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May 25, 2022 by Daniel Farber

After the Court Rules: Gaming out Responses to a Cutback in EPA Authority

This post was originally published by Legal Planet. Reprinted with permission.

In West Virginia v. EPA, the U.S. Supreme Court is reviewing former President Obama’s Clean Power Plan. The Clean Power Plan (CPP) itself no longer has any practical relevance, but there’s every reason to predict the Court will strike it down. The big question is what the Biden administration should do next. That depends on the breadth of the Court’s opinion.

The Clean Power Plan was the centerpiece of the Obama administration’s climate policy. It had three pillars: (1) reductions in emissions from coal-fired power plants; (2) shifts by the owners of coal plants to gas and renewables, and of gas-fired plants to renewables; (3) shifts by states toward the same kinds of shifts for their overall power mixes.

The Clean Power Plan has no practical significance today: the deadlines in the plan have long since passed, and the United States has achieved the plan's national target for other reasons, even though the plan itself never went into effect. The Trump administration said that the second two prongs, involving shifts away from coal and toward renewables, went beyond EPA’s powers under the Clean …

May 24, 2022 by M. Isabelle Chaudry
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Conventional wisdom holds that seeing "natural" and “organic" on product labels somehow means the companies selling those goods are using better, safer ingredients. However, these words often offer a false promise to consumers and the planet.

For instance, "natural," which is a relatively broad word, has no concrete, recognized definition in the industry, and it isn’t currently regulated. The federal agencies that oversee the sale and advertising of cosmetics, the Food and Drug Administration (FDA) and the Federal Trade Commission (FTC), still have not formally defined this term as it applies to cosmetic products.

Despite this, cosmetic makers often tout natural ingredients, implying that they are less polluting and therefore better for the environment. On the contrary, the “natural" ingredients in personal and skin care products often contribute to pollution, habitat destruction, and climate change.

Take palm oil, for example. This widely used vegetable oil …

May 24, 2022 by Bill Funk
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The Fifth Circuit Court of Appeals ruling in Jarkesy v. Securities and Exchange Comm'n is a potential blockbuster. In 2020, the Securities and Exchange Commission (SEC) held that George Jarkesy had engaged in misrepresentation in certain public statements, thereby committing securities fraud. The SEC ordered Jarkesy to cease and desist and to pay a civil penalty. In addition, the agency barred him from certain securities industry activities.

Jarkesy petitioned for review of the SEC's decision. In that petition, he did not challenge the agency's substantive decisions. Instead, he argued that the decision was unconstitutional for three reasons: Jarkesy had a right to a trial by jury, rather than an administrative decision; the decision flowed from an improper delegation of legislative authority to the SEC; and because the administrative law judge (ALJ) who rendered the initial decision was unconstitutionally protected from removal except for cause.

The Fifth Circuit …

May 23, 2022 by Alex Kupyna
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While the Center for Progressive Reform staff advocate for stronger protections from toxic chemical spills, none of our experts assumed that one of our own would gain firsthand experience on the matter.

That all changed last January, when Board Member and Scholar Sid Shapiro received a surprise midnight phone call warning him that a nearby fertilizer plant in Winston-Salem, N.C., had just caught fire. Inside the plant and stored in a tank outside were 500 tons of highly explosive ammonium nitrate, threatening to incinerate nearby communities.

In the In Our Backyard Podcast, hosted by the Blue Ridge Environmental Defense League, Shapiro, David Flores, a former senior policy analyst at the Center, and Senior Policy Analyst Darya Minovi shared their perspectives on the Winston-Salem incident and what it means for communities at risk of chemical spills, which are disproportionately low-wealth communities of color. They explored the health …

May 19, 2022 by Jake Moore
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In 2001, an explosion at the Motiva Enterprises Delaware City Refinery caused a 1 million gallon sulfuric acid spill, killing one worker and severely injuring eight others.

In 2008, an aboveground storage tank containing 2 million gallons of liquid fertilizer collapsed at the Allied Terminals facility in Chesapeake, Virginia, critically injuring two workers exposed to hazardous vapors.

In 2021, the release of over 100,000 gallons of chemicals at a Texas plant killed two contractors and hospitalized 30 others. In addition to injury and death, workplace chemical spills and exposures contribute to an estimated 50,000 work-related diseases such as asthma and chronic lung disease each year, as well as nearly 200,000 hospitalizations.

