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West Virginia's Bay TMDL Progress Needs to Accelerate

Editors’ Note:  This is the sixth in a series of posts on measuring progress toward the 2017 interim goal of the Bay TMDL.  The first five posts cover the region as a whole, and then MarylandPennsylvania, New York, and Virginia, Future posts will explore the progress of the two remaining jurisdictions.

Like New York, the State of West Virginia can seem a bit distant from the Chesapeake Bay and the process of implementing the Bay Total Maximum Daily Load (Bay TMDL).  But, even though most of the state’s waterways drain into the Ohio River rather than to the Bay, some of the fastest growing counties in West Virginia are those surrounding the Potomac headwaters, and a short drive to the Bay itself.  West Virginia has experienced at least some success to date in reducing nutrient and sediment pollution under the Bay TMDL, but recent information from the Chesapeake Bay Program and the U.S. Environmental Protection Agency (EPA) paints a confusing picture of this progress. 

Another similarity between the portions of West Virginia and New York within the Bay watershed is the geography and various sources of pollution.  The share of nitrogen pollution coming from each state’s vast forests and ambient air is nearly identical at about 29 percent of the total (the highest percentage among the seven jurisdictions), and the agricultural sector in each state represents between 40 percent and 50 percent of total nitrogen pollution.  Additionally, West Virginia, like New York, has made the decision to overemphasize reductions – relative to their share of the pollution problem – from the agricultural sector in its state Watershed Implementation Plan (WIP) to meet the goals of the Bay TMDL.

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The President’s Schizophrenia on the Working Class

President Obama’s approval rating is up to 50 percent for the first time in two years after a stellar period of national reconciliation and the safeguarding of Obamacare, his signature, and truly momentous, achievement.  The president, in fulfillment of his noble promises to help the middle class, is about to put his weight behind a Labor Department rule that would hike minimum earnings needed to earn overtime pay, a proposal that would affected 5 million Americans.  These accomplishments remind people why they voted for him in the first instance and returned him to office by a very comfortable margin. 

But for those of us who believe that people should be able to go to work without getting sick or dying, a remarkable series of stories by the Center for Public Integrity can only strengthen the despair that has been building slowly since the president took office.  The series describes an Occupational Safety and Health Administration (OSHA) so impotent with respect to pervasive workplace hazards that it is fair to ask whether this 45-year old institution is fundamentally irrelevant to most American workers.  

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17 hours ago Michigan v. EPA: Costs Matter, But Everything Else Is Up For Grabs

In Michigan v. EPA, the Supreme Court reviewed the Environmental Protection Agency's decision to regulate power plants under section 112 of the Clean Air Act. Section 112 is the provision regulating toxic air pollutants, such as mercury. The question before the Court was whether EPA reasonably interpreted the Clean Air Act to allow EPA to decline to consider costs in deciding whether to regulate power plants under section 112. The Court held that it was not reasonable to interpret the Act in this way. Thus, from the Court's decision, we know that EPA must consider costs in deciding whether to regulate power plants under section 112. There are, however, important questions that remain:

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The Supreme Court Gives Power Plants a Mercury Break

Yesterday, the Supreme Court in Michigan v. EPA threw out EPA’s regulations protecting the American public from mercury and other hazardous emissions of power plants.

In another instance of judicial activism by the Roberts court, the majority refused to defer to EPA’s decision to ignore costs in deciding whether to regulate power plant emissions.

The decision turned on the meaning of the word “appropriate” in a section of the Clean Air Act that addressed hazardous air pollutant (HAP) emissions from fossil fuel-fired power plants. Before EPA subjected HAPs emissions from power plants to stringent technology-based regulations, it had to decide whether regulating those emissions was “appropriate and necessary,” given the other controls that the statute imposed on power plants to reduce acid rain. 

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Michigan V. EPA: Still Hope for the Mercury Rule

Today the Supreme Court blocked a key effort by the Obama administration to keep unsafe levels of mercury and other toxins from spilling into our air. The ruling, issued in Michigan vs. EPA, is a loss for the EPA and public health advocates. But the damage can be contained and will hopefully not prevent the agency from re-issuing its so-called Mercury Rule under a rationale that can satisfy the Court’s newly divined decision-making standards.

