Too Little and Far Too Late, EPA Releases a Disappointing eReporting Rule
Last month, the Environmental Protection Agency finalized a long overdue rule that was designed, according to EPA’s description, to move the agency “into the 21st Century.” Since many of the rules’ provisions still will not be in effect more than two decades after the turn of the century, this rulemaking plays right into the hands of those who insist that the federal government cannot work efficiently — ironic, because efficiency is the very purpose of the eReporting rule. In this case, the absurdly slow pace of the rulemaking process and the final rule’s protracted implementation schedule also serves the critics’ agenda. Even after more than a decade in the making, the final rule hampers EPA’s ability to shine a light on the problem of underreporting of water pollution in the United States.
The National Pollutant Discharge Elimination System (NPDES) has long been the centerpiece of EPA efforts to implement the Clean Water Act. The success of the NPDES regime is largely attributable to the requirement that large “point sources” of pollution monitor their effluent discharge and provide publicly available reports on this pollution and any violations of their permits. This simple and transparent regulatory system provides a strong …
Last week, the United States Court of Appeals for the Sixth Circuit issued a nationwide stay of implementation of the new Army Corps/EPA Clean Water Rule. This sounds like a very big deal, and the state plaintiffs who won the stay will no doubt describe this as a major victory. Those proclamations will conceal, however, a few layers of complexity and irony.
The legal basis for the ruling is an administrative law principle known as the logical outgrowth rule. Under this principle, a final rule can be different from a proposed rule, but it still must be a logical outgrowth of that proposed rule; it cannot be something completely new. That principle flows from the basic Administrative Procedure Act requirement for notice and an opportunity to comment. Neither is present when an agency’s final rule does something no one reasonably could have expected, and upon …
Courtesy of the New York Times, here’s a bit of reporting that is emblematic of the way the press has covered the Volkswagen emissions-cheating scandal:
Volkswagen said on Tuesday that the scandal would cut deeply into this year’s profit. And the company’s shares plunged again, ending the day 35 percent below the closing price on Friday, before news of the diesel deception broke. As a result, the company’s stock market value has declined about €25 billion in two days of trading.
The media have covered the VW story with great vigor, to my ear, more even than the GM ignition scandal that claimed more than 120 lives — the number that GM so acknowledges. But most of the VW coverage is about money, not health and not the environment, even though both are clearly in play.
Another Times story focuses on the litigation that …
Modern-day snake oil peddlers may have found a way to keep consumers quiet about their ineffective products: non-disparagement clauses, also known as gag clauses. These clauses, slipped into the fine print of form contracts, can restrict a consumer’s ability to post negative reviews of a product online. Non-disparagement clauses, which can vary in scope, generally prevent consumers from publicizing negative reviews of a product or company. This restriction includes comments made on online forums like Yelp or even complaints to the Better Business Bureau. When a consumer violates the gag clause, the company often will enact punitive measures, like charging the consumer a financial penalty. As long as companies can get away with including hidden terms like non-disparagement clauses in their contracts, consumers will not be operating in a fair marketplace. Fortunately, the federal government has demonstrated its willingness to step in to protect consumers against …
Last week, the U.S. Environmental Protection Agency (EPA) finalized new National Ambient Air Quality Standards (NAAQS) for ozone pursuant to the federal Clean Air Act. See 42 U.S.C. § 7409. The new regulation reduces both the primary and secondary NAAQS for ozone from 0.075 to 0.070 parts per million (ppm) (or from 75 to 70 parts per billion) averaged over eight hours in order to better protect human health, welfare, and the environment. The new regulation has not yet been published in the Federal Register, but it is available from the EPA.
NAAQS are one of the Clean Air Act’s primary mechanisms for protecting human health and the environment from air pollution. Such protections begin with the EPA Administrator designating criteria pollutants—pollutants that, when emitted into the air, “cause or contribute to air pollution which may reasonably be anticipated to endanger …
The resignation of House Speaker John Boehner and the VW diesel car scandal -- two rather extraordinary events -- might not initially appear to be related, but there is a connection. The most conservative members of the Republican caucus celebrated Representative Boehner's resignation because they felt he did not fight hard enough to shrink the size of the federal government through more aggressive tactics, like government shutdowns. Although one of government's most important functions is to deter behavior such as that of VW, the radical Republicans would organize American society using only markets, not government. The difficulty with this stance is that corporations "cheating" consumers is an unavoidable aspect of capitalistic markets, making government regulation a necessity.
Adam Smith in the Wealth of Nations famously identifies an "invisible hand" by which individual self-interest has the effect of benefiting society more effectively than when an individual intends to …
Consistent with his ongoing efforts to distinguish himself among the Republican presidential candidates as a serious “policy wonk,” Jeb Bush, “rolled out” his “regulatory reform” plan last week. The sad truth, though, is that the plan contains little of what might be considered sober or intellectually rigorous. Rather, it is simply a mishmash of warmed over ideas from candidate Mitt Romney’s 2012 regulatory reform plan and from the various antiregulatory bills that have been festering in Congress the last several years, all served on a wilted bed of misleading data, astounding leaps of logic, and outright falsehoods.
To see why this plan would be such a bad deal for the American people, consider the following 10 points:
- It relies on unreliable or misleading empirical data. Jeb simply does what countless other regulatory opponents have done before him: He attempts to create an alternative reality in which …
The new primary ozone standard of 70 parts per billion (ppb) is definitely a step in the right direction, but it has taken EPA far too long to make this much-needed change.
We should not forget, however, that EPA Administrator Lisa Jackson sent a proposed standard of 65 ppb to the White House in August 2011, but was told explicitly by President Obama to withdraw it because the White House economists thought it would be too costly for business, despite the fact that this delay came at the expense of the health of vulnerable Americans.
The Supreme Court has held that the Clean Air Act prohibits EPA from taking such cost considerations into account when setting the standards, but that does not stop affected industries from railing against any protections the agency promulgates to protect public health.
We can expect the regulated industries to complain that a …
Two of the most important aspects of the Clean Power Plan (CPP) are the flexibility afforded states as they design compliance strategies and the plan’s openness to all energy resources. A state can satisfy its emission-reduction targets through the use of cleaner or more efficient coal-fired generation, natural gas or nuclear power as well as through increased use of renewable resources and energy efficiency. Regardless of this flexibility and openness, investor-owned utilities (IOUs), which have dominated the electricity market for more than a century, tend to resist the imposition of additional environmental regulations. Some resistance is predictable as utilities have sunk trillions of dollars of investments into the construction of generation, transportation and distribution networks..
While this resistance may be understandable, there are two significant rebuttal arguments to it. First, utilities have demonstrated remarkable resilience, particularly over the last three or more decades, to dramatic challenges …
Lawrence Daquan “Day” Davis, 21, died tragically on his first day of work at his first job, as a “temp worker” at a Bacardi bottling facility in Jacksonville, Florida. He began his shift within 15 minutes of arriving at the facility, after completing some paperwork and watching a very brief safety video. Although working in a bottling facility is a dangerous job, Davis and his coworkers received no real training about the potential hazards or proper safety procedures. Within hours, Davis was asked to help clean up some broken bottles caused by a machine malfunction. While he was under the machine picking up the glass, the equipment was turned back on, and he was crushed to death.
Davis’ story is a poignant example of an eager and hard-working individual killed on-the-job because no one cared to train him, despite legal requirements to do so, before placing him …