The Occupational Safety and Health Administration (OSHA) was created to reduce risks and hazards to workers, and to prevent incidents like these. However, following through on this promise has been another matter.

OSHA …

May 4, 2022 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

Soon after Trump took office, Republicans used the Congressional Review Act (CRA) to overturn sixteen Obama-era regulations. If they win control of the government in 2024, they'll undoubtedly do the same thing to Biden regulations. It behooves us, then, to understand the effect of these legislative interventions. A Ninth Circuit ruling last week in a case involving bear baiting, Safari Club v. Haaland sheds new light on this murky subject.

The CRA provides a fast-track process for Congress to repeal administrative regulations. Such a repeal also impacts the agency's power to issue new regulations. In the absence of further legislation, an agency may not reissue the rule in "substantially the same form" or issue a "new rule that is substantially the same" as the overturned rule. As a thorough report by the Congressional Research Service explains …

May 2, 2022 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

Court watchers and environmentalists are waiting with bated breath for the U.S. Supreme Court to rule on West Virginia v. EPA, the Court's most important climate change case in a generation. The issue in that case is what, if anything, the U.S. Environmental Protection Agency (EPA) can do to regulate carbon emissions from power plants and factories. Last week, conservative states asked the Court to intervene in another climate change case. How the Court responds could give us hints into just how far the activist conservative majority is likely to go in the West Virginia case.

The new case is a challenge to the government's use of the social cost of carbon in making decisions about regulation. The social cost of carbon is an estimate of the harm done by the emission of a …

April 27, 2022 by James Goodwin
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Few policy questions have a more profound impact on our day-to-lives than how we produce, transport, and use energy. Whether it’s a fight against the siting of a polluting natural gas facility in a historically Black community, the catastrophic failure of an electric grid following a winter storm, foreign wars causing price shocks that further hollow out the fixed incomes of America’s older adults, or an abiding concern over leaving our grandchildren a habitable climate — all these issues and more make energy policy a central concern for the public.

Despite this broad-based and deep concern, the public remains largely excluded from participating in the development of energy policy — much less shaping it. Instead, corporate insiders still retain outsized influence over the energy policymaking process, leaving policymakers with a skewed perspective on issues they address through regulation, which ultimately undermines the quality and legitimacy of those …

April 26, 2022 by M. Isabelle Chaudry
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Earlier this month, HBO Max aired an important series about toxic ingredients in cosmetic products. The series also examined the professional beauty industry and the health effects to workers exposed to toxic ingredients.

Toxic ingredients are found in cosmetics and other personal care products. The toxic chemicals used in them have been linked to a wide range of health problems, including ovarian cancer, breast cancer, early-onset puberty, fibroids and endometriosis, miscarriage, poor maternal and infant health outcomes, diabetes and obesity, and more. As I noted in Not So Pretty, "There is a loophole in federal regulation that allows industry to use almost any ingredient and label it as 'fragrance.'"


The HBO Max documentary Not So Pretty is available to stream now.

Cosmetics and other personal care products are regulated by the U.S. Food and Drug Administration (FDA) under the Federal Food, Drug, and Cosmetic Act …

April 25, 2022 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

Last week, the White House undid an effort by the Trump administration to undermine the use of environmental impact statements. The prior rules had been in effect since 1978. Restoring the 1978 version was the right thing to do. The Trump rules arbitrarily limited the scope of the environmental effects that the U.S. Environmental Protection Agency (EPA) can consider under the National Environmental Policy Act (NEPA). Their goal was clearly to prevent consideration of climate change.

More specifically, the Trump revision cut references to indirect or cumulative environmental impacts and discouraged consideration of effects that are remote in time, geographically remote, or the product of a lengthy causal chain. These restrictions flew in the face of everything we know about harm to the environment. We know that harm is often long-term rather than immediately obvious …

CPR HOMEPAGE
More on CPR's Work & Scholars.
May 25, 2022

After the Court Rules: Gaming out Responses to a Cutback in EPA Authority

May 24, 2022

What the Fifth Circuit Got Wrong About the 7th Amendment in Jarkesy

May 24, 2022

The Impacts on Climate: Chemicals in Cosmetics

May 23, 2022

Center Experts Lend Their Voices to Podcast on Environmental Justice and Chemical Disasters

May 19, 2022

Worker Safety Means Environmental Regulation

May 4, 2022

Clarifying the Congressional Review Act

May 2, 2022

Taking the Supreme Court's Temperature on Global Warming