In almost any other appellate court, winning over a simple majority of the justices means that you win the case.  Not so in Nebraska. 

Last Friday, in Thompson v. Heineman, a majority of the Nebraska Supreme Court found the Keystone XL Pipeline routing law, LB 1161, which granted the Governor the power to approve Keystone’s route through the state, unconstitutional.  The catch?  Nebraska’s rarely invoked Const. Art. V, § 2, or “supermajority clause.”  Under this clause, “no legislative act shall be held unconstitutional except by the concurrence of five judges.”  Therefore, five out of seven justices must agree in order to strike down a law as unconstitutional—and since only four justices found the Keystone law unconstitutional, the court was forced to vacate the lower court’s ruling.  (See my previous blog on the subject here.)

The clause is an obscure oddity. It only arises in …

Today, the EPA announced national standards governing coal waste from coal-fired power plants, also known as coal ash. The rule does not treat coal ash as a hazardous material, but as household garbage.

CPR President and University of Maryland law professor Rena Steinzor reacted to the classification:

It's bitterly disappointing that the electric utility industry, which earns profits hand over fist, has succeeded in bamboozling the White House to gut this rule.  Originally designed by EPA to prevent fatalities, injuries, and grave long-term damage to the public's health, the rule was caught in the cross hairs of naysaying economists on the President's staff, who invented the misguided and subversive notion that if coal ash dumps were cleaned up, coal ash could not be recycled.  In fact, a strong rule that makes it more expensive to dispose of coal ash could only result in more …

The main tool available to the Environmental Protection Agency (EPA) to limit the amount of pollution discharged into the nation’s waterways is a system of permits issued to polluters that restricts how much they may discharge. This permitting scheme, the National Pollutant Discharge Elimination System (NPDES), requires permittees to monitor their operations and report back to the EPA or an approved state environmental agency. On those data rest EPA’s ability to enforce the terms of the permits, and thus control pollution that is harmful to the environment and human health.

NPDES permit-holders are required to submit annual reports that include information on whether the polluter met the terms of the permit. Those reports are among the most important compliance assurance and enforcement tools available to the EPA, the states, and, by extension, the communities affected by polluting operations.

In addition to providing critical compliance information …

Contact: Erin Kesler                                     Email: ekesler@progressivereform.org Telephone: (202) 747-0698 X4

What: CPR and the University of Maryland Francis King Carey School of Law will host a luncheon and Q&A session with MD Attorney General-elect Brian Frosh on the state of environmental enforcement in the Chesapeake Bay. Mr. Frosh will speak to a group of Bay advocates, University of Maryland faculty, attorneys at firms that represent Maryland businesses, and interested citizens and students, and take questions from the audience, including media.

Background: Yesterday, the Center for Progressive Reform and Chesapeake Commons released an interactive map detailing the extent of pollution caused by Concentrated Animal Feeding Operations (CAFOs) along Maryland’s Eastern Shore.  The map, released concurrently with a report from the Environmental Integrity Project drawn from its data, relies on farmer-reported information to find that all but one of the sixty CAFOS examined has excessive phosphorus levels …

Without Better Phosphorus Management on Farms, Maryland Will Not Meet its Responsibility Under the Chesapeake Bay Pollution Diet

A new interactive map from the Center for Progressive Reform (CPR) and the Chesapeake Commons demonstrates that all but one industrial-scale chicken farm on Maryland’s Eastern Shore reported having at least one field saturated with “excessive” soil phosphorus from the spreading of manure. The data on the 60 concentrated animal feeding operations (CAFOs) in six counties was obtained from public planning documents from the Maryland Department of the Environment submitted between 2008 and 2014.

When developing required comprehensive nutrient management plans (CNMPs), the 60 CAFOs in Dorchester, Talbot, Caroline, Wicomico, Worcester, and Somerset counties took soil samples from 1,022 fields to help plan their fertilization needs over the plan’s five-year term. Of those fields, 623—62 percent—had soil phosphorus levels, known as Fertility Index Values …

Recent stories about "dead zones" in the Gulf of Mexico and the Chesapeake Bay are a reminder that despite progress on some water pollution fronts, we still have a serious problem to address. One politically popular approach to addressing the problem is a market-based solution, in which hard-to-regulate "non-point" pollution sources (farming, run-off, other sources without a "pollution pipe") and point sources engage in pollution-credit trades. So, for example, an industrial polluter might pay farmers to control run-off of fertilizer, thus reducing the flow of nutrients that cause dead zones. The interesting idea has been tried in some places, but has faltered because very few trades have actually been made, presumably because farmers lack incentive to overcome the challenges of striking deals and then implementing the pollution-control measures. It's just not their area of expertise.

In an op-ed published today in the Houston Chronicle, CPR Member …

At the Maryland Farm Bureau's Annual Convention today, Maryland Governor-Elect Larry Hogan vowed to fight against the state's proposed phosphorus management tool (PMT) regulations.

CPR President and University of Maryland law professor Rena Steinzor reacted to Hogan's comments, "It’s truly a shame that Governor-elect Hogan is indicating so early that he is willing to jeopardize the restoration of the Chesapeake Bay by rejecting pollution controls out of hand rather than working with scientists to improve them.  As the Governor-elect will soon discover, farmers have an interest in minimizing the use of excess fertilizer because it is as expensive as it is unnecessary.  Large animal feeding operations looking for a cheap way to dispose of manure by dumping it on the ground year round, even in the dead of winter, may have an economic interest in defeating these controls.  But for the rest …

Over the next two weeks, CPR will publish a series of blog posts highlighting several key regulatory safeguards for protecting the integrity and health of U.S. water bodies against damaging pollution—rules that are currently under development by the Environmental Protection Agency (EPA) and included in our recent Issue Alert, Barack Obama’s Path to Progress in 2015-16: Thirteen Essential Regulatory Actions.  Today’s post will examine the clean water safeguard that has attracted perhaps the most vociferous opposition from industrial and agricultural polluters along with their antiregulatory allies in Congress: the EPA’s pending rule to clarify the definition of “Waters of the United States” under the Clean Water Act, which seeks to ensure that certain classes of critical water bodies—many of which are smaller and often overlooked—receive the statute’s full protections.

Given all the histrionics and overblown exaggerations from industry, it …

Today is the deadline for comments from the public on EPA's proposed rule to limit carbon emission from existing power plants.

CPR Member Scholar and University of North Carolina School of Law professor Victor Flatt submitted a comment on the rule.

According to his comments:

What I would like to focus on is suggesting that the agency definitively interpret Section 111(d) to allow states to utilize a greenhouse gas market reduction strategy that allows greenhouse gas reductions to come from any source.

Section 111(d) specifies that the Best System of Emissions Reduction adopted by a state be modeled on the CAA’s section 110, which governs the State Implementation Plans (SIPS).  While the EPA has not had cause to consider the direct meaning of this before, I believe that it means that 111(d) provides a hybrid sort of emissions reduction based on proposed …