The most important lessons can be the hardest to learn. Sometimes they even take a crisis. We can hope that the sorry saga of Flint, Michigan's lead-poisoned water will be such a teachable moment for at least some of the anti-government crowd, finally driving home the point that government has a vital role in protecting health and safety, and that it can only play it if it takes the responsibility seriously and is provided the wherewithal to do its job properly. 

President Barack Obama has often been a champion of active government of the sort that was missing in action in Flint. History will surely regard him that way, with health care reform, climate change regulation, the auto industry bailout, the 2009 stimulus bill, and Dodd-Frank on the list of examples. But as is so often the case, a closer look tells a more conflicted tale …

In a merits opinion issued on June 21, 2016, the U.S. District Court for the District of Wyoming (Judge Skavdahl) held that the U.S. Bureau of Land Management--the agency tasked with protecting and preserving federal lands for multiple uses by the public--lacks the authority to regulate hydraulic fracturing ("fracking") on federally-owned and managed lands. Using a Chevron step 1 analysis (one standard used to review agencies' interpretation of the meaning of statutes that grant agencies authority), the court finds that "Congress has directly spoken to the issue and precluded federal agency authority to regulate hydraulic fracturing," with the exception of fracturing that uses diesel fuels. The court bases this erroneous conclusion on the Safe Drinking Water Act (SDWA)--an Act that governs Environmental Protection Agency and state authority over underground water sources. Under the SDWA, entities that inject substances underground must first obtain a permit …

One of the recurring questions in standing law is the extent to which Congress can change the application of the standing doctrine. A recent Supreme Court opinion in a non-environmental case sheds some light – not a lot, but some – on this recurring question.

The Court has made it clear that there is a constitutional core of the doctrine with three elements: a concrete injury in fact, a causal link between the injury and the defendant's conduct, and a reasonable prospect that a court could remedy the injury. But Congress may be able to mold the way these requirements are applied.

Spokeo, Inc. v. Robbins was about a violation of credit reporting requirements, a subject seemingly far removed from environmental law. The Court quoted Justice Kennedy's language in Lujan (an earlier environmental case) to the effect that Congress can provide remedies for injuries that were previously …

Earlier this month, revisions to the Toxic Substances Control Act (TSCA) cleared the Senate and now await President Obama's signature. TSCA's failure to provide EPA with meaningful authority to protect Americans from toxic chemicals was widely recognized, yet the path to revising the law was fraught with controversy. The chemical industry and public health and environmental advocates, as well as Democrats and Republicans in Congress, wrangled over a number of bills for years. The resulting legislation represents a compromise, and there are significant shortcomings in this revised approach to regulating toxic substances. 

Below are some of the most significant – and troubling – aspects of the law identified by Center for Progressive Reform Member Scholars and staff.

• Preemption of state legislative efforts to regulate chemical while EPA conducts safety assessment: Because TSCA, in its previous form, protected people so poorly, states took an active role in regulating …

This morning, the U.S. Environmental Protection Agency (EPA) released its annual assessments of progress made by the seven jurisdictions in the Chesapeake Bay watershed. The bottom line: nothing has really changed in terms of the content or tone from the previous annual assessments, and they do not appear to reflect a shift in strategy by EPA toward greater enforcement against lagging states under the "accountability framework" of the Chesapeake Bay Total Maximum Daily Load (Bay TMDL).

First, a quick summary of some of the highlights. EPA downgraded Delaware's agriculture sector from "ongoing oversight" (no significant concerns) to "enhanced oversight" (some concerns) because the state has been slow to issue permits and extend coverage under permits for Concentrated Animal Feeding Operations (CAFOs) – or industrial-scale poultry operations – and because Delaware failed to substantiate the nutrient management plan compliance levels that it has reported to the Chesapeake Bay …

This afternoon, Speaker Paul Ryan is scheduled to announce the House majority's latest plan to weaken the U.S. system of regulatory safeguards on which all Americans depend. The following is Center for Progressive Reform Senior Policy Analyst James Goodwin's reaction to this plan: 

Speaker Ryan and his anti-regulatory apostles in the House would have you believe that their latest attack strategy on our system of regulatory safeguards is a serious, forward-looking plan. In fact, everything it contains is not just old, but stale. The talking points are hackneyed; the so-called supporting research was debunked long ago; and the proposals it contains are bad ideas that have been trotted out countless times before. This plan would take us back to the laissez-faire days of the Gilded Age. An America run by robber barons didn't serve us well then, and it certainly wouldn't serve …

Originally published by the George Washington Law Review

The Supreme Court held in U.S. Army Corps of Engineers v. Hawkes Co.1 that a determination by the United States Army Corps of Engineers ("Corps") that the owners of land used for peat mining were obliged to apply to the Corps for a permit under the Clean Water Act ("CWA")2 before dredging or filling the land was a judicially reviewable final agency action. Although this conclusion seems unremarkable, the case potentially packs a more significant punch from the perspective of administrative and, especially, environmental law. Some background on the history of the Court's involvement with the relevant CWA permit program helps to understand why.

The Supreme Court has had a contentious relationship with the CWA, and in particular with its dredge and fill (or section 404) permit program since the dawn of the 21^{st …}

As I wrote earlier this week, environmental enforcement is not nearly as effective as it should be. EPA and others have been working on finding creative ways of obtaining compliance, often with the help of new technology.

One aspect of enforcement that has become clear is the need to focus on small, dispersed sources that may cumulatively cause major problems. EPA has focused its past efforts on the largest non-complying facilities. But EPA has found serious noncompliance in terms of water pollution at about 45 percent of smaller facilities, with significant impacts on water quality (especially where there are clusters of facilities. Small, dispersed sources can also be major contributors to toxic air pollutants. Often, smaller sources simply don't know what the rules are or what they need to do to comply. In some industries with numerous small emitters, EPA simply sent letters to firms with …