Nov. 30, 2012 by Holly Doremus

What to Expect in the Logging Roads Case

Cross-posted from Legal Planet.

This coming Monday, Dec. 3, the U.S. Supreme Court will hear oral argument in the logging roads case. The case involves two consolidated petitions, Decker v. Northwest Environmental Defense Center and Georgia Pacific v. Northwest Environmental Defense Center , both challenging the same decision of the Ninth Circuit, Northwest Environmental Defense Center v. Brown, 640 F.3d 1063 (9th Cir. 2011). (Decker is brought on behalf of the state of Oregon, which owns the land and roads in question, Georgia Pacific on behalf of timber operators who hold logging rights on the land.) The narrow issue is whether the Ninth Circuit was right to hold that NPDES permits were required for stormwater runoff from Oregon logging roads channeled through ditches and conduits to navigable waters. The broader issues are the extent to which EPA has the discretion to narrow the scope of “point sources” subject to federal regulation, and the availability of citizen suits to enforce the CWA.

I think it’s likely the Ninth Circuit decision will be reversed, but I expect a narrow decision. With the recusal of Justice Breyer (whose brother sat by designation on the Ninth Circuit panel), the best environmental interests …

Nov. 29, 2012 by Holly Doremus

Cross-posted from Legal Planet.

The Washington Post reported this week that scientists think they can resurrect the Pinta Island subspecies of Galapagos tortoise whose last remaining member, “Lonesome George," died this summer. Scientists at Ecuador’s Galapagos National Park say they have found enough Pinta Island genetic material in tortoise on another nearby island that an intensive breeding program over 100 to 150 years could regenerate the pure Pinta Island subspecies.

It’s all very cool and sci-fi to think we might be able to regenerate extinct species (does anyone besides me remember Jurassic Park?). But from a policy perspective, the question is not can we do it, but should we? It’s the kind of question we’ll have to face more and more, with climate change radically changing the world’s habitats. What exactly do we want to conserve, and what level of resources are …

Nov. 28, 2012 by

Action on climate change should be one of the first things President Obama takes on in his second term. There are countless steps the President might take, but perhaps one of the easiest things for him to do on that front is to instruct the Office of Management and Budget (OMB) to release eight Department of Energy (DOE) rules regarding energy efficiency currently under OMB’s review. Regular readers will know that OMB is a kind of regulatory purgatory where rules can be held up seemingly indefinitely or sent back to the agencies responsible for them to be reconsidered in light of OMB’s widely questioned cost benefit analysis. As Earthjustice and others have noted, President Obama could make substantial progress on climate change by telling his own OMB that it needs to move on the rules.

Some of the DOE rules have been at OMB for …

Nov. 28, 2012 by Rena Steinzor

For a potentially earth-shattering move against one of the most notorious corporate environmental scofflaws in history, the Environmental Protection Agency (EPA) sure hid its light under a bushel this morning. The agency’s scant three-paragraph press release announced simply: “BP Temporarily Suspended from New Contracts with the Federal Government,” adding that “EPA is taking this action due to BP’s lack of business integrity as demonstrated by the company’s conduct with regard to the Deepwater Horizon blowout, oil spill and response.” As the headline suggests, the temporary suspension applies to new, but not existing, contracts with the government.

Don’t get me wrong, EPA’s move was in its own way a profile in courage for an agency that too often walks around with a target on its back, taking unwarranted hits from both its known foes—House Republicans—and from people who should be on …

Nov. 26, 2012 by Ben Somberg

CPR Member Scholar Noah Sachs published an op-ed in the Richmond Times-Dispatch this morning critiquing the Independent Agency Regulatory Analysis Act. That bill would allow the White House to review rules proposed by independent federal agencies. Writes Sachs:

Imagine if important government agencies, purposely designed by Congress to be insulated from political pressure, suddenly had to bend to White House wishes.

Campaign contributors might then try to influence Nuclear Regulatory Commission decisions on safety standards for aging nuclear plants. Big Wall Street donors might have a backdoor route to kill Securities and Exchange Commission regulations on stock fraud.

While the new bill aims for transparency, we're likely to get a black hole of decision-making instead. Far from improving government, the bill will make important government decisions subject to endless internal review and closed-door meetings with industry lobbyists.

Sachs argues that Virginia Senator Mark Warner, who has …

Nov. 21, 2012 by Thomas McGarity

One of the crowning legislative achievements of the Obama Administration’s first term was the enactment of the Food Safety Modernization Act. 

