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Sept. 28, 2012 by John Knox

<i>Kiobel</i> Returns!

Remember Kiobel v. Royal Dutch Petroleum, argued before the Supreme Court last term?  It’s back – the Court will hear argument again Monday – and bigger than before. 

A brief recap:  For decades, Shell has extracted oil from the Niger Delta, causing extensive environmental degradation.  The government of Nigeria, with the alleged support of Shell, cracked down on protests by the local residents, the Ogoni tribe, by executing their leader, Ken Saro-Wiwa, and eight others in 1995.  Members of the Ogoni, including Esther Kiobel, the widow of one of the executed men, sued Shell in U.S. federal court, claiming that it aided and abetted the Nigerian government in its violations of human rights law.  They relied on the Alien Tort Statute (ATS), a law enacted by the First Congress in 1789, which gives federal courts jurisdiction over claims by aliens arising from torts committed in violation of international law. 

In 2010, the Second Circuit put the brakes on their effort by holding that corporations can neverbe liable under the ATS because corporations can never violate international law.  Other circuit courts disagreed, as did many commentators.  So when the Supreme Court issued cert. in 2011, the plaintiffs had reason to be …

Sept. 27, 2012 by Robert Verchick
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I’ll forego reporting on India today to address a new development in the post-Hurricane Katrina litigation: Judge Jerry Smith’s breathless hairpin turn in the “Katrina Canal Breaches Litigation.” On Monday, Judge Smith, writing for a three-judge panel of the Fifth Circuit U.S. Court of Appeals, dismissed a lawsuit against the U.S. Army Corps of Engineers for flood damage during Hurricane Katrina, a case that could have exposed the federal government to billions of dollars in damages over the next several years. Judge Smith’s opinion reversed a decision he wrote just six months ago, representing the same three-judge panel, which had ruled the plaintiffs’ claims were legitimate and must move forward.

Why the switch? The new opinion suggests it is because the first time around all three judges somehow misunderstood the facts. But that’s unconvincing. A look at the court’s earlier …

Sept. 27, 2012 by Rena Steinzor
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This post was written by CPR President Rena Steinzor and Policy Analyst Wayland Radin.

Today CPR releases Cozying Up: How the Manufacturers of Toxic Chemicals Seek to Co-opt Their Regulatorsexposing the work of the International Life Sciences Institute (ILSI) and Toxicology Excellence for Risk Assessment (TERA), two industry advocacy groups that have undue influence on the regulation of toxic chemicals.  The two firms specialize in a particularly insidious brand of “dirty” science by recruiting EPA experts to co-author papers and participate in policy-making workshops that are heavily biased toward manufacturer interests. 

Americans might reasonably assume that toxic chemicals undergo rigorous, independent testing before they enter the stream of commerce. Regular readers know that’s hardly the case. The Toxic Substances Control Act (TSCA) grandfathered in tens of thousands of chemicals already in use, and new chemicals undergo only a perfunctory, 90-day “pre-manufacture review” by the EPA …

Sept. 25, 2012 by John Echeverria
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The most interesting issues to watch in Arkansas Game and Fish Commission v. United States, which the Supreme Court will hear next week on October 3, are ones the parties have not addressed.  The central issue in the case as framed by the principal briefs is whether a temporary increase in the frequency of inundation of floodplain property as a result of government action should give rise to liability under the Takings Clause.  But there are two other  -- arguably more important -- issues lurking in the background that have barely received mention:  (1) whether the claim is barred by the doctrine of sovereign immunity and (2) whether the plaintiff can claim an impairment of its rights as a riparian property owner under state law. 

This case involves the unusual situation of one governmental entity, a state agency, suing another government, the United States, for “just compensation” under the …

Sept. 24, 2012 by Aimee Simpson
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Today, CPR releases a new white paper examining criminal enforcement of water pollution laws in Maryland.  In Going Too Easy? Maryland’s Criminal Enforcement of Water Pollution Laws Protecting the Chesapeake Bay, CPR President Rena Steinzor and I analyze a number of key questions concerning the critical, deterrence-based enforcement mechanism of criminal prosecution and its role in the Chesapeake Bay restoration efforts:

  • What have water pollution criminal enforcement efforts in Maryland looked like for the past 10 to 20 years?
  • What institutional challenges did criminal enforcement of water pollution laws in Maryland face?
  • What improvements could regulators, legislators, and practitioners make to better utilize this critical accountability tool?

