Administrative Procedures and Racism
This post was originally published by the Yale Journal on Regulation's Notice & Comment blog. Reprinted with permission.
In 1958, civil rights leaders, including Dr. Martin Luther King, Jr. and Andrew Young, met in New York with Reverend Everett Parker, who was the Director of the Office of Communications of the United Church of Christ. The Office was an advocacy arm of the church, whose members’ commitment to civil rights dated back to colonial times. The civil rights leaders sought the Office’s assistance because of their concern about the biased coverage of the civil rights movement by Southern television stations. After years of litigation, the meeting led to two decisions in the D.C. Circuit (United Church of Christ I & United Church of Christ II) that blocked efforts by the Federal Communications Commission (FCC) to relicense WLBT, a Jacksonville, Mississippi television station, which had engaged in news and other programming that were plainly racist.
The cases are remembered today, if they are remembered at all, for a pathbreaking holding that television viewers had a statutory right to intervene in FCC’s license hearings, an issue that the court treated as standing. But they are important for another …
On October 20, 1994, rising floodwaters from the San Jacinto River in Houston, Texas, caused a pipeline to break open, allowing gasoline to gush out and the river to catch fire. Such flooding is increasingly likely as the effects of climate change take hold, and yet, in the quarter century since that disaster, the federal government has implemented no new regulations to ensure that oil and gas operators are adequately preparing for the risks from more frequent and intense floods caused by the climate crisis.
In April 2019, the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration issued an unenforceable notice reminding pipeline operators that severe flooding still threatens the integrity of their infrastructure. Similarly, prompted by chemical disasters during recent hurricanes, the U.S. Chemical Safety and Hazard Investigation Board (CSB) alerted industrial facilities of the potential chemical disasters that could be …
In July, the Maryland Department of Environment (MDE) released the findings of a new ambient air quality monitoring project focused on the state’s Lower Eastern Shore. This effort was announced more than a year ago as a partnership between the Delmarva Poultry Industry (DPI), a trade group for just what it sounds like, and MDE to monitor ammonia and particulate matter emissions from industrial poultry operations.
The number of registered poultry CAFOs, or concentrated animal feeding operations, in Maryland has increased from seven in 2009 to 544 today, and the vast majority are located on the state’s Lower Eastern Shore. For years, residents have complained of foul odors emanating from nearby CAFOs, in addition to nausea, eye and throat irritation, and respiratory ailments. These symptoms are consistent with exposure to high levels of ammonia — a compound emitted when chicken litter breaks down, making it a …
Yesterday, I joined a group of CPR Member Scholars and staff in submitting comments on the Environmental Protection Agency's (EPA) "benefits-busting" proposal, which would drastically overhaul how the agency performs cost-benefit analysis on its biggest Clean Air Act rules. As we explain in our comments, the action is a thinly veiled effort to rig the results of those analyses – more so than they already are – to make it harder to issue appropriately strong safeguards, thereby sabotaging the effective and timely implementation of the Clean Air Act.
Our comments lay out in detail several shortcomings of the benefits-busting proposal. To begin, the EPA lacks legal authority to issue a binding rule of this kind. But even if the agency did have such authority, the proposal would do little, if anything, to improve its regulatory decision-making given that cost-benefit analysis is either superfluous to or even prohibited by the …
The nation is finally beginning to grapple with the widespread disparities in public health, economic opportunity, and community well-being across race and class that stem from longstanding systems of oppression and injustice. As systems thinkers, CPR's Board, staff, and Member Scholars have devoted considerable time to researching and understanding the roots of these inequities, considering the disproportionate impacts on frontline communities, and advocating for just policy reform.
Our Regulation as Social Justice project is an example. It recognizes that EPA, OSHA, and other "protector agencies" have a vital role to play in preventing harm to people and the environment through their statutory authority to adopt and enforce regulations. As they exercise that authority, agencies also have the capacity, indeed the moral obligation, to redress environmental and public health injustices by prioritizing the needs of overburdened communities in the development of their regulatory agenda and enforcement policies.
