A Loss for Trump -- and for Coal

by Daniel Farber | August 23, 2018

Cross-posted from LegalPlanet.

Understandably, most of the attention at the beginning of the week was devoted to the rollout of the Trump administration's token effort to regulate greenhouse gases, the ACE rule. But something else happened, too. On Tuesday, a D.C. Circuit ruling ignored objections from the Trump administration and invalidated key parts of a rule dealing with coal ash disposal. That rule had originally come from the Obama administration, and the court agreed with environmentalists that it was too weak. Trump's efforts to weaken it further may have hit a fatal roadblock.

Coal ash is produced in huge quantities by coal-fired power plants. As the opinion describes, it's just chock-full of toxic substances. Traditionally, the industry just dumps it, in dry or wet form, in a pond or reservoir. If it escapes suddenly, it can cause a massive toxic flood; if slowly, it can contaminate groundwater.

The Trump administration asked the court to hold its ruling in abeyance until it could issue a new rule or else remand several aspects of the rule for further consideration. The court did remand some aspects of the rule that industry had not challenged, but not one crucial part of the rule, dealing with "legacy ponds" – that is, sites that are no longer receiving waste. The court agreed with environmentalists that requirements for these legacy sites were too weak. It also rejected industry's claim that EPA lacks authority to ...

CPR, Public Interest Allies Call on EPA to Abandon 'Benefits-Busting' Rule

by James Goodwin | August 15, 2018
Earlier this week, 19 Member Scholars with the Center for Progressive Reform (CPR) submitted comments to the Environmental Protection Agency (EPA) that provide a detailed legal and policy critique of the agency's "benefits-busting" rulemaking.  Since early July, EPA has been accepting feedback on an advance notice of proposed rulemaking (ANPRM) that could lead to a complete overhaul of how the agency performs cost-benefit analysis on its environmental and public health rules. Consistent with other anti-safeguard moves the Trump EPA has ...

Trump Loses Another Big Court Case

by Daniel Farber | August 13, 2018
Cross-posted from LegalPlanet. Last Thursday, the Ninth Circuit ruled that Scott Pruitt had no justification for allowing even the tiniest traces of a pesticide called chlorpyrifos (also called Lorsban and Dursban) on food. This is yet another judicial slap against lawlessness by the current administration. Chlorpyrifos was originally invented as a nerve gas, but it turns out that it kills insects quite satisfactorily. (I remember ads for "Big Foot Lorsban" from back when I lived in downstate Illinois, many years ago. ...

Miami Herald Op-Ed: New EPA Administrator, Same Menace to the Environment

by Joel Mintz | August 02, 2018
This op-ed originally ran in the Miami Herald. The forced resignation of Scott Pruitt as administrator of the U.S. Environmental Protection Agency (EPA) brought celebration and relief in many quarters. Pruitt was a walking scandal machine who generated an endless stream of headlines about spending abuses, cozy relationships with industry lobbyists, first-class travel at government expense, and aides asked to perform personal tasks, including buying lotions and mattresses and unsuccessfully helping his wife land a Chick-fil-A franchise. Of more lasting ...

A Real, Not Faux, Transparency Proposal for Regulatory Science

by Wendy Wagner | August 01, 2018
Originally published on The Regulatory Review. Reprinted with permission. In a previous essay, we critiqued the U.S. Environmental Protection Agency’s (EPA) recently proposed transparency rule, arguing that the proposal conflicts with best scientific practices and would further erode the EPA’s ability to do its job. According to supporters, the central goal of the proposed rule is to increase the transparency of regulatory science. Unfortunately, the proposal does not begin to deliver. No matter how many times the word “transparency” is repeated ...

Wheeler's Chance for a Course Correction at EPA

by Matt Shudtz | August 01, 2018
Andrew Wheeler will be on the hot seat today when he heads to Capitol Hill for his first appearance before the Senate Environment and Public Works Committee as Acting Administrator of the EPA. Senators initially scheduled the hearing when Scott Pruitt was Administrator and his ethical problems had reached such epic proportions that his party's support was starting to erode. With Pruitt out and Wheeler in, today's hearing has the potential to be more about environmental policy than conflicts of ...

Scott Pruitt Wants to Pick Winners and Losers by Cooking the Books at EPA

by James Goodwin | June 28, 2018
UPDATE (July 2, 2018): EPA has granted a one-month extension to its original comment period. Public comments on the advance notice of proposed rulemaking are now due on August 13. Soon after his confirmation, EPA Administrator Scott Pruitt quickly set out to take a "whack-a-mole" approach to advancing his anti-safeguard agenda, attacking particular rules designed to protect Americans and the environment from specific hazards – climate change, various air and water pollutants, and so on – one by one. But ...

Deconstructing Regulatory Science

by Wendy Wagner | June 19, 2018
Originally published on The Regulatory Review. Reprinted with permission. The U.S. Environmental Protection Agency (EPA) Administrator Scott Pruitt recently opened another front in his battle to redirect the agency away from its mission to protect human health and the environment. This time, he cobbled together a proposed rule that would drastically change how science is considered during the regulatory process. Opposition soon mobilized. In addition to the traditional forces of public interest groups and other private-sector watchdogs, the editors of the ...

