Supreme Court Remains Skeptical of the 'Cost-Benefit State'

by Amy Sinden | September 26, 2016

Originally published on RegBlog by CPR Member Scholar Amy Sinden.

In the wake of the U.S. Supreme Court's opinion in Michigan v. EPA last term, a number of commentators have revived talk of something called the "Cost Benefit State." It is supposed to be a good thing, although it makes some of us shudder. The phrase was originally coined by Cass Sunstein in a 2002 book by that name. It describes a supposedly utopian government in which agencies and courts apply to all regulatory decision-making a formal cost-benefit analysis (CBA) grounded in welfare economics.

Sunstein and other eager proponents of CBA have seized on language in the Michigan case that, in the course of striking down the U.S. Environmental Protection Agency's (EPA) mercury rule, gestured toward the existence of a presumption favoring the consideration of costs in regulatory decision-making. Sunstein heralded the opinion as a "rifle shot" ringing in the arrival of the Cost-Benefit State. And John Graham and Paul Noe, in a recent RegBlog essay, echoed that sentiment, congratulating the Court on reversing its earlier anti-CBA presumption.

Indeed, in the midst of all of this hoopla, the casual observer might be forgiven for assuming that the Toxic Substances Control Act reform legislation signed into law by President Barack Obama last month is ...

Federalism Games in the Clean Power Plan Battle

by William Buzbee | September 23, 2016
Next Tuesday, the U.S. Court of Appeals for the D.C. Circuit will hear four hours of argument over the Clean Power Plan (CPP). Federalism-linked statutory, regulatory, and doctrinal law has been and will be crucial to the CPP's fate, and several issues of federalism will play a key role. In designing the CPP, the U.S. Environmental Protection Agency built on states' actions in reducing greenhouse gas (GHG) emissions in recent years through use of GHG trading regimes, and nudging or ...

Federal Contracting Gets Safer Thanks to New, Common-Sense Regulations

by Katie Tracy | September 21, 2016
Federal contractors that violate labor laws not only cheat workers by disregarding their rights to fair pay and safe workplaces, but they also tend to run into unexpected costs and delays during performance of the contracts they're awarded. With this in mind, in 2014, President Obama issued Executive Order (E.O.) 13673, which seeks to improve cost savings and efficiency in government contracting by requiring prospective contractors to disclose labor law violations and obligating contracting agencies to review those violations before ...

New EPA Assessment Shines a Light on a Cause of Chesapeake Bay Woes

by Evan Isaacson | September 20, 2016
The Chesapeake Bay watershed and its restoration framework under the Bay Total Maximum Daily Load (TMDL) are so large and complex that it can be a real challenge to study, much less write about, the problem and the ongoing restoration efforts. This is why the recent U.S. Environmental Protection Agency (EPA) assessment of the tiny Beck Creek watershed in Lebanon County, Pennsylvania is so valuable. The same activities that have fouled Beck Creek and the restoration practices that are working ...

Landmark California Law Links Emissions Reductions and Environmental Justice Goals

by Alice Kaswan | September 19, 2016
California's recent climate legislation is noteworthy not only for its toughest-in-the-nation carbon reduction goals – 40 percent below 1990 emissions by 2030 – but also for continuing the state's tradition of linking climate and environmental justice goals. AB 197, which accompanied a carbon reduction bill known as SB 32, prioritizes direct emission reductions likely to improve air quality; increases public access to information about carbon, conventional, and toxic emissions; and establishes a new cross-cutting legislative oversight committee to systematically monitor ...

House Passes Bill to Silence Agency Experts and Frustrate Public Participation in the Regulatory Process

by James Goodwin | September 15, 2016
Last night, the House of Representatives, in an almost completely party-line vote, passed the Regulatory Integrity Act (H.R. 5226), a bill that would prohibit the U.S. Environmental Protection Agency (EPA), the Food and Drug Administration (FDA), and other agencies from engaging the public on their pending efforts to address climate change, prevent foodborne illness, and otherwise act in the public interest. Center for Progressive Reform Senior Policy Analyst James Goodwin offered the following reaction to the bill's passage:  Poll after poll ...

CPR Member Scholars Earn Top Marks in Environmental Law Scholarship

by Brian Gumm | September 13, 2016
Every year, Thomson Reuters and West Publishing compile a set of significant and influential articles from a number of legal scholars who focus on land use and environmental law. The Land Use & Environment Law Review represents some of the best scholarship on these issues, and peer reviewers recently included five pieces on environmental law published in 2014 and 2015.  Among the selected articles are two from CPR Member Scholar Hannah Wiseman, Professor at Florida State University College of Law, ...

The Role of the Clean Air Act's Goals in Clean Power Plan Litigation

by David Driesen | September 08, 2016
The Clean Power Plan has been widely touted as significant because it regulates the largest source of carbon dioxide (CO2) emissions in the United States – the electric power industry. Its significance, however, goes beyond U.S. CO2 emissions because it serves as the linchpin of international efforts to reduce greenhouse gases in order to avoid dangerous climate disruption. The rule gave the Obama administration sufficient credibility to persuade the Chinese to pledge limits on their own greenhouse gas emissions for ...

