Yesterday, the Supreme Court granted cert. in several cases to hear the following question:
“Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.”
The fundamental issue is whether it was unreasonable for EPA to interpret section 112 to preclude consideration of cost at this particular stage of the regulatory process — not only different from what the Court thinks is the best interpretation, but a position that no reasonable person could take. The Supreme Court and lower courts have rarely found agency interpretations unreasonable in cases where the statute was ambiguous. This is called the Chevron Step 2 analysis, while deciding whether the statute is ambiguous is called Chevron Step 1. The rationales for the Chevron doctrine are that Congress meant agencies to work out statutory ambiguities and that it is better for politically accountable members of the executive branch to do that, as opposed to federal judges with lifetime appointments.
As I noted in an earlier post, families and friends all across the United States will gather to observe the Thanksgiving holiday tomorrow. Compared to many other countries, we are lucky that during such occasions we are able to focus on the celebrations enjoyed in the company of our loved ones—and not have to worry so much about whether the meal might cause a foodborne illness. This is because, while far from perfect, the United States has one of the best food safety systems in the world.
With the food supply chain becoming increasingly globalized, however, a strong system for ensuring the safety of domestically produced foods is no longer enough. Already, 15 percent of the food consumed in the United States is imported. Imports make up 91 percent of our seafood, 60 percent of our fruits and vegetables, and 61 percent of our honey. Unfortunately, many of these imported foods come from countries—such as China, Vietnam, and Mexico—that lack effective health and safety regulation.
Today, the Supreme Court agreed to review a challenge to an EPA rule to reduce mercury pollution.
The Utility Air Regulatory Group and the National Mining Association, and twenty-one states, appealed an April 2-1 federal appeals court ruling that upheld EPA's Mercury and Air Toxics Standards.
According to Center for Progressive Reform President and University of Maryland School of Law professor Rena Steinzor:
The Supreme Court’s decision to grant review is lamentable. It’s no surprise that the coal-fired power plants want to overturn EPA’s carefully crafted controls on mercury and other toxic pollutants. But this rule was mandated by the 1990 Clean Air Act Amendments because mercury, in very small quantities, damages brain and nervous system development in children and babies in utero. The rule would control, for the first time, not just mercury but acid gases and heavy metals such as chromium, arsenic, and nickel. Cost-benefit analyses show that each year the rule will prevent as many as 11,000 premature deaths, 130,000 asthma attacks, and 3.2 million days when people cannot go to work or school. The electric utility industry, which has never met a public health safeguard that it can tolerate, wants the Supreme Court to micromanage the cost side of this equation, by requiring analysis not required by the Clean Air Act, and turning judges into economists who flyspeck thousands of pages of elaborate, impenetrable calculations. We can only hope the Court will resist that temptation.
The Board of Directors of the Center for Progressive Reform today announced the selection of Matthew Shudtz as Executive Director of the 12-year-old organization. Shudtz, who succeeds Jake Caldwell, has been Acting Executive Director of CPR since July of this year.
Shudtz joined CPR’s staff in 2006 as a Policy Analyst, and was subsequently promoted to Senior Policy Analyst. His work has focused on OSHA and related workplace health and safety regulations and toxic chemical control and reform. He has authored or co-authored more than 20 CPR reports and publications including, “At the Company’s Mercy: Protecting Contingent Workers from Unsafe Working Conditions,” “Winning Safer Workplaces: A Manual for State and Local Policy Reform,” and “Reforming TSCA: Progressive Principles for Toxic Risk Regulation.” He holds a J.D. from the University of Maryland Francis King Carey School of Law and a B.S. in Earth and Environmental Engineering from Columbia University.Full text
CPR is on the hunt for an energetic, organized, and dedicated advocate to join our staff as a Policy Analyst. The focus of this position is restoring the Chesapeake Bay through strong implementation of the Bay TMDL. We are especially interested in candidates who have a background in the legal and policy issues related to both clean water and climate change adaptation. Expertise in GIS and other mapping software is a plus. For a full job description, please see our website.
