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 apparent premise of the hearing is that the National Environmental Policy Act (NEPA) is being wielded as a "weapon" by public interest groups at the expense of responsible economic activity. Reality, as it so often does, does not corroborate the conservatives' narrative, however. 

Rather, the scholars' letter marshals actual data and statistics that together show that relatively few actions covered by NEPA are ever subjected to "environmental impact statements" or EISs,  the most rigorous procedure mandated under the law; that litigation over NEPA compliance is relatively rare, and what litigation does occur is comparable to instances of litigation in other administrative law contexts; and that, except in a few unusual cases, most NEPA procedures are resolved in a matter of a few years at most. Specifically, the letter makes the following five points:

  • A small percentage (1 percent) of federal actions require an environmental impact statement; most are covered by categorical exclusions or ...

CPR's 2018 Op-Eds, Part One

by Matthew Freeman | April 11, 2018
CPR’s Member Scholars and staff are off to a fast start on the op-ed front in 2018. We list them all on our op-ed page, but here’s a quick roundup of pieces they’ve placed so far. Member Scholar Alejandro Camacho joins his UC-Irvine colleague Michael Robinson-Dorn in a piece published by The Conversation. In "Turning power over to states won't improve protection for endangered species," they summarize their recent analysis of state endangered species laws and state funding for enforcement. They ...

Coal and Nuclear Plant Bailout Would Be Unjustified Use of DOE's Emergency Authority

by Joel Eisen | March 30, 2018
It's no secret that the Trump administration and coal companies have drawn a bullseye on reversing coal's declining fortunes in wholesale electricity markets, where competition and inexpensive natural gas have driven coal's market share down from 50 percent in 1990 to about 30 percent today. Feeling bullish about their prospects in a sympathetic administration, owners of coal and nuclear plants have tried to extract subsidies to prevent what they view as premature retirements of large power plants.  This January, the ...

The Guidance Racket

by Rena Steinzor | March 27, 2018
Originally published on The Regulatory Review. Reprinted with permission. The spirited conservative attack on regulatory guidance is both puzzling and hypocritical. Admittedly, agencies sometimes issue guidance to avoid the quicksand of informal rulemaking. But the law makes clear that without full-dress procedure, guidance can never replace rules and statutes in enforcement actions. Remedying agency overreach in the rare circumstances when enforcement cases are based primarily on guidance is a straightforward legal matter—defendants have only to tell their problems to a judge. ...

Oversight Needed for Maryland's Occupational Safety and Health Division

by Katie Tracy | March 26, 2018
Maryland's Occupational Safety and Health division (MOSH) is struggling to carry out its mission of ensuring the health and safety of Maryland workers, according to CPR's analysis of a mandatory performance report the agency provided to the state legislature late last year. The Maryland legislature mandated the report as a condition of releasing $250,000 of MOSH's FY 2018 funds. Our review of the report and other agency materials leads us to conclude that the agency's limited budget is a key ...

Kneecapping CERCLA Won't Get Rid of Air Pollution from Ag

by Laurie Ristino | March 13, 2018
Who doesn't want to breathe clean air? Unfortunately, a "bipartisan" bill now working its way through the Senate would undermine our ability to address a growing source of air pollution – livestock operations. The so-called Fair Agriculture Reporting Method Act (S. 2421), or the "FARM Act," would amend the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA), better known as the Superfund law, to exempt agricultural producers from reporting toxic air emissions. The bill's clever name is a misnomer: it ...

CPR's Heinzerling to House Small Business Committee: Trump's Assault on Safeguards Nothing to Celebrate

by James Goodwin | March 07, 2018
Later this morning, CPR Member Scholar and Georgetown Law Professor Lisa Heinzerling will testify before the House Small Business Committee at a hearing that appears to be aimed at reveling in the Trump administration's assault on regulatory safeguards. In her testimony, Professor Heinzerling will explain why the celebratory mirth and merriment from the committee's majority members and their invited witnesses is misplaced and most likely premature.  As Heinzerling will point out, the major motivating force behind the Trump administration's assault is ...

