March 30, 2018 by Joel Eisen

Coal and Nuclear Plant Bailout Would Be Unjustified Use of DOE's Emergency Authority

It's no secret that the Trump administration and coal companies have drawn a bullseye on reversing coal's declining fortunes in wholesale electricity markets, where competition and inexpensive natural gas have driven coal's market share down from 50 percent in 1990 to about 30 percent today. Feeling bullish about their prospects in a sympathetic administration, owners of coal and nuclear plants have tried to extract subsidies to prevent what they view as premature retirements of large power plants. 

This January, the Federal Energy Regulatory Commission (FERC) rejected the most overt bailout grab, a proposed rule originating from the Department of Energy (DOE) under an unusual process provided for in section 403 of the DOE Act. That proposal would have allowed plants that can store 90 days of fuel onsite (principally coal and nuclear plants) to recover all their costs – not normally the case in wholesale electricity markets that sell at market prices – on the theory that they are indispensable to keeping the grid operating reliably. FERC rejected the DOE notice of proposed rulemaking (NOPR) for numerous reasons, including failure to develop a proper record that existing market prices are not "just and reasonable" under the Federal Power Act (FPA). 

The NOPR's …

March 29, 2018 by Evan Isaacson

This post is part of an ongoing series on the midpoint assessment and long-term goals of the Chesapeake Bay cleanup effort.

In my last post, I described how a database housed by the Maryland Department of the Environment allows tracking of land development activities in real time. This database not only gives us the ability to track the recent scale and pattern of habitat destruction in Maryland, but it also can be used by regulators to build a tool that will allow the state to meet its commitment under the Chesapeake Bay restoration framework to account for and offset the growth in Bay pollution from new sources. 

From a water quality perspective, land conversion involves two potential problems. The first problem comes from the destruction of the pre-development landscape, which is often natural and helps capture rain and filter pollutants before they can run off into the …

March 28, 2018 by

This post is part of an ongoing series on the midpoint assessment and long-term goals of the Chesapeake Bay cleanup effort.

In a recent post, I described the broad failure of Chesapeake Bay states to follow EPA's basic expectations to account for pollution growth under the restoration framework known as the Bay TMDL. This failure is one important contributor to the current state of the Bay restoration, which is years behind schedule. If states don't hold the line on new pollution by offsetting or otherwise accounting for growth, their jobs only become that much more difficult, and the final restoration of the Bay gets that much further out of reach. In this post and the next, I focus more closely on one state – Maryland – to examine how it responded to EPA's expectation to account for growth and demonstrate what a year of unchecked growth …

March 27, 2018 by Rena Steinzor

Originally published on The Regulatory Review. Reprinted with permission.

The spirited conservative attack on regulatory guidance is both puzzling and hypocritical. Admittedly, agencies sometimes issue guidance to avoid the quicksand of informal rulemaking. But the law makes clear that without full-dress procedure, guidance can never replace rules and statutes in enforcement actions. Remedying agency overreach in the rare circumstances when enforcement cases are based primarily on guidance is a straightforward legal matter—defendants have only to tell their problems to a judge. Given the acute problems of hollow government and browbeaten civil servants these days, an irate defendant likely need only threaten to sue to compel an agency’s general counsel to back down.

The attack on guidance, like many other aspects of the latest chapter in the ongoing war on regulation, is also hypocritical. A huge swath of regulation was designed and is implemented to protect …

March 26, 2018 by Katie Tracy

Maryland's Occupational Safety and Health division (MOSH) is struggling to carry out its mission of ensuring the health and safety of Maryland workers, according to CPR's analysis of a mandatory performance report the agency provided to the state legislature late last year.

The Maryland legislature mandated the report as a condition of releasing $250,000 of MOSH's FY 2018 funds. Our review of the report and other agency materials leads us to conclude that the agency's limited budget is a key culprit in its shortcomings in recent years. Namely, MOSH is struggling with significant turnover among health and safety inspectors, and this management challenge is compounded by resource shortfalls. Without enough inspectors, MOSH is failing to meet its inspection targets, leaving too many employers to police themselves and putting workers at risk. MOSH is also declining to update its regulatory standards on a …

March 21, 2018 by Evan Isaacson

This post is part of an ongoing series on the midpoint assessment and long-term goals of the Chesapeake Bay cleanup effort. 

