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March 9, 2021 by Alejandro Camacho, Melissa Kelly

Court Favors Deliberative-Process Privilege Protections over FOIA Transparency Goals

This post was originally published on SCOTUSblog. Reprinted under Creative Commons license CC BY-NC-ND 3.0.

Notwithstanding the Freedom of Information Act's primary goal of promoting transparency in government decision-making, the Supreme Court on Thursday ruled by a 7-to-2 vote that the public policy of facilitating agency candor in exercising its expertise in preliminary agency deliberations can outweigh such transparency and accountability concerns. Justice Amy Coney Barrett delivered the 11-page opinion, her first majority opinion since joining the court in October. It was a natural debut given that the case, U.S. Fish and Wildlife Service v. Sierra Club, was the first oral argument that Barrett heard after joining the bench.

The case presented the question of whether FOIA's deliberative-process privilege exempts from disclosure certain documents prepared during a statutorily required interagency consultation process between the U.S. Fish and Wildlife Service and National Marine Fisheries Service (collectively, "the services") and the Environmental Protection Agency.

In the interest of transparency, FOIA provides the public with a right to access federal records, but exempts certain records from disclosure, including those that would be privileged against discovery in civil litigation. These include records that fall under the deliberative-process privilege, which promotes candor …

March 8, 2021 by Maggie Dewane
Womens Day

Change is a natural phenomenon, though it is often met with resistance and skepticism. Women, who are responsible for countless social, cultural, political, scientific, and economic achievements that have shaped the world, have stood in the face of such resistance, particularly when confronted with unequal opportunity and rights. 

International Women’s Day celebrates the changes made by women and calls for action to accelerate women’s equality. This year, International Women’s Day notes that a challenged world is an alert world, and from challenge comes change

At the Center for Progressive Reform, the women on our staff “choose to challenge” existing norms so that we may create a just America that works for all people and our planet. Below, our women staff describe what motivates them to work for all Americans.

The women of CPR

Maggie Dewane, Digital Media Manager — My mother worked for the Department of Veterans Affairs for …

March 8, 2021 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

The COVID pandemic has provided a vivid picture of what happens when ill-prepared governments are suddenly hit with huge responsibilities. Underfunded state and local public health agencies were overwhelmed, while governors and local officials found themselves struggling to obtain and distribute vital supplies, from respirators to vaccines. Efforts to accelerate the transition away from carbon, such as a green stimulus, may run into similar problems if we neglect the agencies that will have to implement policies.

People tend to think of the energy transition in terms of wind turbines, solar panels, batteries, and charging stations for electric vehicles. That can presumably be accomplished through mandates to utilities or financial incentives. The trouble is that all of these changes have to function in connection with a power system that wasn’t built to accommodate them. That requires …

March 5, 2021 by Hannah Wiseman, Maggie Dewane
Solar Energy and Electricity

Hannah Wiseman

To commemorate Women’s History Month, we’re interviewing women at the Center for Progressive Reform about how they’re building a more just America, whether by pursuing a just transition to clean energy, protections for food workers, or legal support for American Indians. This week, we spoke with Hannah Wiseman, a professor at Penn State University who teaches and writes about energy and environmental law and land use regulation. 

CPR: What motivated you to become an expert in energy law and a voice for a just energy transition in the United States? Is there historical context to this or a moment in history that stood out to you as motivation or inspiration? 

HW: When I was working in Texas in 2008, two types of energy development were booming: hydraulic fracturing (“fracking”) for natural gas (“gas”) and wind energy. It became clear that we were at a …

March 3, 2021 by Sidney Shapiro
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Amid the Sturm und Drang (storm and stress) of politics these days, one fact stands out — a large majority of Americans want more regulatory protection in a wide variety of areas, according to a recent poll of likely voters.

The results are consistent with previous polls that indicate that Americans understand the importance of government regulation in protecting them from financial and health risks beyond their control. They also indicate majority support for efforts by the Biden administration to renew government regulation — as well as a stark repudiation of former President Trump’s extreme anti-regulatory agenda.

