What Hath FERC Wrought?

by Daniel Farber | July 12, 2018

At the end of June, in a vote divided along partisan lines, the Federal Energy Regulatory Commission (FERC) handed down a sweeping order that will impact electricity markets in a wide swath of the country – likely at the expense of renewable energy and nuclear power. Unfortunately, like Trump's power plant bailout, the result may be to delay the closing of coal-fired power plants. That's a serious problem. A new study by researchers at Resources for the Future shows that a two-year delay in plant closings would cause 353-815 deaths and release 22 million extra tons of carbon. A two-year delay would cause one death for every four or five coal mining jobs it saved for those two years.

The FERC order applies to PJM, which operates a vast part of the national grid encompassing much of the mid-Atlantic, upper South, and Midwest. My first thought was that the order was basically a different version of Trump's bailout plan for coal, but that's unclear to me on closer examination. For one thing, besides taking a swipe at renewables, the FERC order targets nuclear plants that receive state subsidies of the very kind that Trump wants to mandate. But it's clear that both Trump and the GOP majority on FERC look with disfavor on renewable energy.

The FERC order involved what are called capacity markets, which I've discussed at length in an earlier post. As ...

If Confirmed, Kavanaugh Would Tilt Supreme Court against Public Protections

by Matt Shudtz | July 10, 2018
Last night, President Donald Trump set the stage for a contentious debate about American social and economic welfare in the decades to come, nominating a Washington insider with a narrow worldview to the Supreme Court. Brett Kavanaugh's opinions on issues related to reproductive and civil rights are at the forefront of many voters' minds, but there's another danger that deserves just as much attention: What Kavanaugh would do on issues involving protections for consumers, workers, and the environment if confirmed ...

Senate Must Preserve Rule of Law When Considering Benczkowski and Pruitt's Successor

by David Driesen | July 09, 2018
In addition to deciding the fate of a Supreme Court nominee, the Senate must soon consider whether to approve Brian Benczkowski as head of criminal enforcement for the Department of Justice and a nominee to replace Scott Pruitt as EPA administrator. In early 2017, I urged senators to fulfill their constitutional responsibilities by only approving nominees who would faithfully execute the laws of the United States. But the Senate approved Pruitt anyway, with disastrous results. The chamber now needs to ...

Borrowing from CPR Playbook, Small Business Administration Brings New 'Win-Win' Approach to Regulations

by James Goodwin | July 05, 2018
When it comes to regulatory protections for health, safety, and the environment, the Small Business Administration (SBA) and its Office of Advocacy don't always put the public interest first. Falling in line with industry and small-government conservatives, it often opposes public protections, particularly where small businesses are concerned. So I was delighted to see a faint ray of sensibility peek through the SBA's usual anti-safeguard cloud last week when it issued a press release announcing its collaboration with a professional ...

The Chevron Doctrine: Is It Fading? Could That Help Restrain Trump?

by Daniel Farber | July 02, 2018
Cross-posted from LegalPlanet. In June, the Supreme Court decided two cases that could have significant implications for environmental law. The two cases may shed some light on the Court's current thinking about the Chevron doctrine. The opinions suggest that the Court may be heading in the direction of more rigorous review of interpretations of statutes by agencies like EPA and the SEC. That could be important as Trump's deregulatory actions start hitting the judicial docket. Thus, in the short-run, limiting Chevron ...

Scott Pruitt Wants to Pick Winners and Losers by Cooking the Books at EPA

by James Goodwin | June 28, 2018
UPDATE (July 2, 2018): EPA has granted a one-month extension to its original comment period. Public comments on the advance notice of proposed rulemaking are now due on August 13. Soon after his confirmation, EPA Administrator Scott Pruitt quickly set out to take a "whack-a-mole" approach to advancing his anti-safeguard agenda, attacking particular rules designed to protect Americans and the environment from specific hazards – climate change, various air and water pollutants, and so on – one by one. But ...

EPA Releases Expectations for Chesapeake Bay States

by Evan Isaacson | June 22, 2018
This is an update to an earlier post explaining why the release of EPA’s TMDL expectations is important. These posts are part of an ongoing series on the midpoint assessment and long-term goals of the Chesapeake Bay cleanup effort.  This week, EPA’s Mid-Atlantic regional office released its final expectations for how states and their federal partners are to implement the third and final phase of the Chesapeake Bay cleanup process, which runs from 2018 to 2025. The good news is ...

Nothing to Celebrate as TSCA Reform Turns Two

by Katie Tracy | June 22, 2018
June 22 marks the two-year anniversary of the Frank R. Lautenberg Chemical Safety for the 21st Century Act (colloquially referred to as TSCA reform or new TSCA). The 2016 law provided some hope that the U.S. Environmental Protection Agency (EPA) would finally address the potential risks from tens of thousands of untested and unregulated chemicals common in our households and hygiene products, our food and drinking water, our air, and our workplaces. Unfortunately, under President Trump and Scott Pruitt's leadership, ...

Approaching the Chesapeake Bay Midpoint Assessment -- Part II

by Mariah Davis | June 21, 2018
Yesterday in this space, I took a look at the progress that three Chesapeake Bay watershed states – New York, Pennsylvania, and West Virginia – have made in implementing their Watershed Implementation Plans (WIPs), on their way – perhaps – to meeting the Total Maximum Daily Load (TMDL) pollution reduction targets for 2025. In this post, I'll take a look at Delaware, Maryland, Virginia, and Washington, DC. Delaware The Delaware Department of Natural Resources and Environmental Control (DNREC) is leading ...

