Scholarship Round-Up: New Directions in Environmental Law
Last week, the Washington University Journal of Law and Policy published New Directions in Environmental Law, a symposium issue featuring articles from six CPR Member Scholars. The articles explore how lessons learned from first generation environmental statutes should be applied to future legislation in order to accomplish the original goals of the environmental movement.
- Dan Tarlock, in Environmental Law: Then and Now, describes how the symposium was organized to analyze first generation environmental statutes to raise provocative questions about the future of environmental law. Tarlock concludes that environmental law in the United States “remains locked in the transition phase of protecting the earth from discrete threats to human and natural well-being.” “The major themes running through this symposium are that we require a richer theory of the appropriate scale and mix of government participants (monitored by NGOs), management strategies that use information both to set protection targets and to allow flexible ways of reaching them, and ways of reducing the stream of chemicals that impair public health even as the question of what triggers adverse impacts on the human body becomes ever more complex.”
- In his article Clean Air Act Dynamism and Disappointments: Lessons for Climate Legislation to Prompt Innovation …
In June, the Food and Drug Administration issued Draft Guidance on the Judicious Use of Medically Important Antimicrobials in Food-Producing Animals. The FDA recognizes in the guidance that the “overall weight of evidence available… supports the conclusion that using medically important antimicrobial drugs for production or growth enhancing purposes… in food-producing animals is not in the interest of protecting and promoting the public health.” The public health concern arises where bacteria in these animals develop resistance to the drugs and then are transmitted to food workers and consumers, who then introduce the drug-resistant bacteria into their communities.
In a new book, Superbug: The Fatal Menace of MRSA, journalist Maryn McKenna details the emergence of one of the most common and increasingly prevalent drug-resistant bacteria, methicillin-resistant Staphylococcus aureus (MRSA). While MRSA was once primarily found in hospitals, McKenna traces the emergence of community-based strains of the bug that …
Cross-posted from Legal Planet.
On Monday the White House Council on Environmental Quality issued a report on the NEPA analysis that preceded exploratory drilling at the ill-fated Macondo well in the Gulf of Mexico, together with recommendations for improving NEPA analysis in the future. According to CEQ, the Bureau of Ocean and Energy Management (successor to the disgraced Minerals Management Service) has already agreed to implement the recommendations.
The report offers a detailed look at the chaotic and uncoordinated NEPA procedures that were apparently routine at the old MMS. The major outlines of the story were already well known: MMS did a cursory, over-optimistic oil spill analysis at the 5-year program and lease sale stages, then applied a categorical exemption to applications for exploration plans. Separately from that environmental analysis, BP prepared an oil spill response plan which considered the possibility of a much larger catastrophic spill …
In November 2008, with Riegel v. Medtronic recently decided, bills introduced into Congress to overturn its effect, and Wyeth v. Levine about to be argued in the Supreme Court, the President of the American Bar Association created a task force to review ABA policies regarding preemption of state tort law. The composition of the task force was equally split between those who generally favor preemption and those who generally oppose it and included both private practitioners and academics (I was one of those academics). Earlier this month the task force unanimously presented its recommendations to the House of Delegates of the ABA, the policy making body of the ABA, and the House adopted those recommendations by an overwhelming majority.
Eschewing any attempt to take a substantive position on the desirability of preemption of state tort law or the lack thereof, the task force focused on the procedures …
On Wednesday, EPA announced its intention to revise (pdf) the TSCA Inventory Update Rule (IUR). The TSCA Inventory is the official list of chemicals in commerce, and the IUR is the regulation that requires companies to submit production and use data to EPA to ensure the Inventory accurately represents all of the chemicals out there. This week's announcement marks the second time in ten years that EPA has decided the IUR needs improvement, based on agency staff’s efforts to regulate toxic chemicals using the data available to them.
As Dan Rosenberg points out over at Switchboard, the changes are mostly good, although EPA certainly could have gone further on a few fronts. For one, EPA has expressed some interest in changing the IUR’s requirements for reporting occupational exposures—changes that would be a huge improvement—but hasn’t yet decided exactly how to implement the …
Cross-posted from Legal Planet.
Administrative agencies sometimes issue regulations that have the effect of overruling state law — and sometimes that is the sole effect of the regulation. This proved quite controversial during the Bush Administration, which used agency rulemaking efforts to cut back on state tort law. The ABA has a adopted a new resolution dealing with this issue. The resolution reads:
RESOLVED, That the American Bar Association urges Congress to address foreseeable preemption issues clearly and explicitly when it enacts a statute that has the potential to displace, supplement, or otherwise affect state tort law by:
(1) clearly and explicitly stating when it intends to preempt state tort law; and,
(2) clearly and explicitly setting forth the extent of the preemption of state tort law it intends, and the extent to which, through a savings clause or other means, it intends not to preempt state tort …
CPR Member Scholar Rebecca Bratspies was recently on Chicago Public Radio's Worldview talking about oil spills in the developing world, the power of big companies in small nations, and the broader picture of resource extraction and its effects on people.
Said Bratspies:
"any oil company that doesn't cut the same corners that the worst player does is going to be at a competitive disadvantage, and that creates a snowball effect, of choices that are not sustainable and choices that are not about doing things in a responsible fashion."
In June, I wrote about a settlement between EPA and environmental groups that requires EPA to publish guidance on the implementation of National Pollutant Discharge Elimination System (NPDES) permits for concentrated animal feeding operations (CAFOs) and to propose a rule to collect more information on these operations. In that post, I cited numbers from EPA showing that states in the Chesapeake Bay Watershed had many CAFOs without NPDES permits; for some of the states, not a single CAFO was permitted. Maryland had an estimated 220 CAFOs and only 7 with NPDES CAFO permits.
In response, the Maryland Department of Environment’s Secretary Shari T. Wilson provided an update to the status of the state’s CAFO permitting program, showing nearly twice as many CAFOs and improvements in CAFO permitting statistics. The updated numbers are:
Progress on CAFO Permits (as of June 30, 2010)
|
Notices-of-Intent (NOI) Received |
529 … |
In the past 15 months, the combination of President Obama’s Chesapeake Bay Protection and Restoration Executive Order and the EPA’s Bay-wide Total Maximum Daily Load (TMDL) process has established a framework for ensuring accountability and success in Bay restoration efforts. No aspect of this new framework is more important than the Bay states’ and the District of Columbia’s Watershed Implementation Plans (WIPs), which will demonstrate how they will meet the pollution targets in the applicable TMDLs. While the soundness of states’ WIPs depends on a broad array of technical, financial, and administrative factors, our bottom line expectation is that states write clear, objective, and transparent plans so that all watershed partners achieve their TMDL pollution reductions and ultimately restore the Chesapeake Bay. These WIPs will also enable the public to vigorously monitor the progress in meeting those commitments.
The Center for Progressive Reform has …
The American Chemistry Council (ACC), a trade association that represents chemical industry interests and is heavily connected to the plastics industry, filed a Request for Correction Monday on the EPA's Chemical Action Plan for Bisphenol A (BPA). The request, filed under a provision of the Data Quality Act (also referred to as the Information Quality Act), is truly astonishing and bears noting. In addition to standard requests that EPA statements be toned down or removed due to conflicting studies, ACC makes several requests that EPA remove statements that are included not as “ knowledge such as facts or data,” but policy statements that reflect EPA’s intent to manage exposure to BPA.
ACC requests in several places that references to a Canadian risk assessment of BPA be deleted because the Canadian assessment was informed by the precautionary principle:
Any reliance in the Canadian assessment to support EPA’s …