We are anxious to fill this position quickly, so the deadline for applications is midnight on December 21, 2014. Please submit a cover letter, resume, and brief writing sample to email@example.com.
CPR Policy Analysts work closely with our network of more than 60 Member Scholars to promote strong regulation and progressive policies that will protect public health, worker and consumer safety, and the environment. This position also presents an exciting opportunity to work with our allies in the Chesapeake Bay who are advocating for improved enforcement of the laws and regulations already on the books.
Please consider applying and share this announcement with colleagues who might be interestedFull text
Later this week, most of us in the United States will gather together for the simple but meaningful act of sharing a meal as a way to celebrate and reflect upon the relationships and blessings that enrich our lives. The menus will differ from table to table, and family to family, of course. But very few of us will give much thought to whether the food is safe to eat whether it’s been tainted with bacteria or other pathogens.
All things considered, the United States has a strong food safety system—among the best in the world—something to add to our list of things to be thankful for. But distressingly, the system relies on a series of programs that are designed to respond to food illness outbreaks after they’ve already started with the objective of limiting their scope and impact as much as possible. It’s far less adept at preventing such outbreaks in the first place, a lesson we’ve been reminded of over the last several years as outbreaks have popped up again and again.Full text
The House of Representatives has passed legislation (H.R. 1422) that prohibits academic scientists on EPA’s Scientific Advisory committee from participating in “activities that directly or indirectly involve review of evaluation of their own work,” but allows scientists who work for industry to serve on the Board as long as they reveal their respective conflicts of interest. To understand the House’s real motives, it is necessary to appreciate how industry seeks to use scientific uncertainty as an excuse not to act on environmental problems. Senator Inhofe’s claim that global climate change is a hoax is a well-known example of this tactic. Less visible is a decades long public relations, litigation, and advocacy campaign by corporate interests to manufacturer doubt about the science that supports environmental regulation.Full text
Next week in this space, we’ll ask you to think about the food on your Thanksgiving table and what FDA ought to do to keep it safe. Today, I want to focus on how the food gets there—in particular, the work children contribute to the farms where our food and other crops are grown. Many people hold on to the image of children gathering eggs in the yard or dumping a pail of slop in front of an appreciative sow as the true and full extent of child farm labor. But the reality of life on a farm can be much different. In fact, the awful truth is that hundreds of kids who enjoyed Thanksgiving with their families last year won’t be able to this year because they died in an agriculture-related incident in the last twelve months.Full text
Today, the Third Circuit will hear arguments in a case to determine whether the Environmental Protection Agency (EPA) overstepped its authority when it established a pollution diet for the Chesapeake Bay. After decades of failed attempts to clean up the Bay, the pollution diet imposes strong, enforceable deadlines for cleanup. Even without distracting and misguided legal challenges from out-of-state lobbying groups, the restoration battle won’t be easy. The plan has been in place since 2010 and still the Bay experienced the eighth largest dead zone in its history this past summer.
The pollution diet, technically known as the “total maximum daily load” (TMDL), places a science-based cap on the total amount of nitrogen, phosphorus, and sediment that can enter the Bay from the six watershed states and Washington, DC. The TMDL controls “point” sources of pollution—the end of a pipe, for example—as well as “nonpoint” sources, such as most agricultural runoff.
Today, the American Farm Bureau Federation and its supporters will make an argument that flies in the face of settled law. They will argue that by including sector-specific limits on pollution sources, the EPA infringed upon states’ rights to make local land-use decisions. According to the Farm Bureau, the TMDL impermissibly dictates whether:
[P]articular lands can be farmed or developed, and how; the amounts of fertilizer that may be applied to, or sediment that may be washed off from, particular farms, suburbs, land development projects, or city streets; and how to allocate the burdens of achieving water quality goals among municipal sewers, stormwater systems, septic systems, construction and development activities, farming, and other sources.