A few weeks ago, I discussed why the periodic written "expectations" from the Environmental Protection Agency (EPA) are critically important to the Chesapeake Bay's restoration. These expectations communicate to the state and federal partners in the Chesapeake cleanup effort what they need to do and when in order to implement the coordinated plan of action necessary to reach the cleanup plan's interim and final reduction targets. This includes the fundamental expectation that states account for future pollution growth as they work to reduce existing pollution under the Chesapeake Bay Total Maximum Daily Load (Bay TMDL) cleanup plan. 

It doesn't take any special knowledge of TMDL policy or practice to understand why it is imperative to deal with new pollution while simultaneously addressing ongoing pollution. If you …

March 19, 2018 by David Flores

This post is the first in a forthcoming series about climate change and the increasing risk of floods releasing toxic chemicals from industrial facilities in Virginia.

At the tail end of winter, a succession of "bomb cyclones" and nor'easters has brought fierce winds and surging coastal flooding to the mid-Atlantic and Northeast. These storms remind us of the deepening vulnerability of our coastal and riverfront communities and infrastructure to intensifying extreme weather and flooding. This "freakish" winter weather comes just six months after a previously unimaginable trio of hurricanes laid waste to parts of Texas, Florida, and Puerto Rico. The flooding that followed the hurricanes also unleashed significant amounts of toxic chemicals into the environment, signaling that any state with industrial facilities near coasts and in floodplains – including Virginia and other mid-Atlantic states – could be vulnerable to toxic floodwaters in the aftermath of powerful storms.


enlarge …

March 14, 2018 by Katie Tracy

Workers have the right to speak up about health and safety hazards they encounter on the job. And they should be able to feel comfortable coming forward with their concerns without having to worry that they will be fired, demoted, or in some other way retaliated against for doing so. That is exactly what the drafters of the Occupational Safety and Health Act (OSH Act) had in mind when they included a provision in the 1970 law prohibiting employers from retaliating against workers who report concerns to the Occupational Safety and Health Administration (OSHA) or to its state counterparts (in states that choose to operate their own OSH programs with approval from federal OSHA). 

Unfortunately, in the more than 47 years since the law's enactment, the anti-retaliation provisions have proven ineffective. Despite legislation introduced in Congress to update the law, no bill has ever gained enough …

March 13, 2018 by Laurie Ristino

Who doesn't want to breathe clean air?

Unfortunately, a "bipartisan" bill now working its way through the Senate would undermine our ability to address a growing source of air pollution – livestock operations. The so-called Fair Agriculture Reporting Method Act (S. 2421), or the "FARM Act," would amend the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), better known as the Superfund law, to exempt agricultural producers from reporting toxic air emissions. The bill's clever name is a misnomer: it lets livestock producers stop reporting emissions altogether. Its passage would seriously undermine our ability to address a growing pollution problem that disproportionately impacts rural communities and socially disadvantaged Americans.

To understand how the FARM Act came about, we have to go back 20 years. That's when the Environmental Protection Agency (EPA) realized that it had insufficient emissions data from animal feeding operations (AFOs) – industrial-style farming …

March 7, 2018 by James Goodwin

Later this morning, CPR Member Scholar and Georgetown Law Professor Lisa Heinzerling will testify before the House Small Business Committee at a hearing that appears to be aimed at reveling in the Trump administration's assault on regulatory safeguards. In her testimony, Professor Heinzerling will explain why the celebratory mirth and merriment from the committee's majority members and their invited witnesses is misplaced and most likely premature. 

As Heinzerling will point out, the major motivating force behind the Trump administration's assault is its so-called one-in, two-out executive order, which mandates that agencies repeal two existing rules for every new rule they wish to issue and to ensure that the cost savings that result from those repeals are sufficient to fully offset any costs the new rule might impose. This order was meant to give agencies' deregulatory efforts a shove, but it may prove to have …

More on CPR's Work & Scholars.
March 30, 2018

Coal and Nuclear Plant Bailout Would Be Unjustified Use of DOE's Emergency Authority

March 29, 2018

What Happens on the Land Happens to the Water

March 28, 2018

What the Failure to Account for Growth Looks Like in Maryland

March 27, 2018

The Guidance Racket

March 26, 2018

Oversight Needed for Maryland's Occupational Safety and Health Division

March 21, 2018

Holding the Line on New Pollution While We Clean Up the Chesapeake Bay

March 19, 2018

Threat from Climate-Induced Spills Goes Beyond Superfund and Toxic Release Inventory Sites