Senators' Letter Brings Welcome Oversight to Troubled White House Office

by James Goodwin | May 10, 2018
Yesterday, six senators, led by Sen. Maggie Hassan of New Hampshire, criticized Trump administration "regulatory czar" Neomi Rao and her office for what appears to have been a slapdash review of a highly controversial Environmental Protection Agency (EPA) draft policy designed to stifle the agency's progress on advancing environmental and public health protections. Rao is the administrator of the White House Office of Information and Regulatory Affairs (OIRA), a small but powerful bureau located within the Executive Office of the ...

The Questionable Legal Basis of the EPA 'Transparency' Proposal

by Daniel Farber | April 30, 2018
"They sat at the Agency and said, 'What can we do to reimagine authority under the statutes to regulate an area that we are unsure that we can but we're going to do so anyway?'" When he said those words, Scott Pruitt was talking about the Obama administration. But it seems to be a pretty accurate description of the "transparency" proposal he issued last week. Everyone agrees that it would be good to increase the public availability of scientific information ...

Scholars Call Out Congressional Committee for 'Mythification' of NEPA

by James Goodwin | April 24, 2018
Tomorrow, anti-environmental members of the House Natural Resources Committee will hold a hearing provocatively titled, "The Weaponization of the National Environmental Policy Act and the Implications of Environmental Lawfare" – yet another in a long line of conservatives' attempts to justify myriad legislative attacks against this bedrock environmental law. As more than 100 CPR Member Scholars and other academic leaders explain in a letter to committee members, though, the hearing would be more aptly titled "The Mythification of NEPA."  The ...

The Hill Op-ed: Justice Dept's Enforcement Policies Make Change for the Worse

by Rena Steinzor | February 22, 2018
This op-ed originally ran in The Hill. Attorney General Jeff Sessions has wasted little time portraying himself as the prosecutor-in-chief of street — as opposed to white collar — crime, rejecting this month even a broadly bipartisan effort to reduce sentences for nonviolent crime supported by a coalition that spans the Koch brothers and the NAACP. Civil enforcement has also fallen off, as documented in investigative reporting by The New York Times and others. Both trends will almost certainly continue given ...

CPR's Emily Hammond Testifies About Health and Economic Benefits of Clean Air Act Regulation

by Matt Shudtz | February 14, 2018
It was an early holiday present to the nation's biggest polluters. EPA Administrator Scott Pruitt announced in early December that he was drastically changing the way EPA reviews polluters' compliance – or lack thereof – with the Clean Air Act. Today on Capitol Hill, CPR Member Scholar Emily Hammond will explain that this dramatic shift in policy is a complete abnegation of EPA's statutory responsibilities and, beyond that, puts lives and economic opportunity at risk. Professor Hammond is testifying before ...

CPR Letter Calls On Trump Labor Department to Withdraw Tipping Rule Proposal Due to Suppressed Analysis

by Katie Tracy | February 05, 2018
Today, six CPR Member Scholars and staff members sent a letter to the Department of Labor's (DOL) Wage and Hour Division, calling on the agency to withdraw its proposal to repeal an Obama-era rule aimed at preventing employers from taking workers' hard-earned tips. Last week, Bloomberg Law uncovered a deliberate effort by the DOL to conceal an analysis showing that the proposal would allow business owners and managers to steal and misappropriate billions of dollars – that's "billions" with a ...

Trump, EPA, and the Anti-Regulatory State

by Daniel Farber | January 25, 2018
Originally published on The Regulatory Review. Reprinted with permission. The U.S. Environmental Protection Agency (EPA) is a central instrument of the modern regulatory state. Whether from the perspective of environmental protection or regulatory economics, 2017 has not been a good year. Experience to date under the Trump Administration is suggestive of industry capture or reflexive ideological opposition to regulation—or both. A multitude of deregulatory actions have occurred. Unfortunately, nearly all of the traditional sources of checks on political leadership—centralized regulatory ...

CPR Member Scholar Hammond Brings a Real EPA 'Back to Basics' Lesson to Senate

by James Goodwin | November 14, 2017
Today, CPR Member Scholar Emily Hammond is testifying at a Senate subcommittee hearing that will examine four bills that amount to "rifle shot" attacks on the Clean Air Act's public health and environmental protections. Hammond's testimony before the Subcommittee on Clean Air and Nuclear Safety of the Senate Environment and Public Works Committee casts in powerful terms what is at stake with these bills, highlighting how they contribute to the Trump administration's own assault on public safeguards. She also explains ...

Is EPA Administrator Scott Pruitt Focused on Getting 'Back to Basics' or Slashing and Burning Our Environmental Protections?

by Brian Gumm | November 06, 2017
In an article just published in the Environmental Law Institute's Environmental Law Reporter, former Environmental Protection Agency (EPA) official Bob Sussman examines the tenure of Administrator Scott Pruitt thus far. I recently talked with Mr. Sussman about Pruitt's so-called "back to basics" approach at EPA, the rollbacks of environmental protections he has overseen so far, and Pruitt's numerous favors for special interests.  EPA Administrator Scott Pruitt has made a big deal out of his "back to basics" mantra at the ...

Dear Congress: EPA's TSCA Implementation Has Gone Awry

by Katie Tracy | October 19, 2017
Individuals across the United States encounter hundreds of chemical substances every day and often simultaneously – in common household and hygiene products, in our food and drinking water, and in our air. Some of these chemicals present serious risks to our health and the environment and a heightened risk of harm for children, pregnant women, the elderly, and individuals with compromised immune systems. To this day, we are largely unprotected from all manner of chemical exposures, including chemicals widely known ...

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