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.Full text
ROME—On my first visit to Vatican City, before my meeting with Michelangelo, I greeted the Pope via the city’s ubiquitous souvenir stands. I love this stuff. You can try on the “Papa Francisco” kitchen apron and imagine the pontiff’s smile beaming over your Spaghetti Bolognese. Or gently joggle the pate of a Pope Francis bobble-head. Postcards are everywhere, of course. And for €10 you can score the annual “Hot Priests Calendar,” featuring hunky young men of the cloth. In this “G-rated” feature, priests from all over the world help promote the Eternal City and breathe into the Catholic brand a wisp of hipness, to say nothing of hotness.
But back to the Pope. This week Pope Francis released the much anticipated encyclical on the environment and climate change. And there’s a connection between that, the souvenir aprons, and even the hot priests. I’ll leave it to others to examine the language of this compelling and lyrical document. Suffice it to say that, in terms of substance, the edict says nothing we don’t already know. For a generation, experts and activists have hammered the shackles of climate, pollution, and poverty within earshot of anyone willing to hear. What is new—and very exciting—is that now the head of the Roman Catholic Church, an extremely popular and charismatic figure, is calling out this injustice and demanding that world leaders take action.Full text
Almost a decade after Hurricane Katrina, New Orleans-area residents are still trying to hold their government accountable for mistakes that allowed a monstrous flood to devastate their city. Last week, in a case called St. Bernard Parish v. United States, a federal judge helped their cause.
In a dispute involving a major navigation channel controlled by the Army Corps of Engineers, Judge Susan G. Braden of the United States Court of Federal Claims in Washington, D.C., found that the Corps’ negligence in maintaining that passage caused flooding of such consequence that it amounted to a “taking” of homeowners’ property under the federal constitution, thus requiring the payment of “just compensation.”
The facts behind the Katrina flood—perhaps the most expensive engineering failure in American history—are well known to experts. After Hurricane Katrina had passed over New Orleans, a series of levee breaches caused flooding to 80 percent of the city. Independent investigations blamed shoddy design and construction on the part of the Army Corps. A deteriorating navigation channel, the Mississippi River Gulf Outlet, or MR-GO (pronounced “Mr. Go”), also maintained by the Corps, amplified the damage by increasing the storm’s surge and funneling it toward the heart of the city. Four years after Katrina, MR-GO was finally de-authorized and closed. (See previous posts here, here, here, and here.)
Describing the MR-GO fiasco in a 2009 court ruling, the federal trial judge Stanwood Duval nearly blew a fuse. “It is the court’s opinion that the negligence of the Corps, in this instance by failing to maintain the MR-GO pFull text
Nearly five years ago, BP introduced a flippered mammal Americans never knew we had: the Gulf Walrus! If you don’t know the story, you should, because the tale of the Gulf Walrus tells you everything you need to know about what was wrong with deepwater drilling back in 2010, and worse, still is.
The story goes like this: After the Deepwater Horizon oil rig exploded, leaving 11 workers dead and a gusher of oil billowing a mile under the sea, a watchdog group called the Public Employees for Environmental Responsibility unearthed the regional oil spill response plan BP had submitted to the Department of Interior as part of the process to begin drilling. The document was riddled with omissions, errors, and implausible assumptions. There was no plan for a failed “blowout preventer,” no plan for oil reaching the coast, no plan for oil-soaked turtles and birds. But, BP’s regional plan did pay lip service to such “Sensitive Biological Resources” as “Sea Lions, Seals, Sea Otters [and] Walruses.” The media howled. Congressional hearings were held. And in New Orleans, “Save the Gulf Walrus” t-shirts sold like fried oysters. What had happened, it turned out, was that BP had been so eager to gets its rig in the water, that it had cribbed from an earlier plan intended for Arctic drilling. No one had bothered to change the details, and the Department of Interior was happy to give its rubber stamp of approval. And thus an imaginary, large-flippered, sea mammal was born.Full text
A video called, “,” featured on OSHA’s website, introduces Bill Ellis, a retired painter and sandblaster. After years of exposure to fine particles of blasted rock, he developed a respiratory disease called silicosis and died, leaving behind his wife, children, and grandchildren. Ellis’s final months were painful. For a silicosis patient, just drawing breath is an ordeal—like sucking air through a straw.
