The Clean Water Act in the Crosshairs
Originally published on Environmental Law Prof Blog by CPR Member Scholar Dave Owen
Today, the United States Supreme Court released its opinion in US Army Corps of Engineers v. Hawkes, Co. The key question in Hawkes was whether a Clean Water Act jurisdictional determination – that is, a determination about whether an area does or does not contain waters subject to federal regulatory jurisdiction – is a final agency action within the meaning of the Administrative Procedure Act. According to a unanimous court, a jurisdictional determination is indeed final agency action.
The majority opinion, written by Justice Roberts, presents the kind of short, businesslike analysis one typically associates with an uncontroversial case. But then comes Justice Kennedy's concurrence, and it's a doozy. In three paragraphs, Justice Kennedy (joined, perhaps not so surprisingly, by Justices Alito and Thomas) asserts that "the reach and systemic consequences of the Clean Water Act remain a cause for concern" that "the act's reach is 'notoriously unclear'" (quoting Justice Alito's concurrence in Sackett v. EPA); that the Clean Water Act holds "ominous reach" and that the act "continues to raise troubling questions regarding the Government's power to cast doubt on the full use and enjoyment of private property …
The Environmental Protection Agency's (EPA) Clean Power Plan – the agency's bold attempt to use the Clean Air Act to protect our health and the environment by regulating greenhouse gas emissions from new and existing power plants – has been challenged in court by some 28 states, 205 members of Congress, electric utilities, coal companies and other industries, some labor unions, and a few conservative, nonprofit law firms. In response, EPA's rule has been defended by the agency itself, 18 states, more than 200 current and former members of Congress, dozens of cities and counties, numerous environmental and public health organizations, certain industries and labor unions, climate scientists, electric grid experts, two former EPA administrators, and others.
The ongoing litigation – now scheduled for a full-court (or en banc) oral argument before the D.C. Circuit in September – seems likely to be ultimately resolved by the U …
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- Research and promote best practices for adapting to climate change, with special emphasis on protecting …
This morning, the U.S. Government Accountability Office (GAO) released a report finding that hazardous working conditions across the meat and poultry industry put workers at risk of on-the-job injuries and illnesses. While injury and illness rates reportedly declined in the decade from 2004 to 2013, GAO emphasizes that the decrease might not be because of improved working conditions in the industry. Rather, the drop is likely due to data-gathering challenges at the Department of Labor and underreporting across the industry.
GAO last looked at working conditions in the meat and poultry industry in 2005, when it found "that the meat and poultry slaughtering and processing industry was one of the most hazardous in the United States. . . ." GAO's new report reiterates its 2005 findings about common hazards found in the industry, including "hazards associated with musculoskeletal disorders, chemical hazards, biological hazards from pathogens and animals, and …
This afternoon, the Fisheries, Water, and Wildlife Subcommittee of the Senate Environment and Public Works Committee will convene a hearing on a topic that is fast becoming the congressional conservative equivalent of talking about the weather: the Environmental Protection Agency's (EPA) Clean Water Rule.
With the provocative title of "Erosion of Exemptions and Expansion of Federal Control – Implementation of the Definition of Waters of the United States," the hearing is unlikely to provide a sober or thoughtful forum for evaluating the rule's merits. Nevertheless, Center for Progressive Reform Member Scholar Bill Buzbee, who has been tracking this critical safeguard for several years, will do his best to keep the proceedings grounded in reality by offering testimony that rebuts the many "legally and factually erroneous" attacks that are now frequently made against the rule.
Corporate polluters and their allies in Congress have a knack for conjuring controversy …
This post has also been published on The Huffington Post.
Within the next few days, Congress is likely to enact the first update of a major environmental statute in many years. Widely hailed as a bipartisan compromise, legislation to amend the Toxic Substances Control Act (TSCA, pronounced like the opera Tosca) was made possible by the steely and relentless determination of the U.S. chemical industry. The deal places burdens on the Environmental Protection Agency (EPA) that will undermine public health and environmental protections for many years to come.
A well-funded, politically empowered EPA that employed the best and the brightest of American scientists might be able to make lemonade out of the lemons scattered throughout this unfortunate legislation. But it's far more likely that the agency we have today will soon become mired in "paralysis-by-analysis" before it takes action and a flood of litigation after …
With the congressional majority continuing to gut enforcement budgets, forcing federal environmental and workplace safety agencies to cut staff, criminal prosecution of corporate bad actors is more important than ever. That's the thrust of Center for Progressive Reform Member Scholar Rena Steinzor's commentary in the May/June issue of The Environmental Forum, the policy journal of the Environmental Law Institute.
As Steinzor notes in the piece:
The BP oil spill and Volkswagen emissions cheating scandals, by their size and audacity, should motivate significant changes in the approach to criminal environmental enforcement, and if those changes make the federal Department of Justice more aggressive, they will come just in time, because EPA and the states’ routine civil enforcement is arguably in worse shape than at any time since the agency was created 46 years ago. EPA has endured a decade of deep budget cuts …
Back in March, the Occupational Safety and Health Administration (OSHA) finalized its long-awaited silica standard, requiring employers to reduce workers' exposure to the toxic, cancer-causing dust so common to construction and fracking sites, among other workplaces. OSHA estimates that the new standard will prevent more than 600 deaths and 900 new cases of silicosis annually. That is certainly commendable, but the kudos would be more heartfelt if the new standard had been adopted decades earlier and if it fully addressed the significant health risks to workers.
The unconscionable delays and unjustified concessions awarded to industry at the expense of workers' health and safety are hardly unique to the silica standard; rather, they are the product of our broken regulatory process, which is riddled with analytical requirements designed to generate business-friendly outcomes.
In the case of the silica standard, OSHA set the permissible exposure level (PEL) at 50 …
Clean water: We can't take it for granted, as the people of Flint, Michigan, can attest. And they're not alone. In too many communities across the nation, drinking water fails to meet minimum safety standards, forcing consumers to buy bottled water and avoid the stuff coming out of their taps.
We cannot say that we didn't see this coming. Part of the problem is that, as a society, we have always undervalued clean water. Municipal water rates only pass along a fraction of the total cost – the true cost – of the enormously complex endeavor of inserting ourselves into the natural hydrologic cycle. Nature does not recognize the distinction between "drinking water" and "wastewater." Expecting safe and clean drinking water when you put your glass under a tap requires the expensive task of managing water from source to tap to toilet and back.
For much of modern …
The growing problem of economic inequality in the United States continues to draw significant attention – and for good reason. By 2011, America's top 1 percent owned more than 40 percent of the nation's wealth, and ours ranks as one of the most unequal economies among developed countries. Meanwhile, the median wage rate for workers has remained largely unchanged in real terms over the last 40 years – even as worker productivity has grown at a steady clip – contributing to the largest gap in decades between high-wage earners and the rest of us.
Several critical legal, social, and political institutions play a role in contributing to and reinforcing the growing chasm that separates the wealthy few from the rest of us. One that is overlooked, but no less important, is the U.S. regulatory system.
When working properly, the regulatory system implements safeguards that help ensure that …