Trump White House: Safeguards Produce Huge Net Benefits; Also Trump White House: Repeal Them Anyway

by James Goodwin | February 28, 2018
Last week, the Trump administration released the annual Draft Report to Congress on the Benefits and Costs of Federal Regulations. As befitting this auspicious occasion, the administration pulled out all the stops: targeted op-eds from high-ranking administration officials; relevant operatives dispatched to the leading Sunday morning talk shows; and even a televised press conference with the president himself.  Just kidding. They buried it. Quietly. Late on a Friday afternoon. When Congress was away on recess.  And even though it's already ...

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 ...

The Ninth Circuit, the Clean Water Act, and Septic Tanks

by Dave Owen | February 15, 2018
Originally published on Environmental Law Prof Blog. Last week, the Ninth Circuit decided Hawai'i Wildlife Fund v. County of Maui, a case involving Maui County's practice of pumping wastewater into wells, from which the wastewater flowed through a subsurface aquifer and into the Pacific Ocean. The county, according to the court, needed a National Pollutant Discharge Elimination System (NPDES) permit for this practice. It did not matter that the county's wastewater traveled through groundwater on its way to the ocean; ...

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 ...

Outer Continental Shelf Shell Game Leaves Florida's Coastline More at Risk for Drilling

by Alyson Flournoy | February 06, 2018
On January 4, the Department of the Interior (DOI) released its draft proposed program for oil and gas leasing on the Outer Continental Shelf (OCS). The proposed plan would end a broad ban on drilling imposed by President Obama and allow leasing and drilling on over 98 percent of the OCS, including the waters off Florida's Atlantic and Gulf coasts. The Eastern Gulf of Mexico is subject to a congressional moratorium until 2022, but the new plan would commence sales ...

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 ...

Government and Bureaucracy Play Essential, Fundamental Roles in American Life

by James Goodwin | January 31, 2018
President Trump's first State of the Union address contained numerous outrageous claims and statements, rendering a full dissection and critique practically impossible. Many have already singled out one line of the speech as worthy of particular condemnation, so I'll add mine. Early on, Trump made this statement to the rapturous applause of his conservative allies in Congress: "In America, we know that faith and family, not government and bureaucracy, are the center of American life." This claim is not only ...

What Creates the Cost, Mr. President?

by Matthew Freeman | January 31, 2018
During the State of the Union address last night, no one was surprised to hear President Trump brag about all the work his administration has done slashing regulatory safeguards for health, safety, the environment, and financial security. It’s clearly one of his proudest first-year accomplishments — making us all less safe and more vulnerable to industries that profit by polluting the air and water, creating unsafe working conditions, using underhanded financial practices, or selling dangerous products. The president thinks that ...

Breaking the Law: Many Trump Regulatory Rollbacks and Delays Are Unlawful

by Bill Funk | January 30, 2018
Progressives have rightfully taken issue with the Trump administration's policy goals, from immigration to the environment, from health care to worker safety. Given the president's decidedly unprogressive stances, one should not be surprised at the policy reversals from the prior administration. One might be surprised, however, and dismayed as well, at the cavalier disregard that the administration has shown for the law, both substantive and procedural.  For example, President Trump's earlier executive orders on the "Muslim ban" were overturned not ...

The Congressional Review Act: Trump's First-Year Participation Trophy

by James Goodwin | January 29, 2018
Perhaps because he has so few real accomplishments to his name, President Donald Trump has developed a nasty habit of embellishing his record. From the size of the crowd at his inauguration to the number of floors in Trump Tower, he simply won't let a little thing like "reality" or "facts" or even "cardinal numbers" get in the way of his estimation of his own self-worth. Expect this behavior to be on full display at tomorrow night's State of the ...

Looking Back on a Year of Trump's Regulatory 'Fire and Fury'

by Matt Shudtz | January 26, 2018
Next Tuesday, President Trump will share his view of the state of our union. And if his words correlate with his actions over the last year, the dominant theme will be one of division and disruption. Like no president in recent history, Donald Trump has pushed U.S. residents to cordon ourselves off into dueling tribes whose theories of governance and policymaking diverge and whose basic facts and language are starting to split in disturbing ways. But on whichever side of ...

Regulatory Policy

When it comes to health, safety and the environment, executive branch enforcement of the law has become yet another arena to fight and re-fight policy battles presumably settled in Congress. In particular, regulated entities, including companies that pollute or  make potentially dangerous products, spend millions working to block, delay, and unravel such protections.

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