The poll, conducted in January by Data for Progress and the Center for Progressive Reform, found that a majority of likely voters favor more regulation of drinking water pollution (74 percent); consumer product safety (71percent); privacy data (70 percent); air pollution (68 percent …

March 2, 2021 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

"The social cost of carbon" isn't exactly a household phrase. It's an estimate of the harm caused by emitting a ton of carbon dioxide over the many decades it remains in the atmosphere. That's an important factor in calculating the costs and benefits of climate regulations. For an arcane concept, it has certainly caused a lot of controversy. The Obama administration came up with a set of estimates, which Trump then slashed by 90 percent.

In an early executive order, Biden created a task force to revisit the issue. Last week, the task force issued its first report. It's an impressive effort given that Biden is barely a month into his presidency. The document provides a clear overview of the ways in which climate science and climate economics have advanced since the Obama estimates and makes …

March 1, 2021 by Katlyn Schmitt
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Businesses that violate environmental laws and permits damage our air, land, and water, sometimes irreparably. Yet too often, these polluters aren't held accountable for harming the environment and public health. In Maryland, state officials don't respond to all violations, and, when they do, they aren't always successful. Even when they are successful, fines and other penalties don't necessarily result in behavior change. As a result, Maryland polluters are largely off the hook for the "externalities" of doing business.

To deter pollution, we need true accountability. We must ensure polluters pay for all harm done, whether to the environment, humans, and other species and habitats. Unfortunately, Maryland, like most other states, is a long way from achieving this goal. At CPR, we're tracking bills in the Maryland legislature that, if passed, would set the state on a path to greater compliance with environmental laws. These bills would:

  • Enforce …

Feb. 26, 2021 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

In the wake of the Texas blackouts, we're seeing a number of familiar moves to deflect blame by the usual suspects — politicians, regulators, and CEOs. These evasive tactics all begin with a core truth: Eliminating all risk is impossible and would be too expensive even if it weren't. But then they spin that truth in various ways. The result is to obscure responsibility for the disaster and the steps that should be taken going forward.

Here are some of the most common dodges — not counting such crass moves as blaming everything on the Green New Deal or the media.

Dodge #1: No one could have foreseen this event! This often sounds reasonable. How could anyone have foreseen that New Orleans' levees would simply collapse, or that a historic tsunami would hit the nuclear reactors at Fukushima …

Feb. 25, 2021 by Allison Stevens
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Seven years ago, public officials in cash-strapped Flint, Michigan, cut city costs by tapping the Flint River as a source of public drinking water.

So began the most egregious example of environmental injustice in recent U.S. history, according to Paul Mohai, a founder of the movement for environmental justice and a professor at the University of Michigan School for Environment and Sustainability.

When they made the switch, city officials didn’t properly treat the new water, which allowed lead from corroded pipes, bacteria, and other contaminants to leach into the public drinking water supply. Flint residents, who are disproportionately low-income and Black, immediately raised alarms about the fetid, brown water flowing out of their faucets and cited health problems, such as hair loss and rashes.

But the city didn’t officially acknowledge the problem or begin to take decisive action until a year and a half …

Feb. 24, 2021 by Robert Verchick
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Since I began serving on Louisiana’s Climate Initiatives Task Force, charged with finding a way to zero out net greenhouse-gas emissions by 2050, there is one question I get from people more than any other: “C’mon, are you serious?”

It’s not that Louisianans don’t see the need. Sea-level rise could soon swallow our coast, and hurricanes souped up by climate change are now the new normal.

The problem is how we see ourselves. Louisiana, I’m reminded, is an oil-and-gas state. Whatever were we thinking?

My quick response is Louisiana is really an energy state, with more sun and offshore wind than most of our peers.

My longer answer is that I really don’t know how serious we are. But I’ve started following a trio of issues that could tip the scale …

CPR HOMEPAGE
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