Thousands of laborers are exposed to the tiny stone particles, called silica, that killed Ellis. Any time workers blast sandstone, saw concrete, or cut brick, that dust is in the air. Because of the broad danger and the availability of relatively inexpensive protective gear, OSHA has proposed rules updating worker safety standards for silica. The current rules have not been revised in over forty years.
The would lower the permissible exposure limit (PEL) of silica dust from 100-250 micrograms per cubic meter of air to 50 micrograms. The rule could nearly 700 lives and prevent 1,600 new cases of silicosis each year. After including costs of implementation, average net benefits are estimated at $1.8 to $7.5 billion per year.
The potential benefits of the rule are truly remarkable. The result seems like a dream situation, where a government agency can protect people and save money. Isn’t that what regulatory agencies are supposed to do?Full text
Ever wonder how Professor Tom McGarity knows about all those delays in regulatory review? Or how Professor Lisa Heinzerling learns about food safety regulations that the White House appears to be burying?
Well, now you too can be an OIRA ninja. In President Obama’s first term, the White House introduced an interactive Web portal stocked with charts and figures to give you better information about the President’s centralized system of regulatory review. (Last summer I referred to OIRA as “the ganglia of the president’s rulemaking brain,” which creeped out some readers, but I’m sticking with it.)
There are only two rules for you. First, don’t be afraid to snoop around; sometimes the most useful stuff is found three or four levels down. Second, don’t fall in love; OIRA’s slick Web site is a fresh breeze for advocates of government transparency. But there’s still a lot missing. Remember the line about statistics and swimsuits: what they reveal is interesting, but what they conceal is vital.
Let’s start with the homepage of the White House Office of Information and Regulatory Affairs, the one with the photo of President Obama and former regulatory czar Cass Sunstein gazing admiringly into each other’s eyes. Just below the photo is a link to the “Regulatory Dashboard,” your entrée into the President’s regulatory control room.Full text
Everything’s upside down. Last week a Democratic president urged a military strike in the Middle East while Republicans dithered about quagmires. Tomorrow, a subpanel of the House Energy and Commerce Committee will launch its first climate change hearing in years and hardly any Obama administration official is willing to show up. Representative Ed Whitfield (R-Ky), who chairs the Committee’s Energy and Power subpanel, says the committee requested presentations from 13 federal agencies. But as of this post only EPA Administrator Gina McCarthy and Energy Secretary Ernest Moniz have promised to testify.
Normally, of course, you can’t stop us progressives from talking about climate change. We talk smack about Canadian tar sands, press universities to rethink their carbon investments, and name hurricanes after Marco Rubio. (The last was really funny, but perhaps not fair.) The President’s all in too. Last August, when he denounced, “the limitless dumping of carbon pollution from our power plants,” I couldn’t get enough.
So, what leaves Whitfield singing, “Can I Get A Witness?”
The thing to know is that tomorrow’s major hearing on climate change is not really a major hearing. It is not even one of those Potemkin major hearings where the participants sit like plyboard cut-outs and pretend to be interested in the topic.
No, this is an ambush. And even the Democrats have figured it out.
So, please, do not expect the panel’s vice chairman, Representative Steve Scalise (R-La) to express concern that because of warming and subsidence, Louisiana is experiencing the fastest rate of sea-level rise on the planet. And, no, Representative Cory Gardner (R-Co) is not going to waste time explaining that his state’s water conservation board worries that Colorado may soon lack water to support its cities, farms, and fish runs. Nor will Representative John Barrow (D-Ga) complain that the Peach State lacks any plan to prepare for such climate shockers as heat waves, vector-borne illness, and increased smog?
You see, the real concern of those in charge of this hearing is not that the climate is changing, but that the government might try to do something about it.
Thus Chairman Whitfield’s invitation letter requests that witnesses come prepared to discuss all upcoming “regulations or guidelines” that would make it harder to pump greenhouse gases into the air, and explain how any “agency funds” have been used to reduce or prepare for climate impacts. As Whitfield explained later to press: "It’s important that we be aware of what unilateral action through regulation and executive orders the administration is looking at.”
One of those “unilateral actions” that Whitfield, no doubt, has in mind is EPA’s upcoming proposal to limit greenhouse gas emissions from new fossil fuel power plants. Let’s ignore for the moment how a rule embraced by an elected president, impelled by a Supreme Court decision (Massachusetts v. EPA), and authorized by an act of Congress (the Clean Air Act) can be characterized as “unilateral.” I need to save something for my law students’ final exam.
