 28, 2012

Greenhouse Gas Standards for New Power Plants: Glass Half-Full and Half-Empty

March 26, 2012

Court Skeptical of EPA's Section 404 Role Overturns Mine Veto

March 24, 2012

After Sackett: What Next for Administrative Compliance Orders?

March 21, 2012

SCOTUS Decision in Sackett v. EPA Weakens Government's Ability to Respond to Urgent Threats to Water Quality

March 20, 2012

Obama Administration's Latest Sop to the Anti-Regulatory Crowd: Buying the Cumulative Burden Pitch

March 20, 2012

Limiting the Rights of Medical Malpractice Victims: House GOP Leaders Make a Bad Idea Worse

March 19, 2012

The Regulatory Freeze Bill: Cynical Political Posturing That Would Harm the Economy