In …
Based on its current projected path, Tropical Storm Isaias could bring heavy rains up and down the East Coast, from the Carolinas and Virginia to the Delmarva Peninsula, Pennsylvania, and New Jersey. Along the way, the storm could swamp industrial facilities, coal ash ponds, concentrated animal feeding operations (CAFOs), and more.
From Hurricane Florence to Hurricane Harvey and beyond, in the past 15 years, we've seen numerous tropical storms flood unprepared facilities. This has caused significant infrastructure damage and unleashed toxic floodwaters into nearby communities and waterways, threatening public health and making residents sick.
While no one can predict the exact path of any given storm, we do know the importance of preparing for extreme weather and adapting to the climate crisis. For resources on this issue, you can review CPR's report on toxic floodwaters in Virginia, our paper on toxic floodwaters and public health, and our …
Workers presently have no right to bring a lawsuit against employers under the Occupational Safety and Health Act (OSH Act) for failing to provide safe and healthy working conditions. If an employer exposes workers to toxic chemicals or fails to guard a dangerous machine, for example, they must rely on the Occupational Safety and Health Administration (OSHA) to inspect, find a violation, and issue a citation. This omission in the 1970 statute is especially troubling in the context of COVID-19, as workers across the United States continue to face a massive workplace health crisis without any meaningful support from OSHA or most of its state and territorial counterparts.
OSHA has so far declined to adopt an emergency standard to address COVID-19, despite repeated calls by unions, workers, and advocates to do so. Moreover, rather than enforcing existing standards or holding employers accountable for violating their general duty …
In an article headlined, "Dozens of facilities skipping out on EPA pollution monitoring have prior offenses," The Hill reports the following today:
More than 50 facilities across the country that have faced enforcement actions for alleged Clean Water Act violations are among those taking advantage of an Environmental Protection Agency (EPA) policy that lets companies forgo pollution monitoring during the pandemic, an analysis by The Hill found. The temporary EPA policy, announced in March, says industrial, municipal and other facilities do not have to report pollution discharges if they can demonstrate their ability to do so has been limited by the coronavirus. The Hill first reported that 352 facilities have skipped water pollution monitoring requirements under the policy, which applies to air pollution as well. Of those facilities, 55 have faced formal enforcement actions in the past five years from either the EPA or state …
Today, a group of 136 law professors from across the United States, including 31 Center for Progressive Reform (CPR) Member Scholars, will send a letter to congressional leaders urging them to “ensure that our courthouse doors remain open to all Americans for injuries they suffer from negligence during the COVID-19 pandemic.”
The letter, spearheaded by CPR Member Scholars Dan Farber and Michael Duff, comes in response to a push by the U.S. Chamber of Commerce and other corporate special interests to include a “federal liability shield” in the next COVID relief bill, which is now being negotiated in Congress. This shield would prevent ordinary Americans from holding corporations accountable in the civil courts when their unreasonably dangerous actions cause people to become sick with the virus.
As the letter explains, the federal liability shield would violate clear principles of federalism by intruding upon the traditional rights …
Donald Trump is no stranger to leaving things worse off than he found them, and this is precisely what his administration now aims to do with the Environmental Protection Agency (EPA), not just one of the most successful government institutions in the history of the United States, but indeed the world. Having worked quickly, if not sloppily, to dismantle every vestige of the Obama administration's efforts to promote cleaner air and water, the Trump EPA is now heading down a path of self-destruction. The agency's proposed "benefits-busting" rule, released early last month, is a big part of this campaign.
The benefits-busting rule is nominally about overhauling how the EPA does cost-benefit analysis for its Clean Air Act rules, but make no mistake: This action is really about putting that foundational law into concrete boots and shoving it into the nearest body of water. Future efforts to fulfill …
