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Two Interesting Things About the Chesapeake Bay TMDL Decision

In a blog post yesterday, Todd Aagaard provided a quick summary of yesterday’s Third Circuit decision rejecting the Farm Bureau Federation’s challenge to the Chesapeake Bay TMDL.  This is an interesting and important case, and it will take a while to digest.  But just based on a preliminary read, a few issues seem particularly interesting and important.

What does TMDL mean?  The Third Circuit interpreted section 303(d) in a way that seems to afford EPA—and the states—discretion in determining the content of TMDLs.  The Farm Bureau’s core argument was that a TMDL should only specify a daily mass of allowable pollutants, and that anything else—for example, a division of that mass into load and wasteload allocations, or into further subdivisions—exceeded the authority granted under the Clean Water Act.  The Third Circuit rejected that argument, instead concluding that “’total maximum daily load’ is a term of art meant to be fleshed out by regulation, and certainly something more than a number.”

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With Right to Marry, Same-Sex Spouses Now Eligible for Hundreds of Employment Benefits

The Supreme Court’s decision on June 26 recognizing same-sex couples’ fundamental right to marry is a significant, albeit long overdue, civil rights victory for the LGBT community and for our nation.  You don’t have to look any further than the long list of benefits available only to married couples to see how denying same-sex couples the right to marry or refusing to recognize their marriage performed in another state is discriminatory.  Fortunately, the Court’s ruling means same-sex spouses will now become eligible for these benefits no matter where they reside.


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CPR's Steinzor on the Third Circuit Court's Decision to Uphold the Chesapeake Bay's TMDL Program

The Third Circuit’s decision today is a tremendous victory for the elusive goal of restoring the Chesapeake Bay to the point that it is ecologically healthy.  As the Third Circuit made clear, the Farm Bureau’s relentless and self-serving opposition to EPA’s leadership in this area misreads the law.  Strong federal pollution controls are the last hope for the largest estuary in the world and for the millions of people who trek to its shores to enjoy its amazing beauty.  The decision gives EPA the whip hand in organizing the efforts of recalcitrant states, special interests like the Farm Bureau, and environmental officials at all levels of government who have the expertise and the wisdom to rescue the Bay.   With EPA’s leadership secured, the Bay’s health is headed in the right direction—toward a reinvigorated ecosystem no longer choked by dead zones and overwhelmed by runoff.

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The Implications of Michigan v. EPA for Regulation of Hazardous Air Pollutants and Beyond

The following post is based on an article by Professor Glicksman on the George Washington Law Review website.[1]

?In Michigan v. Environmental Protection Agency,[2] Justice Scalia, for a 5-4 majority, held that the Environmental Protection Agency (EPA)’s failure to consider cost at the initial stage of deciding whether to regulate emissions of hazardous air pollutants from electric generating units (EGUs or power plants) under § 112 of the Clean Air Act (CAA), even though it gave ample consideration to cost at multiple subsequent stages of the rulemaking, was unreasonable. The provision that EPA improperly interpreted is narrow in scope, applying only to EGUs. The decision remanding the case to the D.C. Circuit is unlikely to significantly affect EPA’s effort to regulate EGUs under § 112, unless the delay in the onset of regulation on remand stretches into a presidential administration that views this regulatory initiative less favorably than the Obama Administration’s EPA. Nevertheless, the case establishes principles and raises important questions of environmental and administrative law that are likely to arise in a host of future regulatory contexts.

In the face of EPA’s languid regulation of hazardous air pollutants, Congress in 1990 required EPA to regulate emissions of more than 180 hazardous air pollutants listed in the statute itself. It also required EPA, in § 112(n)(1) of the CAA, to perform a study of health hazards reasonably anticipated to occur as a result of EGU emissions of any of the listed pollutants, such as mercury. Section 112(n)(1) provides that EPA “shall regulate [EGUs] . . . if [it] finds such regulation is appropriate and necessary after considering the results of the study . . . .”[3] After conducting the study, EPA concluded that regulation of hazardous air pollutants from EGUs was “appropriate and necessary” and issued regulations to control emissions of those pollutants. Several states and industry and labor groups challenged the regulations in the D.C. Circuit, which upheld them by a 2-1 vote.

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CPR President Rob Verchick on BP's Settlement Today

Today’s BP settlement is great news for the Gulf Coast economy, which still suffers mightily from the damage BP and its contractors caused. The President and his Department of Justice deserve credit for hammering out this deal, and keeping their focus on the victims of what the President rightly calls the "worst environmental disaster America has ever faced." 

If the settlement is to have the impact on the region that we all hope it will, we’ll need to be sure that the money is well spent, not siphoned off for political favors or otherwise misused. 


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West Virginia's Bay TMDL Progress Needs to Accelerate

Editors’ Note:  This is the sixth in a series of posts on measuring progress toward the 2017 interim goal of the Bay TMDL.  The first five posts cover the region as a whole, and then MarylandPennsylvania, New York, and Virginia, Future posts will explore the progress of the two remaining jurisdictions.

Like New York, the State of West Virginia can seem a bit distant from the Chesapeake Bay and the process of implementing the Bay Total Maximum Daily Load (Bay TMDL).  But, even though most of the state’s waterways drain into the Ohio River rather than to the Bay, some of the fastest growing counties in West Virginia are those surrounding the Potomac headwaters, and a short drive to the Bay itself.  West Virginia has experienced at least some success to date in reducing nutrient and sediment pollution under the Bay TMDL, but recent information from the Chesapeake Bay Program and the U.S. Environmental Protection Agency (EPA) paints a confusing picture of this progress. 