At issue was whether the Clean Air Act required the EPA to consider costs to industry when it made the decision to regulate mercury, a known neurotoxin. Because the Act does not mention cost considerations at this early stage of rulemaking, the EPA reasoned such review was unnecessary. At any rate, the EPA had explicitly considered costs in the second stage of analysis when it chose the actual numeric pollution limit. And what it found was that the benefits of the Mercury Rule would exceed the costs by tens of billions of dollars.

Writing for the majority, Justice Antonin Scalia found that the EPA’s failure to consider costs in the early stage of the rule doomed the whole enterprise. The EPA’s decision-making process, according to the Court, did not meet the Act’s requirement of considering all “appropriate and necessary” information.

That’s disappointing, but the loss could have been much worse. In the briefing, opponents of the mercury rule argued to require full cost-benefit analysis rather than simply considering costs. Opponents had also argued that EPA should not be able to count all the indirect health benefits (from reductions in accompanying pollutants) that come from mercury limits. Funny those opponents of the rule had no problem counting the indirect costs that come from mercury limits. The Court’s decision did neither of these two things.

And that leaves open the possibility that the Obama Administration can still keep mercury out of our air. If the courts allow the Mercury Rule to stand until EPA is able to revise its analysis, the agency can then insert a consideration of costs at the earlier stage of its examination. That’s only fair.

Regulations to protect Americans from mercury pollution have been in the works for a long time. Rules to regulate mercury emissions from coal-fired power plants and their co-pollutants were first proposed by the EPA under the Bush Administration. The Obama Administration’s efforts to move the mercury rule would result in between 4,200-11,000 fewer premature deaths a year, 4,700 fewer heart attacks and 130,000 fewer asthma attacks, among other public health benefits.

The Court’s decision was narrow enough to preserve the rule and its vital contribution to public health and the environment.

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Supreme Court's Judicial Activism Leaves Americans Vulnerable to Mercury Pollution

In a sweeping display of judicial activism the Supreme Court has made it much harder for the EPA to protect Americans from the dangers of exposure to mercury emissions.

The Supreme Court today tossed out EPA’s regulations protecting the American public from mercury and other hazardous emissions of power plants. 

Justice Scalia refused to defer to EPA’s decision to ignore costs in deciding whether to regulate power plant emissions.

Unfortunately, this means that EPA will have to go back to the drawing board and make a fresh determination whether it is appropriate to regulate mercury emissions from power plants after considering the costs of the regulations.

Fortunately, EPA has already determined that the benefits of the regulations far outweigh the costs.  The agency just needs to formalize that determination after allowing public comment on it.

The Supreme Court’s decision will not have much of an impact in states that have already established stringent emissions limitation for mercury under their own laws.

But in states like Ohio and Texas, old power plants that have been belching large quantities of mercury and other hazardous pollutants into the air just got an inappropriate reprieve.

 

 

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CPR's Sachs and Shudtz in The Hill: Toxic Ignorance and the Challenge for Congress

Earlier this week, the House of Representatives passed H.R. 2576, an update to the long-outdated Toxic Substances Control Act (TSCA), which governs regulation of toxic chemicals.

CPR Member Scholar and University of Richmond Law School professor Noah Sachs and CPR Executive Director Matthew Shudtz wrote a piece for The Hill, highlighting some crucial problems with the bill the House passed. 

They note:

Both bills, for example, require EPA to move through the backlog of untested chemicals and make safety determinations.  A safety determination is a ruling by the agency about whether the chemical poses ‘unreasonable risk’ to human health or the environment – a first step for further regulatory action.

But astoundingly, the House bill requires the agency to initiate only 10 chemical evaluations per year ‘subject to the availability of appropriations,’ and the Senate bill requires EPA to make these safety determinations for only 25 chemicals over five years.    