At Small Business Hearing, CPR's Ristino Will Connect the Dots between Strong Safeguards and Strong Small Farms

by James Goodwin | June 21, 2018
This morning, CPR Member Scholar and Vermont Law School Professor Laurie Ristino will testify at a hearing before the Subcommittee on Agriculture, Energy, and Trade of the House Small Business Committee. The majority's not-so-subtle objective for the hearing is to apply familiar conservative talking points against federal regulations to the specific context of small farms.  In contrast to the subcommittee majority's three witnesses, all of whom represent industry trade associations that have strongly criticized environmental and other regulations in the ...

Approaching the Chesapeake Bay Midpoint Assessment -- Part I

by Mariah Davis | June 20, 2018
The Chesapeake Bay restoration effort is arguably one of the largest conservation endeavors ever undertaken. The Bay watershed is made up of 150 major rivers and streams and contains 100,000 smaller tributaries spread across Delaware, Maryland, New York, Pennsylvania, Virginia, West Virginia and the District of Columbia. It supplies drinking water for more than 17 million residents and is one of the most important economic drivers on the East Coast of the United States. The Chesapeake Bay Total Maximum Daily ...

Deconstructing Regulatory Science

by Wendy Wagner | June 19, 2018
Originally published on The Regulatory Review. Reprinted with permission. The U.S. Environmental Protection Agency (EPA) Administrator Scott Pruitt recently opened another front in his battle to redirect the agency away from its mission to protect human health and the environment. This time, he cobbled together a proposed rule that would drastically change how science is considered during the regulatory process. Opposition soon mobilized. In addition to the traditional forces of public interest groups and other private-sector watchdogs, the editors of the ...

Agency U-Turns

by Daniel Farber | June 18, 2018
Cross-posted from LegalPlanet. The Trump administration is doing its best to wipe out Obama's regulatory legacy. How will the courts respond to such a radical policy change? The philosophical clash between these last two presidents is especially stark, but this is far from being the first time that agencies have taken U-turns. This is the fifth time in the past 40 years that control of the White House has switched parties, with accompanying changes in regulatory approaches. Yet the underlying statutory ...

Laying Down the Law on Rule Delays

by Lisa Heinzerling | June 14, 2018
Originally published on The Regulatory Review. Reprinted with permission. Since the Reagan administration, it has become commonplace for new presidential administrations, in one of their first official acts after inauguration, to freeze at least some pending regulatory actions of the prior administration. These freezes have been of varying breadth and have taken varying forms. The Trump administration’s regulatory freeze was notable for its sweeping scope and blunderbuss execution. In the early months of President Donald J. Trump’s presidency, agencies delayed many ...

Trump's War on Progressive, Competitive Energy Markets

by Hannah Wiseman | June 13, 2018
It is widely recognized that President Trump has pushed an aggressive anti-regulatory agenda on the environmental front, but this agenda often hides a second, anti-free-market battle waged in the energy context. For decades, Congress and the Federal Energy Regulatory Commission (FERC) have worked to move the country toward competitive markets in the sale of wholesale energy – energy that generators sell to utilities, or which utilities sell to each other, and then to retail customers. Congress and FERC believed that ...

Baltimore Sun Op-Ed: Baltimore Employer of Smothered Worker Should Be Held Criminally Accountable

by Rena Steinzor | June 12, 2018
This op-ed originally ran in the Baltimore Sun. On June 5, a 19-year-old construction worker named Kyle Hancock was smothered to death when a deep trench where he was working collapsed. R.F. Warder Inc., the construction company that hired Hancock to help fix a leaking sewage pipe, and the bosses it employed are responsible for his death, plain and simple. Their failure to shore the trench to prevent a collapse was grossly negligent, readily foreseeable, eminently preventable and, therefore, criminal. The ...

Bay Journal Op-Ed: 'Stopping Rules' Would Say When It's Time to Shift from Debating to Acting

by David Flores | June 11, 2018
This op-ed originally ran in the Bay Journal. Reprinted with permission. Science is hard, environmental policy is complicated and regulatory science can seem endlessly confounding. It does not have to be. Earlier this year, the Chesapeake Bay partners stepped into a time-worn trap, heeding calls from overly cautious states to wait for more refined scientific modeling of climate change impacts before taking action to eliminate pollution in the Chesapeake Bay and its tributaries. Having punted action until 2021 at the earliest, ...

Symposium on Regulatory Safeguards Features Warren, Frosh, Three CPR Scholars

by James Goodwin | June 04, 2018
Tuesday afternoon, three CPR Member Scholars – William Buzbee, Lisa Heinzerling, and Rena Steinzor – will be among the experts featured at a major symposium on the threats facing our system of regulatory safeguards. The symposium, The War on Regulation: Good for Corporations, Bad for the Public, was organized by the Coalition of Sensible Safeguards (CSS), which CPR co-leads as an executive committee member, and will include a keynote address from Sen. Elizabeth Warren (D-MA) and closing remarks from Maryland ...
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