Clearing the Air
Originally published on Legal Planet.
On Friday, the D.C. Circuit decided Murray Energy v. EPA. The court upheld EPA's health-based 2015 air quality standards for ozone against challenges from industry (rules too strong) and environmental groups (rules too weak). However, it rejected a grandfather clause that prevented the new standards from applying to plants whose permit applications were in-process when the standards were issued. It also required EPA to tighten up the "secondary standards" for ozone, which are intended to prevent non-health harms such as damage to vegetation.
If you think the life of a federal circuit judge is all about dramatic constitutional arguments, you might consider one argument that the court had to wrestle with. The environmental challengers argued that "EPA impermissibly departed from CASAC's advice by setting the secondary standard level using a three-year average W126 benchmark without lowering the level to protect against single year exposures associated with median annual tree growth loss of 6%, which CASAC had advised was 'unacceptably high.'" The court observed that:
"CASAC had advised a maximum level associated with 5.2% annual biomass loss, see J.A. 631, and it expressly cautioned that 6% median growth loss in a single …
Originally published on Legal Planet.
The first phase of Trump's regulatory rollbacks has been directed against Obama's climate change regulations. Those deregulatory actions will be finalized soon. What happens next will be in the hands of the courts. But the Trump EPA is now beginning a new phase in its attack on environmental regulation. Having tried to eliminate climate regulation, its next move will be an attack on basic protections against air pollution.
The Clean Air Act, the federal air pollution statute, is largely structured in terms of achieving national ambient air quality standards (NAAQS). In March 2020, EPA will propose revisions in the standards for ozone and particulates, the two most important pollutants. It has already started work on the revisions. Guess what? EPA won't be planning to tighten the standards. If anything, they are likely to loosen them, weakening a crucial safeguard.
Trump's EPA has …
This commentary was originally published by The American Prospect.
Everyone in communications knows how to bury a news story: release it late on a Friday. So it was with the White House’s annual report on federal regulations, released months behind schedule on a Friday in February. As it has for many years, the report pegged the benefits of federal regulation in the hundreds of billions of dollars, swamping the calculated costs of compliance by at least 2 to 1 and possibly as much as 12 to 1—awkward results for the Trump communications team, to say the least. How to square these numbers with the “job-killing regulations” trope was a real head-scratcher.
It might seem like good news that regulatory safeguards actually do save a lot of lives, not to mention preventing a lot of diseases, accidents, and other bad things. But these big numbers on …
On June 21, the Environmental Protection Agency (EPA) released its evaluation of the third and final round of state Watershed Implementation Plans (WIPs) under the Chesapeake Bay restoration framework known as the "Bay TMDL" (Total Maximum Daily Load). EPA's evaluation of the seven Bay jurisdictions broke no new ground regarding the quality or contents of the states' plans, but instead reiterated many of the same findings and concerns expressed by advocates, including the ones I expressed with my colleague David Flores. So what, if anything, is EPA going to do about the many shortcomings in the state WIPs?
From the looks of it, not nearly enough. The first indication that EPA's evaluation was not going to be a satisfactory response to the problematic WIPs was buried in a footnote. In the second footnote on the first page of each of the WIP evaluations, EPA says that it …
This post was originally published on SCOTUSblog. It is republished here under a Creative Commons license (CC BY-NC-ND 3.0 US).
The Supreme Court has concluded that Virginia's decades-old moratorium on uranium mining is not pre-empted by the Atomic Energy Act. But there is no clear answer to the question that pervaded the briefing and oral argument: What is the proper role for state legislative purpose in a pre-emption analysis?