Another similarity between the portions of West Virginia and New York within the Bay watershed is the geography and various sources of pollution.  The share of nitrogen pollution coming from each state’s vast forests and ambient air is nearly identical at about 29 percent of the total (the highest percentage among the seven jurisdictions), and the agricultural sector in each state represents between 40 percent and 50 percent of total nitrogen pollution.  Additionally, West Virginia, like New York, has made the decision to overemphasize reductions – relative to their share of the pollution problem – from the agricultural sector in its state Watershed Implementation Plan (WIP) to meet the goals of the Bay TMDL.

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The President's Schizophrenia on the Working Class

President Obama’s approval rating is up to 50 percent for the first time in two years after a stellar period of national reconciliation and the safeguarding of Obamacare, his signature, and truly momentous, achievement.  The president, in fulfillment of his noble promises to help the middle class, is about to put his weight behind a Labor Department rule that would hike minimum earnings needed to earn overtime pay, a proposal that would affected 5 million Americans.  These accomplishments remind people why they voted for him in the first instance and returned him to office by a very comfortable margin. 

But for those of us who believe that people should be able to go to work without getting sick or dying, a remarkable series of stories by the Center for Public Integrity can only strengthen the despair that has been building slowly since the president took office.  The series describes an Occupational Safety and Health Administration (OSHA) so impotent with respect to pervasive workplace hazards that it is fair to ask whether this 45-year old institution is fundamentally irrelevant to most American workers.  

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17 hours ago Michigan v. EPA: Costs Matter, But Everything Else Is Up For Grabs

In Michigan v. EPA, the Supreme Court reviewed the Environmental Protection Agency's decision to regulate power plants under section 112 of the Clean Air Act. Section 112 is the provision regulating toxic air pollutants, such as mercury. The question before the Court was whether EPA reasonably interpreted the Clean Air Act to allow EPA to decline to consider costs in deciding whether to regulate power plants under section 112. The Court held that it was not reasonable to interpret the Act in this way. Thus, from the Court's decision, we know that EPA must consider costs in deciding whether to regulate power plants under section 112. There are, however, important questions that remain:

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The Supreme Court Gives Power Plants a Mercury Break

Yesterday, the Supreme Court in Michigan v. EPA threw out EPA’s regulations protecting the American public from mercury and other hazardous emissions of power plants.

In another instance of judicial activism by the Roberts court, the majority refused to defer to EPA’s decision to ignore costs in deciding whether to regulate power plant emissions.

The decision turned on the meaning of the word “appropriate” in a section of the Clean Air Act that addressed hazardous air pollutant (HAP) emissions from fossil fuel-fired power plants. Before EPA subjected HAPs emissions from power plants to stringent technology-based regulations, it had to decide whether regulating those emissions was “appropriate and necessary,” given the other controls that the statute imposed on power plants to reduce acid rain. 

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Michigan V. EPA: Still Hope for the Mercury Rule

Today the Supreme Court blocked a key effort by the Obama administration to keep unsafe levels of mercury and other toxins from spilling into our air. The ruling, issued in Michigan vs. EPA, is a loss for the EPA and public health advocates. But the damage can be contained and will hopefully not prevent the agency from re-issuing its so-called Mercury Rule under a rationale that can satisfy the Court’s newly divined decision-making standards.

At issue was whether the Clean Air Act required the EPA to consider costs to industry when it made the decision to regulate mercury, a known neurotoxin. Because the Act does not mention cost considerations at this early stage of rulemaking, the EPA reasoned such review was unnecessary. At any rate, the EPA had explicitly considered costs in the second stage of analysis when it chose the actual numeric pollution limit. And what it found was that the benefits of the Mercury Rule would exceed the costs by tens of billions of dollars.

Writing for the majority, Justice Antonin Scalia found that the EPA’s failure to consider costs in the early stage of the rule doomed the whole enterprise. The EPA’s decision-making process, according to the Court, did not meet the Act’s requirement of considering all “appropriate and necessary” information.

That’s disappointing, but the loss could have been much worse. In the briefing, opponents of the mercury rule argued to require full cost-benefit analysis rather than simply considering costs. Opponents had also argued that EPA should not be able to count all the indirect health benefits (from reductions in accompanying pollutants) that come from mercury limits. Funny those opponents of the rule had no problem counting the indirect costs that come from mercury limits. The Court’s decision did neither of these two things.

And that leaves open the possibility that the Obama Administration can still keep mercury out of our air. If the courts allow the Mercury Rule to stand until EPA is able to revise its analysis, the agency can then insert a consideration of costs at the earlier stage of its examination. That’s only fair.

Regulations to protect Americans from mercury pollution have been in the works for a long time. Rules to regulate mercury emissions from coal-fired power plants and their co-pollutants were first proposed by the EPA under the Bush Administration. The Obama Administration’s efforts to move the mercury rule would result in between 4,200-11,000 fewer premature deaths a year, 4,700 fewer heart attacks and 130,000 fewer asthma attacks, among other public health benefits.

The Court’s decision was narrow enough to preserve the rule and its vital contribution to public health and the environment.

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