Like any safety statute, however, the new law will have no practical bite until the implementing rules are issued. In this case, that’s until the Food and Drug Administration (FDA) promulgates regulations fleshing out the obligations of growers, producers and importers of food.  Unfortunately, after almost two years, the regulations for the three most critical programs enacted by the new law have been written, but have not yet been promulgated.

On Thanksgiving Day, one set of implementing regulations will have been bottled up at the White House’s Office of Information and Regulatory Affairs (OIRA) for exactly one yearTwo other critical sets of regulations will pass the one-year milestone between Thanksgiving and December 9. 

Signed by President Obama in January 2011, the new …

Nov. 20, 2012 by Holly Doremus

Cross-posted from Legal Planet.

As already noted by Rick and Megan, last week BP pleaded guilty to 14 criminal counts arising from the 2010 Deepwater Horizon blowout in the Gulf of Mexico. Megan provided a good basic overview of the terms of the agreement. Here is the plea agreement itself. The amount of money BP has agreed to pay, in criminal fines and additional payments, has been the focus of most of the news coverage so far. The terms of BP’s probation have gotten less attention, but are well worth exploring.

Of course the amount of the fines and other payments matters. Never having had the experience of negotiating a plea agreement like this, I’m reluctant to speculate on whether the government could have gotten more out of BP. It’s too early to evaluate whether the punishment fits the offense, since civil sanctions and …

Nov. 16, 2012 by Robert Adler

For those who have not been following the news lately, a recent article reported the following: A large tropical storm attributed to “unseasonable rainfall” slammed into the coast and moved inland, leaving many dead or missing, tens of thousands of residents evacuated or homeless, and government disaster response agencies struggling to provide food, shelter, and other critical services.

According to the article, “disaster response teams helped to move people to higher ground in rubber boats and nearly 100 shelters were opened … to accommodate people fleeing the flood zone.” Trains and other transit systems were closed; some communities were completely cut off from help; and to make matters worse, more intense rain was expected later in the same week.

News reports about Hurricane Sandy? Actually, no. This news came from an article by Agence France-Presse about Cyclone Nilam, which struck the Indian states of Andhra Pradesh and Tamil …

Nov. 15, 2012 by Matt Shudtz

In January, USDA issued a proposed rule that would allow poultry slaughter facilities to increase the speed of their slaughter and evisceration lines as part of an effort to “modernize” the slaughtering process.  Today, I attended a meeting of the National Advisory Committee on Occupational Safety and Health (NACOSH) and asked for the committee’s help in stopping the rule, given its threats to workers’ health and safety.

The gist of the rule is that it would remove most USDA inspectors from the slaughter lines and shift their inspection responsibilities to company employees.  Because these changes would require costly alterations to the lines and potentially increase companies’ food safety liabilities, USDA had to sweeten the pot to entice companies to take advantage of the new system.  So, USDA proposed allowing companies to increase line speeds from an already astounding 90 birds per minute to a dizzying 175 …

Nov. 15, 2012 by Rena Steinzor

This post is based on an article I wrote with Anne Havemann entitled “Too Big to Obey: Why BP Should Be Debarred,” published in the William & Mary Environmental Law & Policy Review.

Attorney General Eric Holder and his lead prosecutor, Lanny Breuer, are deservedly running a victory lap in the immediate aftermath of their criminal settlement with BP.  The amount of money paid to settle the charges, $4.5 billion—is considerably larger than anything paid by past bad actors, although it represents just a few months of profit for the company.  In addition, the two top supervisors on duty at the rig when it exploded will be prosecuted for manslaughter, sending the message that line managers put their futures on the line when they worry more about sparing costs for the company than the safety of their workers.   But even these tough remedies fall far …

More on CPR's Work & Scholars.
Nov. 30, 2012

What to Expect in the Logging Roads Case

Nov. 29, 2012

Should We Revive an Extinct Galapagos Tortoise?

Nov. 28, 2012

One Easy Agenda Item on Climate: OMB Should Release DOE Energy Efficiency Rules

Nov. 28, 2012

Too Big to Obey: Whether BP Is De-barred Up to DOD and (Hopefully) the White House

Nov. 26, 2012

Noah Sachs Op-Ed: Independent Agency Regulatory Analysis Act Would Further Politicize Rulemaking

Nov. 21, 2012

Critical Food Safety Rules Still in Regulatory Limbo, Now Stuck at White House for a Full Year

Nov. 20, 2012

More on BP's Guilty Plea: It's Not Just About the Money