Monday's judgment was accompanied by three opinions: a lead opinion written by Justice Neil Gorsuch and joined by Justices Clarence Thomas and Brett Kavanaugh; a concurring opinion by Justice Ruth Bader Ginsburg, joined by Justices Sonia Sotomayor and Elena Kagan; and a dissenting opinion by Chief Justice John Roberts, joined by Justices Stephen Breyer and Samuel Alito. The Gorsuch opinion stated that state legislative purpose has no place in pre-emption analyses, whereas the Ginsburg opinion expressed discomfort …
According to press reports, EPA is preparing to ignore possible deaths caused by concentrations of pollutants occurring below the national ambient air quality standards (NAAQS). This is a key issue in a lot of decisions about pollution reduction. For instance, there is no NAAQS for mercury, but pollution controls on mercury would, as a side benefit, reduce pollution levels of harmful particulates. According to EPA’s prior cost-benefit analyses, those reductions could save many lives even in areas where current levels of particulates are below the NAAQS. Scientists see no reason to think that particulates in those areas are harm-free. But EPA now seems poised to ignore those saved lives. There’s a seeming logic behind that stance, but it’s fundamentally wrong.
The logic is simple — as simple as a magician pointing out she has nothing up her sleeves. The NAAQS is supposed to be set …
In a memo sent last week but just now released, EPA Administrator Andrew Wheeler backtracked a bit on one of the administration's initiatives to undercut sensible safeguards. His May 13 memo abandons the agency's push last year to establish uniform standards for bending agency decision making in favor of cost-benefit analysis, regardless of statutory directives, and instead directs that this effort follow a statute-by-statute approach.
Wheeler’s retreat on this particular effort to ignore the life-saving benefits of environmental rules is good news. He acceded to the concerns raised by CPR and other legal experts that the Clean Air Act, Clean Water Act, and various other environmental laws impose different requirements, making a one-size-fits-all approach to cost-benefit analysis both impractical and unlikely to survive legal challenge. But as with everything this administration does when it comes to health, safety, and the environment, when Wheeler talks about improving …
Originally published on Legal Planet.
EPA pollution regulations are based on an assessment of the risks posed by pollutants. This can be a complex scientific judgment. The Clean Air Scientific Advisory Committee (CASAC), the agency's scientific advisory board, is pushing for major changes in the way that EPA approaches this analysis. The effect would be to make it much harder for EPA to prove that a risk exists.
Currently, risk assessment is based on a "weight of the evidence" approach that considers all of the peer-reviewed literature, rather than limiting itself to studies using specific methodologies. Tony Cox, the industry consultant who now heads CASAC after Scott Pruitt purged most academic scientists, has been pushing for a radical change. He wants to limit risk assessment to studies that use a specific set of methods to establish that a substance actually causes harm. In particular, he rejects studies …
Originally published on Legal Planet.
What is EPA’s mission? To what extent is minimizing regulatory costs part of the core mission, as the Trump Administration seems to believe? Does the Trump-Pruitt/Wheeler view comport with original intent? History makes it clear that the answer is “no.”
The title of the agency itself suggests that the core mission is protecting the environment, just as the core mission of the Defense Department is presumably national defense (though cost isn’t irrelevant in either setting). It’s worthwhile, however, to take a closer look at the marching orders given to the agency when it was formed. As it turns out, we do have clear evidence of what Congress and the President had in mind.
EPA wasn’t established by a statute. It was established through a special process that no longer exists for government reorganization, which allowed the President …
Today, the Center for Progressive Reform and 46 other environmental, labor, and public health organizations sent a letter to Environmental Protection Agency (EPA) Administrator Andrew Wheeler calling on him to withdraw the agency's pending "benefits-busting" rule. Wheeler was recently confirmed as the official agency head, and, as the letter notes, he can begin his tenure on the right track by abandoning this dangerous rulemaking. The proposal is a vestige of the disastrous Scott Pruitt era that would radically overhaul how the agency performs "cost-benefit analysis" on the environmental and health safeguards it is developing so as to make the results even more biased against public protections.
The broad range of public interest groups signing on to the letter confirms just how far-reaching a threat the benefits-busting rule poses, not just at EPA, but all agencies charged with protecting the public interest. Indeed, the changes it …
