Feb. 29, 2016 by Rena Steinzor

Steinzor Reacts to SCOTUS Chesapeake Bay Case

The Supreme Court today denied certiorari in a case challenging the watershed-wide effort led by the EPA to reduce pollution flowing into the Chesapeake Bay. The Court's action leaves standing a lower court ruling upholding the effort. CPR Member Scholar Rena Steinzor, Professor of Law at the University of Maryland Francis King Carey School of Law, issued the following reaction:

"The Supreme Court's decision is a milestone victory for the restoration of the Chesapeake Bay and the thousands of local waters in the Bay watershed. Today's decision should at last put an end to any efforts to evade responsibility for reducing nutrient and sediment pollution. The Bay cleanup effort still has a very long way to go, with a lot of tough decisions and hard work ahead, but the Court's ruling should give hope to the millions of people in this region who have had to live with degraded and polluted waters for decades. Moreover, the decision is a clear affirmation of the plain meaning of the Clean Water Act and EPA's authority to enforce it. As the Farm Bureau has argued, it has nationwide implications."

Feb. 25, 2016 by Daniel Farber

There’s already been a lot written about how Justice Scalia’s untimely death will affect pending cases, not to mention speculation about the possible nominees to replace him. Less attention has been given to the effect on the lower courts. Yet Justice Scalia’s departure gives liberal judges in lower courts more freedom than they’ve had in the past. Here, I’m specifically thinking of the D.C. Circuit and the Ninth Circuit, which between them are the most important forums for environmental litigation. It now looks like it could be at least a year until a successor is named. The 4-4 split gives lower courts more scope to take the initiative.

The main reason is that it is now much less likely that the Supreme Court will review liberal lower court decisions. In the past, the Chief Justice and Justices Thomas and Alito could …

Feb. 24, 2016 by Katie Tracy

The Occupational Safety and Health Administration (OSHA) has informally announced that it is unlikely to finalize its long-awaited rule to limit workers' exposure to respirable crystalline silica by the month's end, as the agency had expected. OSHA's deputy assistant secretary of labor for occupational safety and health, Jordan Barab, told Politico on Friday, Feb. 18, that he "can pretty much guarantee" the rule will be delayed, but he expects "it will be out soon."

The silica rule, which OSHA proposed in Sept. 2013 after 20 years of development, cannot come soon enough for workers and their families. Exposure to these tiny dust particles can cause an incurable and fatal lung disease called "silicosis," and other debilitating health effects. But will the final rule demand that employers' take genuine responsibility for workers' health by implementing effective controls to reduce hazardous silica exposures? Or will OSHA have …

Feb. 23, 2016 by Evan Isaacson

Legislative committees in both the Maryland House and Senate are holding hearings this week on the Poultry Litter Management Act, a bill that has been attracting a lot of attention in Maryland and beyond. I have been asked to testify as part of a panel featuring representatives of the United States Geological Survey and the Chesapeake Bay Foundation. The focus of my testimony will be the problems posed by farm animal manure – in this case, poultry litter on Maryland’s Eastern Shore. 

You can read the full testimony here, but the crux of it is that the creation of an effective and comprehensive manure management policy is one of the biggest missing pieces in the puzzle that is the Chesapeake Bay Total Maximum Daily Load (Bay TMDL). Simply put, addressing the massive nutrient imbalance in areas like Maryland’s Eastern Shore and the greater Delmarva Peninsula caused …

Feb. 22, 2016 by Robert Verchick

Justice Antonin Scalia’s Supreme Court chair sits empty, draped in black wool to honor a man whose intellect and fire-breathing keyboard helped reshape the nation’s political landscape. Depending on how things go, that chair could be empty for a while. Unlike more recent nominations to replace a Justice, a nomination from President Obama could reorient the Court away from its long-standing conservative tilt toward something more progressive or even merely moderate. In the current session alone, important cases involving affirmative action, abortion, birth control, and immigration hang in the balance.

Add the environment to your list of hot topics. Simmering questions about climate change, water quality, and wetlands will be bubbling up very soon. And the next occupant of that vacant chair will have a lot to say about the planet’s fate, although I’m sure less vividly than Justice Scalia might have put …

Feb. 19, 2016 by Mollie Rosenzweig

At a time when consumers are demanding greater transparency in the food system – and some food companies are delivering by means of genetically modified organism labeling and removal of artificial food dyes — a troubling North Carolina law that runs counter to that goal has recently gone into effect. The state’s so-called “ag-gag” law prohibits whistleblowers from making audio or video recordings inside industrial agricultural facilities. Following the success of a similar suit in Idaho last year, consumer protection advocates and government watchdog groups have brought a constitutional challenge to the law in a North Carolina federal district court.