The Clean Power Plan: Unpacking the Generation Shifting Issue

by David Driesen | September 08, 2016
The U.S. Environmental Protection Agency's (EPA's) Clean Power Plan (CPP) relies, in part, on a pollution reduction strategy – generation shifting – that is at issue in the ongoing lawsuit over the rule. Generation shifting involves increasing use of relatively clean natural gas and renewable energy and reducing use of relatively dirty and expensive coal-fired power plants. Although the technique has lowered power plant emissions significantly in recent years, opponents of the CPP have argued in legal briefs that section ...

Five Years Ago Today: When Obama Put Politics Ahead of the Public Interest

by James Goodwin | September 02, 2016
September 2, 2011, was a lot like today, the Friday before a long holiday weekend.  While many were already turning their attention to backyard barbecues and afternoon naps in hammocks, the then-Administrator of the White House Office of Information and Regulatory Affairs (OIRA) Cass Sunstein, the controversial official charged with supervising federal regulatory activities, dropped a bombshell. In a notice known as a “return letter,” Sunstein publicly announced that President Obama was rejecting what would have been one of the most important ...

Presidential Transitions Are Important. So Why Aren't They More Transparent?

by James Goodwin | August 31, 2016
Next Wednesday, Public Citizen is holding an important event that aims to promote greater transparency in the presidential transition process. The transition process is among the most critical events in our constitutional system of democracy. As the Center for Presidential Transition lays out in detail in its Presidential Transition Guide, this process is where the incoming president's policy agenda is formulated, where candidates for key administrative posts are selected, and where at least the first year of budget priorities are ...

Verchick in Slate: Connecting the Dots Between Climate Change and Our Vulnerable Energy Grid

by Brian Gumm | August 29, 2016
It's common knowledge that our energy choices impact the planet's climate, but less widely known is how climate change and its intensified storms, heat waves, droughts, and water shortages affect our energy grid. Already vulnerable, the grid can suffer catastrophic damage when a storm like Hurricane Katrina or Hurricane Sandy strikes.  In an Aug. 26 article in Slate, Center for Progressive Reform Board President Rob Verchick explores these vulnerabilities and connects the dots between climate change and the grid. He ...

'Cultural Cognition' Theory Offers a Path to Climate Change Progress

by Matthew Freeman | August 25, 2016
Over the course of the last few decades, one of the great communications challenges facing progressives has been, and continues to be, how we talk about climate change. The difficulty in persuading politicians and the public about the need for action isn’t just that the effort has run head-long into a massive and well-funded industry campaign designed to sow confusion. It’s also that the policy changes needed to  make a difference fairly drip with disruption of one sort or another ...

Comments from CPR: Forced Arbitration Proposal Is Strong but Should Be Stronger

by James Goodwin | August 23, 2016
Yesterday, several CPR Member Scholars and staff formally submitted comments on the Consumer Financial Protection Bureau's (CFPB) proposed rule to limit the use of forced arbitration agreements in consumer contracts for financial products like credit cards and bank accounts.  CPR Member Scholars and staff have been tracking this rulemaking for over a year and in May 2016 published a report that assessed several key issues shortly before the CFPB released its proposal. In particular, our report evaluated the CFPB's preliminary ...

CPR's Shapiro Takes on the Politicization of Science in North Carolina

by Brian Gumm | August 18, 2016
In a new op-ed published in the Raleigh News & Observer, Center for Progressive Reform Member Scholar and Board Member Sidney Shapiro examines two recent examples of politics getting in the way of protecting people and the environment in North Carolina. As he explains, the politicization of science by state officials has serious ramifications for the ability of agencies and scientists to safeguard residents from toxic chemicals, rising sea levels, and more.  The following is an excerpt from the op-ed: ...

Sorry, Senator Vitter. The CFPB Is in Full Compliance with Small Business Outreach Law.

by James Goodwin | August 15, 2016
While the Rolling Stones' "You Can't Always Get You Want" may be an ill-advised campaign song, perhaps it can still serve as the official theme song for Sen. David Vitter's (R-LA) Government Accountability Office (GAO) report requests. The anti-regulatory senator had requested that the GAO audit the Consumer Financial Protection Bureau (CFPB) – a favorite punching bag of the right – to determine whether it is complying with the small business outreach requirements imposed by the Small Business Regulatory Enforcement ...

It's Well Past Time for OSHA to Act on Heat Stress

by Katie Tracy | August 11, 2016
Last month was the hottest July on record for several cities across the southern United States, thanks to a heat wave that brought extreme temperatures to most of the country. But even when temperatures aren't record-breaking, extreme heat can be dangerous and potentially fatal if proper precautions aren't taken. Between 2003 and 2012, more than 30 workers died annually from heat-related illnesses and injuries, according to the Occupational Safety and Health Administration (OSHA). In 2014, 18 workers died and another ...

Justice and Contemporary Climate Relocation: An Addendum to Words of Caution on 'Climate Refugees'

by Maxine A Burkett | August 10, 2016
This excerpt is drawn from a post originally published on Aug. 8, 2016, by the Wilson Center's New Security Beat. The idea that climate change is causing migration and displacement is entering the mainstream, but experts have warned against using the term "climate refugees" to describe what we're seeing in small islands, coastal regions, and even conflict zones like Syria. Geoff Dabelko's 2007 post on climate change and migration was an early and important clarification of this emerging phenomenon. He ...

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