Worse yet, the key phrase ‘unreasonable risk’ is left undefined in both bills.  What that means is that when EPA does get around to taking regulatory action, it will be challenged in court.  We will likely see a decade of litigation before the courts sort out the ambiguity and decide how much risk is ‘unreasonable.’ 

To read the entire piece, click here.

 

 

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King v. Burwell and EPA's Climate Rules

The Supreme Court's decision in King v. Burwell is, of course, most important for its central holding that the Affordable Care Act's federal subsidies are available even on federally established health exchanges. The decision preserves health insurance subsidies for millions of people who have begun to benefit from them and avoids the ridiculous spectacle of taking the subsidies away based on four words ("established by the State") in a lengthy and complicated statute.

But for those who, like me, are not health care experts but teach and write in environmental law, the majority opinion by Chief Justice Roberts is principally worth studying for its approach to statutory interpretation. Especially for those following EPA's impending regulation of greenhouse gases from power plants under section 111 of the Clean Air Act, which has already drawn attacks based on a purported lack of statutory authority, the Court's opinion in King v. Burwell strikes some familiar (and possibly unpleasing) chords.

First, the Court in King v. Burwell declined to apply the two-step Chevron framework. 

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House Bipartisanship Throws Up Pitifully Weak Toxic Chemicals Control Act Bill

Anyone who cares about the development of sound public policy has grown distraught over congressional gridlock.  The House and Senate are dysfunctional to an extent not seen in modern times.  Neither is able to develop bipartisan legislation to deal with a slew of urgent social problems, from immigration and the minimum wage to the strengthening of outdated health and safety laws.  But the kneejerk glee that accompanies any bipartisan action regardless of content is just as dangerous.  Take, for example, the bill to “reinvigorate” the Toxic Substances Control Act (TSCA) that just passed the House by a vote of 398 to 1.

The sad truth is that we don’t require enough testing on toxic chemicals before chemical manufacturers market them in this country, and public health has paid a heavy price for this omission.  It’s difficult to think of more than a very small handful of industrial chemicals that have proved less toxic than we originally thought; instead, the more we learn, the more dangerous the vast majority of toxic chemical mixtures prove to be.  TSCA (pronounced like the opera Tosca) was written in 1976 and is overdue for an overhaul.  But the House bill will not solve the acute problems caused by toxic chemicals in the environment, and could even make matters much worse.  This flawed product will meet a Senate bill that is also quite weak, setting up the potential for a “race to the bottom” in conference.  Industry advocates are clearly counting on this dynamic when conferees meet.  And rumor has it that the White House has signaled presidential eagerness to sign a bill, eliminating that critical counterweight to a bipartisan sell-out.

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NY's Bay TMDL Progress Report: Ignoring a Worthwhile Investment

Editors’ Note:  This is the fifth in a series of posts on measuring progress toward the 2017 interim goal of the Bay TMDL.  The first four posts cover the region as a whole, and then Pennsylvania, Virginia, and Maryland.  Future posts will explore the progress of the remaining three jurisdictions.     

So far, we have evaluated progress of the three core jurisdictions in the Chesapeake Bay Watershed in reducing nutrient and sediment pollution under the Chesapeake Bay Total Maximum Daily Load (Bay TMDL).  These “big three” states and members of the Chesapeake Bay Commission are the biggest contributors to the pollution problem affecting the Bay and, at least in the case of Maryland and Virginia, appear to have the most at stake if the Bay itself is finally restored.  But we now turn to the region’s periphery, where the big challenge may be how to motivate the people and policymakers in the Bay’s hinterlands – such as Upstate New York. 

Whatever their motivation, officials in New York State must get their act together quickly.  Looking at data from the Chesapeake Bay Program’s 2014 Model run, New York ranks right up there with Pennsylvania as among the biggest laggards in the watershed.  These are the only two states that the Bay Model indicates have not yet achieved the 2017 interim phosphorus reduction goals.  And New York is dead last among states in reducing its nitrogen loads on a percentage basis, which have actually increased since 2009.  The only good news, if it can be referred to as such, is that New York is a fairly small contributor to Bay pollution at about five percent of the total nutrient loads to the watershed.

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