The public has been benefitting from undercover documentation of conditions inside food production facilities since Upton Sinclair wrote The Jungle at the turn of the last century. In recent years, undercover videos at animal agriculture facilities have exposed horrific instances of animal abuse — sick turkeys thrown into grinding …

Feb. 18, 2016 by Evan Isaacson

On May 12, 2009, the federal government finally got serious about protecting the Chesapeake Bay. That’s when President Obama signed Executive Order 13508 on Chesapeake Bay Protection and Restoration, which declared that the federal government would put its shoulder into the multi-state effort to restore the Bay. Taking turns at a podium perched on a bluff overlooking the Potomac River, the Governors of Maryland and Virginia and the Mayor of Washington D.C. praised the President that day for ordering the U.S. Environmental Protection Agency (EPA) and other federal agencies to take on this new leadership role that would culminate in the Chesapeake Bay Total Maximum Daily Load (Bay TMDL) the following year.

When it was EPA Administrator Lisa Jackson’s turn at the microphone, she pledged that EPA would take a tough stance when necessary to compel states to finally follow through with their …

Feb. 16, 2016 by Daniel Farber

Scalia's decisions were almost unremittingly anti-environmental.

Over the past three decades, Justice Scalia did much to shape environmental law, nearly always in a conservative direction.  Because of the importance of his rulings, environmental lawyers and scholars are all familiar with his work.  But for the benefit of others, I thought it might be helpful to summarize his major environmental decisions.  The upshot was to restrict EPA’s authority to interpret environmental statutes, make property rights a stronger bulwark against environmental protection, restrict the ability of environmental groups to go to court, and limit federal authority over rivers and wetlands.

Administrative law.  The Chevron test says that an agency’s interpretation of a statute is entitled to deference.  It can be set aside only if it is contrary to an unambiguous statute or if it is an unreasonable interpretation of an ambiguous statute.  There are only three …

Feb. 12, 2016 by James Goodwin

In case you didn’t get the memo:  President Obama is entering the last year of his final term in office, so now we’re all supposed to be panicking over a dreaded phenomenon known as “midnight regulations.”  According to legend, midnight rulemaking takes place when outgoing administrations rush out a bunch of regulations during their last few days in order to burnish their legacy or make concrete several of their policy priorities in ways that would be difficult for a successor—presumably from a different party—to undo.  The legend further holds that because the rules are “rushed,” they are somehow of inferior quality.

Over the last few days, several antiregulatory commentators have issued dire warnings about midnight regulations (see here and here), and even the House Science Committee went to the trouble of holding a hearing on the subject just the other day. 

Scared yet …

Feb. 11, 2016 by Matthew Freeman

Last month, Politico’s Michael Grunwald published what I suspect is going to be a first draft of history’s judgment of Barack Obama’s presidency. He writes that “a review of his record shows that the Obama era has produced much more sweeping change than most of his supporters or detractors realize.”

Grunwald runs a long list of the President’s achievements, including Obamacare, the automobile industry bailout, the stimulus bill that kept the economy from falling off of a cliff, an overhaul of the boondoggle that was the federal student loan program, rejection of the Keystone XL pipeline, serious (at last!) steps to combat climate change paving the way for an international agreement that could actually make a difference, an energy revolution that has significantly reduced U.S. reliance on dirty coal and foreign oil while boosting production and use of renewables, the end of …

More on CPR's Work & Scholars.
Feb. 29, 2016

Steinzor Reacts to SCOTUS Chesapeake Bay Case

Feb. 25, 2016

Unleashing the Lower Courts

Feb. 24, 2016

More Delay for OSHA's New Silica Rule

Feb. 23, 2016

Testimony: Maryland Needs Effective Manure Management Policies to Restore Watersheds

Feb. 22, 2016

Justice Scalia and the American Eco-Kulturkampf

Feb. 19, 2016

What Are 'Ag-Gag' Law Proponents Trying to Hide?

Feb. 18, 2016

Another Strong DOJ Settlement on Stormwater Pollution - Outside of the Chesapeake Bay Watershed