In answering these questions, we reviewed publicly available data on criminal enforcement cases at both the state and federal level involving water pollution in Maryland, interviewed a number of past and present environmental prosecutors, and reviewed the existing policies …

Sept. 20, 2012 by Ben Somberg
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A host of concerned groups and individuals wrote to Secretary of Agriculture Tom Vilsack today urging him to withdraw proposed changes to poultry inspection rules until food safety and worker safety concerns are addressed. The letter was signed by a range of food safety and worker safety groups and individual signers, including CPR Member Scholars Martha McCluskey, Thomas McGarity, Sidney Shapiro, and Rena Steinzor.

The letter explains the food safety and worker safety issues at stake, and takes USDA to task for its rushed approach:

The Food Safety and Inspection Service (FSIS) developed the proposal with limited public input. The agency did not adequately consult with its inspection advisory committee, nor did the agency hold public meetings to solicit the views of the public. Previous agency proposals that sought to substantially change parts of the federal inspection program have been debated and discussed in public forums so …

Sept. 19, 2012 by Daniel Farber
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Cross-posted from Legal Planet.

Obesity is an environmental issue because the food system (from farm to table) uses a lot of energy and produces significant water pollution. More food equals a bigger environmental footprint. Sweetened soft drinks are a good example: they use corn sweetener, and corn production has a large footprint because so much fertilizer is required. There is a growing epidemic of obesity and of childhood obesity in particular.

The New Scientist has a very thoughtful review of the evidence regarding the connection between sweetened soft drinks and obesity. The evidence is mixed, but favors the existence of a link — especially if you exclude studies financed by the food industry or by researchers with other close ties to the industry. So there’s some reason to think that New York’s recent ban on supersized soft drinks may reduce obesity. That would be good for …

Sept. 18, 2012 by Rebecca Bratspies
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a(broad) perspective

Today’s post is the last in a series on a recent CPR white paper, Reclaiming Global Environmental Leadership: Why the United States Should Ratify Ten Pending Environmental Treaties.  Each month, this series will discuss one of these treaties.  Previous posts are here.

United Nations Convention on the Law of the Sea (UNCLOS) and Agreement Relating to the Implementation of Part XI of the Convention Adopted and Opened for Signature on December 10, 1982. Agreement on Part XI Adopted on July 28, 1994.

Entered into Force on November 16, 1994 (UNCLOS) and July 28, 1996 (Part XI) Number of Parties: 162 (UNCLOS) and 141 (Part XI)

Signed by the United States on July 29, 1994. Sent to the Senate on October 7, 1994. Reported favorably by the Senate Foreign Relations Committee on February 25, 2004, and October 31, 2007

The United Nations Convention on …

Sept. 17, 2012 by Robert Verchick
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I had been wondering what ordinary people in India think about climate change. So last week on my ride home from the office, I asked my auto-rickshaw driver. He was a talkative guy, bearded, with black spectacles and a navy blue turban. He had been keen on identifying for me the many troubles a man like him endures on the subcontinent. “Too many people!” he shouted, his voice competing with the cab’s rattling frame and the bleats of oncoming horns. “Too much traffic!”

We swung around a landscaped rotary. I gripped my seat. A copse of date palms swerved by, and then a billboard: “Enrich Delhi’s Green Legacy.” I took the bait. “So what do think about global warming?” I shouted.

We slowed to a stop behind a row of cars and two-wheelers waiting at the light. He cut the motor. A small boy pranced …

Sept. 15, 2012 by Ben Somberg
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The Administration has just missed another deadline on issuing the final revised “boiler MACT” rule. The revised version of the rule will provide less pollution reduction than the original version, but is still expected to prevent thousands of deaths each year.

The EPA had pledged for many months that the rule would be finalized in April. It later said the rule would be finalized in the “spring.” On May 17, the agency sent the rule to the White House’s Office of Information and Regulatory Affairs (OIRA).

Executive Order 12,866 says OIRA has 90 days to review a rule, with a possible 30 day extension. OIRA’s website doesn’t list the two related Boiler MACT rules as having an “extended” review, but I’ll give them the benefit of the doubt. Friday, however, was 120 days after May 17, and the rules remain in OIRA …

CPR HOMEPAGE
More on CPR's Work & Scholars.
Sept. 28, 2012

<i>Kiobel</i> Returns!

Sept. 27, 2012

New Paper: How Chemicals Manufacturers Seek to Co-opt Their Regulators

Sept. 27, 2012

Fifth Circuit's Reversal on Katrina Litigation Leaves Flood Victims Gasping for Air

Sept. 25, 2012

The Muddy <i>Arkansas Game and Fish Commission</i> Case

Sept. 24, 2012

New CPR Report: Maryland and Federal Authorities Should Prosecute Water Polluters More Frequently

Sept. 20, 2012

Food Safety and Worker Safety Advocates Urge Vilsack to Withdraw Poultry Inspection Rule

Sept. 19, 2012

Supersized Drinks, Social Welfare, and Liberty