Last week, members of the American Federation of Government Employees (AFGE) union at EPA released an internal Agency memo describing the Agency’s proposed plan to cut back on specific areas of enforcement in response to looming budget cuts in FY 2013.  The memo, by Larry Starfield, EPA's Deputy Assistant Administrator in the Office of Enforcement and Compliance Assurance lists “Areas of Proposed Budget Adjustment for FY13.”  Federal agencies have an unenviable task: they must plan for budgets that are unpredictable; and at this time we don’t know where next year’s EPA budget will ultimately end up. Nonetheless, the proposals in the Starfield memo are troubling. The contingency plan it sets forth raises concerns about the future of enforcement at EPA.   

Several points regarding proposed budget cuts at EPA seem worth noting. First, even the most draconian cuts to the Agency will do almost …

a(broad) perspective

Today’s post is second in a series on a recent CPR white paper, Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties.  Each month, this series will discuss one of these ten treaties.  Previous posts are here.

Antarctica is the coldest, driest, highest, most pristine, and least inhabited continent, and it has the largest contained ecosystem on the planet.  Home to whales, seals, penguins, petrels, and many animals and plants found nowhere else on earth, Antarctica also plays an integral role in regulating global environmental processes.  

Though largely isolated from …

One of the many ways that the slow and agonizing contraction of the newspaper industry is felt is in the depth of coverage that papers provide their readers. It’s a matter of simple math, really. As newsrooms shrink, reporters are stretched ever thinner. So a newspaper that 15 years ago had separate reporters covering elementary and secondary education is now likely to have just one covering both. Similarly, newspapers have fewer reporters dedicated to the environmental beat, let alone beats covering regulatory issues — topics at the heart of the Center for Progressive Reform’s work. The result is that many reporters don’t have time to take on stories they might once have covered, and if they do, they sometimes have a steeper learning curve and too little time to really dig in. That’s a recipe for simplistic coverage, which is just a nice way …

The White House’s Cass Sunstein has found another poster child for his crusade to eliminate costly regulation under President Obama's Executive Order 13563.  The order requires agencies and departments to “look back” at existing requirements in order to kill unnecessary health, safety, and environmental requirements.  The U.S. Department of Agriculture (USDA), complying dutifully with the order, has dug deep into the garbage can where abandoned deregulatory proposals go to die, producing a despicable plan regarding  poultry processing plants, already among the most hazardous workplaces in the nation.  The proposed rollback would make corporate owners rather than federal inspectors responsible for scrutinizing slaughtered carcasses to ensure they are free of blood, guts, and (euphemistically) “fecal matter.”  The new rule would save the federal government about $39 million annually—a small amount that accounts for the savings at USDA when a few hundred inspectors are offloaded …

Congress usually enacts new public protections following a major crisis or series of crises that focus attention on the failure of existing laws to protect the public or the environment from abuses by companies pursuing economic gain. 

Most of the protective regulatory programs of the Progressive Era, the New Deal, and the Public Interest Era (the period of active government extending roughly from the mid-1960s through the mid-1970s) were established after widely publicized tragedies or abuses stirred public opinion to levels sufficient to overcome the inertial forces that otherwise overwhelm Congress and the regulatory agencies.

Federal regulation of mine safety and health is an excellent example of this phenomenon.

The Federal Coal Mine Health and Safety Act of 1969 was enacted in direct response to the November 20, 1968 explosion at the Consolidation Coal Company’s Console Number 9 mine in Farmington, West Virginia that killed 75 …

Last Friday, the FDA denied the Natural Resources Defense Council’s (NRDC) citizen petition requesting that the agency ban Bisphenol A (BPA) as an approved food additive and food contact substance.  The agency took nearly three years to issue this decision, and did so only under a court’s order. The FDA’s denial of the petition was disappointing, because the existing science on BPA is strong enough to warrant restrictions on its use. The announcement was an unsurprising continuation of the federal government’s “wait and see” approach to BPA regulation. 

FDA spokesman Douglas Karas said that “this announcement is not a final safety determination and the FDA continues to support research examining the safety of BPA.”  There is no question that continued risk assessment and scientific study of BPA should be part of the FDA’s action plan for addressing the health and safety concerns …

When the United States signed NAFTA, it also signed the North American Agreement on Environmental Cooperation (NAAEC), which allows, among other things, for citizens to submit complaints to the Commission for Environmental Cooperation (CEC) with claims that their own governments are failing to enforce environmental laws.

That key provision is in danger, a group of CPR Member Scholars say in a letter to EPA Administrator Lisa Jackson. The letter was signed by CPR Member Scholars Rebecca Bratspies, Carmen G. Gonzalez, David Hunter, John H. Knox, Noah Sachs, Dan Tarlock, and Chris Wold.

The citizen submissions can result in investigative reports by the CEC Secretariat, which have in some cases led to real improvements in policy, particularly in Mexico, the Member Scholars write. The NAFTA governments, through the EPA Administrator and her counterparts, must approve, through a 2/3 vote, CEC Secretariat recommendations for reports. From 1996 to …

With congressional action on climate change at a standstill, EPA’s new source performance standards (NSPSs) for greenhouse gases (GHGs) from new power plants should be applauded.  As required by the Clean Air Act, the agency is doggedly moving forward to establish emission standards for GHGs, air pollutants that unquestionably endanger human health and welfare. EPA deserves praise for setting a strong standard and proposing it notwithstanding political heat. The glass is half-full.

While attention is properly focused on what EPA has accomplished, it is important not to lose sight of what could be better. One concern is the standard’s flexibility: it lets new power plants (presumably coal-fired) violate the standard now and catch up in the future (presumably through the installation of carbon capture and storage (CCS)). In the somewhat unlikely event that utilities take advantage of that flexibility, it could give coal-fired power continued …

Cross-posted from Legal Planet.

Regular readers of this blog know that on January 13, 2011, EPA vetoed a Clean Water Act section 404 permit issued by the Corp of Engineers for valley fill at the Spruce No. 1 mountaintop removal mine project in West Virginia. This was only the 13th time EPA had used its veto power, and the first time it had vetoed a permit after it was formally issued. I wrote at the time: “Expect litigation, and expect it to focus on the timing of the veto.”

It’s nice, sort of, to have my instincts confirmed. Sure enough, the mining company, Mingo Logan, challenged the veto precisely on the grounds that EPA lacked authority to revoke a permit once issued. On Friday the D.C. District Court agreed with that argument. Here’s how the court summarized its ruling:

The Court concludes that EPA …