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Remember the Gulf Walrus! One Big Lesson from the BP Oil Spill

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.

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Urban Parks and the Public Trust Doctrine: A Pending New York Lawsuit and Its Implications

Urban parks are a much-prized resource. They provide city dwellers with safe places to relax, walk their dogs, supervise their children at play, plant gardens, contemplate nature, pursue recreational activities, and escape the multiple stresses of urban life. At the same time, however, particularly in prosperous cities where open land is scarce and real estate values are high and growing ever-higher, some urban parks are under threat. Where they feel they can find legal avenues to do so, developers who wish to acquire land on which to construct new structures for private use often target parcels of parkland for purchased and development.

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The First Earth Day and Current Political Gridlock

Forty-five years ago I joined hundreds of people in Fairmont Park in Philadelphia for the first Earth Day.  The sad state of the environment on that day was all too apparent.  The Cuyahoga River in Cleveland was so polluted that it caught on fire the year before.   The 1969 Santa Barbara oil spill is still the third largest oil spill in American history. The air pollution in America’s cities – palpable air – had reached epidemic proportions.  Rachael Carson’s book, Silent Spring, detailing the adverse impact of toxic chemicals on the environment was eight years old, having been read by hundreds of thousands of people. 

In today’s gridlocked political environment, it is worth asking whether Earth Day still provides any lessons for the continuing struggle to protect the environment.

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The Importance of the Murray Energy Case and Administrative Procedure

Last week, the D.C. Circuit heard oral argument on a highly unusual attempt to short-circuit EPA’s rulemaking process for greenhouse gas regulation of existing power plants.  Despite statutory and constitutional hurdles to premature litigation, the petitioners—the coal-fired industry and coal-producing states—argued that the importance of the proposed rule justifies court intervention.

The rule’s importance is precisely why it is critical that the agency complete the administrative process.

That industry groups will file lawsuits over EPA’s greenhouse gas initiatives is unremarkable.  After all, litigation is to be expected:  frequently, both the regulated community and public interest groups challenge major environmental rules.  Nor is it unusual that interested parties may attempt to hijack a regulatory policy before a rule is finalized.  Scholars have documented (for example, here, here, and here) the many contacts between agencies and regulated industries that occur at various stages of a rules’ development.  What is more, contacts—from any interested party—are perfectly legal provided the agency discloses anything it relies on in support of the rule.  Congressional pressure and Presidential direction may also be brought to bear on agencies during their decisionmaking processes.

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Meet CPR’s New Chesapeake Bay Policy Analyst

The Center for Progressive Reform is excited to welcome its new policy analyst, Evan Isaacson who will focus on the Chesapeake Bay.  Isaacson succeeds Anne Havemann, and will continue her sterling work on the intersection of state and federal environmental regulations and the Bay.

Mr. Isaacson joins CPR after eight years on staff at the Maryland General Assembly, where he served as an analyst in the Natural Resources, Environment, and Transportation workgroup, as well as counsel to the Joint Committee on Administrative, Executive, and Legislative Review.  According to CPR Executive Director Matt Shudtz, “Evan has been involved in practically every important legislative effort affecting the Bay in Maryland for the past 7 years. We are looking forward to tapping into his expertise to continue Anne Havemann’s great work in watchdogging federal and state agencies tasked with protecting the Bay.”

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The Stuff of an 'Extraordinary Writ' or a Hum-drum Administrative Law Case?

Reflections on the April 16th Oral Argument in Murray v. EPA and West Virginia v. EPA

In a rulemaking there is a provision for judicial review, right, it’s not going to be a question that’s avoided . . . when the rule comes out, it’s going to be challenged, we’re going to get to it.  Why in the world would we resort to an extraordinary writ, which we have never used before?  So it really is quite unusual.

-  Judge Griffiths, remarking on the petitioner’s claim to jurisdiction in  Murray Energy v. EPA and West Virginia v. EPA, D.C. Circuit Court, Oral Argument, April 16, 2015.

This statement by Judge Griffiths during Thursday’s oral argument on the states’ and utility companies’ challenge to EPA’s proposed Clean Power Plan rule pretty much sums up the skepticism voiced by he and Judge Kavanagh in hearing the case prior to EPA’s promulgation of a final rule.  Despite the petitioners’ efforts to paint their challenge as justified by extraordinary aspects of the case, at least these two judges seemed to be having a hard time understanding the case as posing anything other than a garden-variety question of administrative law.  As a result, while it is always somewhat risky to predict a case outcome based upon oral argument, all clues point to a 2 – 1 majority (Judge Henderson dissenting), dismissing the appeal.  It could be a short-lived victory, however, as in contrast to the jurisdictional question, the panel’s views on the merits of the petitioners’ challenge – that EPA lacks authority to regulate existing power plants under Section 111(d) of the Clean Air Act considering the agency’s prior regulation of the mercury emissions of such plants – was anything but clear.  

