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Montgomery County Should Appeal Stormwater Case

Last Wednesday, a Montgomery County Circuit Court judge held that the Montgomery County Water Quality Protection Charge is invalid and that the plaintiff should not have been required to pay any stormwater fee to the county. The case could have significant ramifications across the state for jurisdictions that have, like Montgomery County, established a stormwater fee similar to the one invalidated in the case.

First, some background.  In 2012, the Maryland General Assembly passed HB 987, which required any jurisdiction subject to a certain federal stormwater permit (including, for example, Baltimore City and Prince George’s County) to implement an annual stormwater remediation fee and a local watershed protection and restoration fund to hold those new funds. The law did not require the local governments to set the fee at any specific level or otherwise require them to collect a specified amount in revenues; each jurisdiction had discretion in setting the local stormwater remediation fee.  

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The SBA Office of Advocacy . . . Taxpayer Funded Lobbyist for Berkshire Hathaway?

When it commenced on June 1, OIRA’s review of the EPA’s draft final rule to limit greenhouse gas emissions from existing power plants launched a flurry of lobbying activity among a veritable who’s who of America’s largest fossil fuel polluters.   In just over six weeks, the White House’s antiregulatory shop has presided over no less than 21 Executive Order 12866 meetings, the majority of which involved high-priced corporate lobbyists seeking to dilute, delay, or block the rule outright.

The log for a July 1 meeting requested by Berkshire Hathaway Energy contains an interesting tidbit:  Among the attendees was a representative of the Small Business Administration’s (SBA) Office of Advocacy.  Nominally, of course, the mission of the SBA Office of Advocacy is to ensure that the concerns of America’s small businesses are adequately represented in the federal rulemaking process.  So, it’s a little perplexing that a member of the SBA Office of Advocacy staff would be seated alongside the President and CEO of one of the largest and wealthiest energy concerns in the United States and two of its vice presidents.  Berkshire Hathaway Energy is of course a component of Berkshire Hathaway, the Chairman and CEO of which is Warren Buffet who himself is currently listed as the third wealthiest person on earth.

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Kill a Worker? You're Not a Criminal. Steal a Worker's Pay? You Are One.

Labor Secretary Tom Perez came into office pledging to create good jobs and take on the economic injustice that oppresses blue-collar workers, from raising the minimum wage and restoring unpaid overtime to combatting wage theft. Luckily, the head of his Wage and Hour Division, David Weil, the author of a revelatory report on how to make the most of strategic enforcement, has moved out quite aggressively.  It’s a pity that other, even more serious crimes, don’t seem to get the same priority from elsewhere in the Labor Department.

Yesterday, Weil and New York State Attorney General Eric Schneiderman announced that they’d filed charges and secured a guilty plea from the owner of nine Papa John’s restaurants who did not pay his workers the minimum wage, stole some of the wages they owed the workers, and fabricated tax returns to cover up his misdeeds. 

“My office will not hesitate to criminally prosecute any employer who underpays workers and then tries to cover it up by creating fake names and filing fraudulent tax returns,” said Schneiderman.  Added Weil, “This judgment should be a wake-up call for all employers who think they can break the law, not pay their workers, cover it up and get away with it.  It is part of our commitment to ensure that employers who play by the rules aren’t unfairly undercut by competitors who cheat, and that workers are guaranteed a fair day’s pay for a fair day’s work.”

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CPR Scholars Submit Amicus Brief in Supreme Court Case FERC v. Electric Power Supply Association

Today, CPR Member Scholars, with a larger group of law professors, submitted an amicus brief to the Supreme Court in the case of Federal Energy Regulatory Commission (FERC) v. Electric Power Supply Association.

The professors submitted the brief because, "they believe that the U.S. Court of Appeals for the District of Columbia Circuit made serious errors when it held that the Federal Energy Regulatory Commission (FERC) lacked authority to regulate operators’ rules for demand response (DR) in the wholesale electricity markets. That holding is contrary to the text, history, and structure of the Federal Power Act (FPA), which mandates that FERC must remedy 'practices . . . affecting' wholesale electricity rates to ensure such rates are just and reasonable. Moreover, it ignores FERC’s reasonable interpretation of its statutory authority."

 

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The Real Nine Most Terrifying Words in the English Language

“I’m Republican, and I want to do regulatory reform.”  Whether they’ve uttered that exact nine-word phrase or not, virtually every Republican on Capitol Hill has enthusiastically endorsed the sentiment it expresses at some point—if not on a near-daily basis—during the last few years.  Who could blame them?  The unshakable conviction that our regulatory system is broken and that gutting it is the key to its salvation is apparently one of the few areas where all the GOP’s members can find common ground.  Attacking the regulatory system has become a safe topic of conversation for conservatives—almost their version of “weather” small talk.  And not for nothing, they’re pretty confident it’s a political winner, too.