The coal industry is extremely worried about this because coal is exactly the fossil fuel that President Obama had in mind when he complained about all that “limitless dumping” from “power plants.” And some Beltway experts are predicting that EPA’s new rules may require new coal-fired power plants to adopt expensive technologies like “carbon capture and storage” (CCS) in order to qualify for permits.
Fancy this, for years the coal industry has been telling us about all its clean coal technology. They said over, and over again that clean coal technology allowed power plants to capture greenhouse gases and pump them underground. We were assured such advancements “aren’t just predictions,” but reality.
Remember the image of the orange extension cord plugged into that polished lump of coal--the one paraded during NASCAR rallies and in between segments of Sunday morning political talk shows?
Remember those television ads with a rainbow coalition of goggled lab and plant workers imploring you to “Believe!”? (Shout it with me: “BELIEVE!”)
And now they say they don’t have it? Let’s have a hearing on that!
The Senate's confirmation of Gina McCarthy as head of the Environmental Protection Agency is a welcome development and a signal that Congress and the President are willing to get serious about the Agency's role in protecting the health of all Americans and the affects of climate change on the environment. It won't be easy. Lawmakers seem divided on nearly every issue in this debate. In the past EPA's efforts to protect the environment and public health and safety have sometimes been delayed by the White House's own Office of Information and Regulatory Affairs (OIRA). Cutting through such bureaucracy should be on the short list of the new administrator's priorities. Climate change knows no political ideology and it follows its own timeline. Administrator McCarthy is well equipped to meet the challenges we face. We are lucky to have her fighting for us all.Full text
Late Tuesday afternoon, Senators Sheldon Whitehouse (D-RI), Tom Harkin (D-IA), Ben Cardin (D-MD), and Richard Blumenthal (D-CT) and U.S. Representatives Henry A. Waxman (D-CA) and Ed Markey (D-MA) sent a letter to White House Office of Management and Budget Director Sylvia Burwell urging her to take "prompt action" to implement rules and regulations held up at the Office of Information and Regulatory Affairs (OIRA). The letter notes that under Executive Order 12866, OIRA reviews of agency draft rules must be completed within 90 days, and that 14 of the 20 EPA rules currently undergoing OIRA review have been languishing for more than 90 days, 13 of them for more than a year.
In a statement this morning, CPR's Robert Verchick, a former EPA official, applauded the Members of Congress for taking on the issue. He said:
Congressional deadlock is often cited as the primary reason for government inaction, but as these key Members of Congress note in their letter, the President's own White House staff is delaying rules that could improve the quality of life for millions of Americans with the stroke of a pen.
EPA's proposed "Chemicals of Concern List rule" has been languishing at OIRA for more than three years, that for a proposal which would provide for nothing more than the simple disclosure of such potentially harmful chemicals, as phthalates, PBDEs, and BPA. Consumers and taxpayers deserve to know which cancer-causing and endocrine-disrupting chemicals are in the products they buy and use. But the President's OIRA is sitting on the rule. Action on this and the other rules bottled up at OIRA is long overdue. The Senators' and Representatives' letter reflects an appropriate sense of urgency.
Verchick was the Deputy Associate Administrator for Policy at the EPA during the first Obama Administration.
CPR Member Scholars have published extensively on the problems at OIRA. Read more on our Eye on OIRA page.Full text
The Ganges River begins at the foot of the Gangotri Glacier in the Himalayas and culminates at the Sundarbans Delta, a massive sprawl of swamps, lakes, and scores of islands. (Find an earlier post on the Ganges here.) It’s the largest river delta in the world—home to endangered Bengal tigers, miles of mangroves, and nearly 12 million people (4.5 million on the Indian side and 7.5 million on the Bangladeshi side).
A student of the Mississippi River Delta, I had long wanted to visit the Sundarban Islands. So after giving a series of lectures in Kolkata, I accepted an invitation to visit some of the islands on a medical boat, operated by the Southern Health Improvement Samity, an organization in West Bengal that delivers health-care services to island villagers.
The experience was one of the high points of my semester sabbatical, which has now drawn to a close. The people were lovely. I chatted with a group of young girls about their new school building, which doubles as a safe house in times of flood. I learned about off-the-grid power from a farmer who had recently installed solar panels on the thatch of his mud hut. A local activist taught me about a program that employs women to grow mangrove saplings and replant them on fragile shores. And the lush forests were idyllic (once you looked past the plastic netting designed to keep the tigers in).Full text