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Becoming an Environmentalist on the Neches River

Growing up in Port Neches, Texas, long before anyone ever heard of Earth Day, it was not hard to be an environmentalist. 

When my father announced that the family would be moving to Port Neches, he tried to soften the blow to his 13-year-old son by stressing the fact that we would be living across the street from the city park and that the Neches River ran along one end of the park.  For the remainder of the summer, I could go fishing any time I wanted.

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CPR Announces Appointment of New President: Robert R.M. Verchick

Rena Steinzor Steps Down after Seven Years at Helm, Succeeded by Loyola 
University New Orleans College of Law Professor, Former EPA Official 

 

The board of directors of the Center for Progressive Reform today announced the appointment of Robert R.M. Verchick to be the organization’s third president, succeeding Rena Steinzor, who has served in the post for the past seven years.

Verchick holds the Gauthier~St. Martin Eminent Scholar Chair in Environmental Law at Loyola University New Orleans College of Law, and is also the Faculty Director of Loyola’s Center for Environmental Law. In addition, he is a Senior Fellow in Disaster Resilience Leadership at Tulane University. He is an expert in climate change law, disaster law, and environmental regulation. In 2009 and 2010, he served as Deputy Associate Administrator for Policy at the U.S. Environmental Protection Agency. In that role he helped develop climate adaptation policy for the EPA and served on President Obama's Interagency Climate Change Adaptation Task Force. In the fall of 2012, he researched climate adaptation policies in India as a Visiting Scholar at the Centre for Policy Research in New Delhi, supported by a Fulbright Award.

Verchick succeeds Professor Rena Steinzor of the University of Maryland’s Carey School of Law, who has served in the post since January of 2008. Steinzor continues as a Member Scholar of the organization.

“Rob Verchick is the ideal choice to be CPR’s next president,” Steinzor said in announcing the transition. “He brings a wealth of policy experience — in government and in academia, and more than that he brings the energy, talent, and enthusiasm to the task that I know will make him a great success. I’ve enjoyed my work as President of CPR more than words can express, and I’m particularly proud to have been able to guide the organization to the point that a second generation of organizational leaders, led by Rob, is now taking on the challenge of guiding the organization. That’s a milestone for us, as it would be for any organization.”

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CPR Member Scholars Call on Congress to Reject 'Unnecessary' and 'Unwise' REINS Act

This morning, the House Judiciary Committee is holding a markup on the Regulations from the Executive in Need of Scrutiny Act of 2015, or REINS Act (H.R. 427).  Even among the many extreme antiregulatory bills that Congress has considered this session, the REINS Act still stands out for its breathtaking audacity.  If enacted, this bill would block the most important environmental, safety, and public health regulations from taking effect unless Congress affirmatively approves them within the extraordinarily short period of 70 session days or legislative days.  It is not a stretch to say that many regulations that are now benefitting millions of Americans—such as those limiting lead in gasoline or requiring air bags in automobiles—would never have seen the light of day had the REINS Act been in place.  Versions of this bill have been introduced in both chambers of Congress over the last several sessions, but fortunately none have been enacted into law.

In response to this bill, 83 of the nation’s leading experts on administrative law and regulatory policy have signed on to a letter to the members of Congress expressing their concerns with the REINS Act.  Among the concerns described in the letter are that “the REINS Act would replace the strengths of agency rulemaking with the weaknesses of the legislative process” and that the bill is “counter-democratic.”  Twenty-six CPR Member Scholars were among the experts to sign on to the letter.

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Defeating the Public Interest One Bill at a Time: The ALERT Act (H.R. 1759)

 

Background:  Tomorrow, the full House Judiciary Committee will be holding a markup of the H.R. 1759, the All Economic Regulations are Transparent Act of 2015 (ALERT Act), sponsored by Rep. John Ratcliffe (R-Tex.).  The House of Representatives considered a similar bill during its last session.  (The hearing is also noteworthy, because the committee will be marking up H.R. 427, the Regulations from the Executive in Need of Scrutiny Act of 2015, or REINS Act.  For more information on the REINS Act, see here.)

What the ALERT Act does:  The bill would impose a series of new burdensome reporting requirements on agencies and the White House Office of Information and Regulatory Affairs (OIRA) regarding the progress and impacts of the agencies’ pending rulemakings.  Once a month, agencies would have to provide detailed information about any rules that they are working on, while OIRA would have to issue an annual report detailing the cumulative costs of all rules that have been proposed or finalized during the previous 12 months.  Agencies also would be blocked from implementing their final rules for at least six months until after they have published certain information about the rules on the internet.

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