Witness this week, when both the House and the Senate have scheduled oversight hearings for the White House Office of Information and Regulatory Affairs (OIRA)—an obscure bureau with a direct political line to the Oval Office that is charged with reviewing agency regulations.  In practice, OIRA serves as the single most powerful antiregulatory force in the rulemaking process, translating the White House’s political calculations and intense lobbying behind closed doors from well-connected corporate interests into the delay, dilution, or death of pending regulations.  To my knowledge, both chambers of Congress have never scheduled two OIRA oversight hearings in the same week before.

CPR Member Scholar Noah Sachs is scheduled to testify at the hearing before the House Judiciary’s Subcommittee on Regulatory Reform, Commercial, and Antitrust Law today.  As he explains in his testimony, OIRA is arguably one of the greatest sources of dysfunction in the rulemaking process, working time and again to prevent agencies from carrying out their statutory missions of protecting people and the environment in an effective and expeditious manner.  Specifically, he writes:

Not only does OIRA review extend the length of time for rulemaking, but it also provides numerous opportunities for political interference with the content of the rule.  During OIRA review of agency regulations, industry lawyers and lobbyists use OIRA as a court of last resort to weaken or block pending regulations that have been vetted within the agency that promulgated them.

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Join Us for a Discussion of Rena Steinzor's Book, 'Why Not Jail?'

Public Citizen to host discussion of CPR Member Scholar Rena Steinzor’s new book, “Why Not Jail?  Industrial Catastrophes, Corporate Malfeasance, and Government Inaction.” 

On Monday, July 20, 2015 Public Citizen, the Center for Progressive Reform and the Bauman Foundation will lead a discussion focused on CPR’s immediate past president and University of Maryland Law School professor Rena Steinzor’s book, “Why Not Jail?  Industrial Catastrophes, Corporate Malfeasance, and Government Inaction.” 

Watch and listen to a recording of this discussion.

 

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Supreme Court's Mercury Decision Did Not Usher in Sunstein's 'Cost-Benefit State'

In Michigan v. EPA, handed down two weeks ago, the Supreme Court waded into the decades-long debate over the use of cost-benefit analysis (CBA) in agency rulemaking.   The decision struck down EPA’s limits on mercury emissions from power plants for the agency’s failure to consider costs, and so appears, superficially at least, like a win for the pro-CBA camp.  Indeed, Professor Cass Sunstein of Harvard—President Obama’s former “regulatory czar” and one of CBA’s most prominent cheerleaders—has been crowing about the opinion, hailing it as “a rifle shot,” ringing in the arrival of “the Cost-Benefit State.” 

But Sunstein’s celebration is a bit premature; his so-called “cost-benefit state” remains mostly in his imagination.  In fact, there is good reason to believe that the Court remains quite skeptical of the particular brand of CBA that Professor Sunstein advocates.  And that’s very good news for the rest of us.

 

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New CPR Issue Alert: Earmarking Away the Public Interest

House GOP’s “Negative Earmarks” in Appropriations Bill Would Undercut Key Protections and Cost Thousands of Lives

Today, the Center for Progressive Reform released a new Issue Alert, “Earmarking Away the Public Interest: How Congressional Republicans Use Antiregulatory Appropriations Riders to Benefit Powerful Polluting Industries.” The report, by CPR Member Scholars Thomas O. McGarity of the University of Texas School of Law and Richard Murphy of Texas Tech University School of Law and CPR Senior Policy Analyst James Goodwin, examines “negative earmarks” — riders attached to must-pass appropriations bills that block agencies from taking specific actions to protect public health, safety, and the environment.

The report compares this type of attack on public safeguards, attached to legislation without public scrutiny, to the “positive” earmarks like the “Bridge to Nowhere” that Congress has moved in recent years to prevent.

 

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Two Interesting Things About the Chesapeake Bay TMDL Decision

In a blog post yesterday, Todd Aagaard provided a quick summary of yesterday’s Third Circuit decision rejecting the Farm Bureau Federation’s challenge to the Chesapeake Bay TMDL.  This is an interesting and important case, and it will take a while to digest.  But just based on a preliminary read, a few issues seem particularly interesting and important.

What does TMDL mean?  The Third Circuit interpreted section 303(d) in a way that seems to afford EPA—and the states—discretion in determining the content of TMDLs.  The Farm Bureau’s core argument was that a TMDL should only specify a daily mass of allowable pollutants, and that anything else—for example, a division of that mass into load and wasteload allocations, or into further subdivisions—exceeded the authority granted under the Clean Water Act.  The Third Circuit rejected that argument, instead concluding that “’total maximum daily load’ is a term of art meant to be fleshed out by regulation, and certainly something more than a number.”

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With Right to Marry, Same-Sex Spouses Now Eligible for Hundreds of Employment Benefits

The Supreme Court’s decision on June 26 recognizing same-sex couples’ fundamental right to marry is a significant, albeit long overdue, civil rights victory for the LGBT community and for our nation.  You don’t have to look any further than the long list of benefits available only to married couples to see how denying same-sex couples the right to marry or refusing to recognize their marriage performed in another state is discriminatory.  Fortunately, the Court’s ruling means same-sex spouses will now become eligible for these benefits no matter where they reside.

 

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