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Sept. 17, 2013 by Anne Havemann

Federal Court Upholds Bay TMDL, Freeing EPA and the States to Focus on Enforcement

In a much-anticipated opinion, a district court judge on Friday upheld the Bay TMDL, or pollution diet, against a challenge brought by the American Farm Bureau. The decision affirms that EPA’s Chesapeake Bay efforts have been squarely within its authority under the Clean Water Act (CWA), not to mention the various consent decrees, memoranda of understanding (MOU), and a presidential executive order.

The Chesapeake Bay Total Maximum Daily Load (TMDL) is a cap on the total amount of nitrogen, phosphorus, and sediment that can enter the Bay from the District of Columbia and the six Bay Watershed states: Delaware, Maryland, New York, Pennsylvania, Virginia, and West Virginia. The plan is the largest and most complex of all such pollutant limits to date, and jurisdictions across the country are paying close attention to it because they consider it a possible model for efforts to clean up their own polluted watersheds.

The verdict provides welcome certainty as municipalities and counties carry out the complex task of developing their own plans for meeting reduction goals. And, even more importantly, it allows EPA and the states to direct their attention to the pressing need to enforce the requirements of the TMDL.

The plaintiffs …

Sept. 13, 2013 by Erin Kesler
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Earlier this week, Roll Call published an op-ed by CPR Scholars Thomas O. McGarity and Wendy Wagner entitled, "Toxics Control Bill Will Handcuff EPA."

The piece concludes:

In our decades of research and writing on tort law and environmental regulation, we have never seen a pre-emption provision that intrudes more deeply into the civil litigation system at the state level than the one in this bill. If victims of toxic chemical exposure attempt to recover damages at the state level, their cases would have to be dismissed if the EPA had concluded — rightly or wrongly — that a chemical was safe.

For example, Hurricane Katrina victims who were housed in formaldehyde-contaminated Federal Emergency Management Agency trailers successfully sued the trailer manufacturers for damages. Under this bill, if the EPA found that formaldehyde passed its safety test, those families would be denied even their day in court.

Reform of …

Sept. 12, 2013 by Rena Steinzor
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Late last month, the Department of Energy proposed long overdue energy efficiency standards for commercial refrigeration units and published them for public comment yesterday. The rules, which had been held up at OMB’s Office of Information and Regulatory Affairs (OIRA) for almost two years will resultin savings of over $28 billion for businesses over the next 30 years and reductions in carbon emissions of 350 million tons over the same period. As we’ve discussed numerous times, rules are required by executive order to be reviewed by OIRA for no longer than 120 days. And OIRA routinely hangs onto them for months and frequently years. Recently, a rule to green federal office building just hit the two-year mark at OIRA.

So what’s happened in the past two years to slow down the progress of these two rules along with the other energy efficiency standards …

Sept. 9, 2013 by Alice Kaswan
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I agree with David Owen’s recent blog post that David Adelman’s article, The Collective Origins of Toxic Air Pollution: Implications for Greenhouse Gas Trading and Toxic Hotspots, makes significant contributions to our awareness of the sources of toxic pollution and our collective responsibility for reducing emissions.  He focuses on the distributional implications of GHG trading for associated co-pollutants, addressing two important environmental justice issues: the extent to which its impacts on industrial emissions could lead to changes in relative levels of toxic emissions, and the extent to which a GHG trading program could exacerbate racial disparities. He focuses on the degree to which a trading program would cause industrial hotspots or racial disparities, and his analysis shows that a GHG trading program for industrial sources would, in most instances, not play a substantial role in causing either of these consequences, largely because mobile and nonpoint …

Sept. 9, 2013 by Dave Owen
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For years, environmental activists have worried that emissions trading systems will create “hot spots.”  The fear, in a nutshell, is that even if the trading system succeeds in reducing overall levels of pollutants, pollution levels in areas with lots of emissions purchasers will rise.  It seems quite plausible to anticipate that the areas seeing increases will contain concentrations of older industrial facilities, and it seems equally plausible, based on years of environmental justice studies, to anticipate that those older facilities are more likely to be located in minority communities.  Trading systems therefore seem to threaten environmental justice.

Those fears played a central role in recent litigation over AB 32, California’s landmark climate change law.  Environmental justice groups challenged the law, arguing that its trading system would concentrate greenhouse gas emissions in lower-income minority communities.  While most GHG emissions are not toxic, and hot spots of GHG …

Sept. 9, 2013 by Erin Kesler
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Center for Progressive Reform Member Scholar and University of Texas School of Law professor David Adelman has written an article for the Indiana Law Journal entitled,"The Collective Origins of Toxic Air Pollution: Implications for Greenhouse Gas Trading and Toxic Hotspots." According to the abstract: 

This Article presents the first synthesis of geospatial data on toxic air pollution in the United States. Contrary to conventional views, the data show that vehicles and small stationary sources emit a majority of the air toxics nationally. Industrial sources, by contrast, rarely account for more than ten percent of cumulative cancer risks from all outdoor sources of air toxics. This pattern spans multiple spatial scales, ranging from census tracts to the nation as a whole. However, it is most pronounced in metropolitan areas, which have the lowest air quality and are home to eighty percent of the U.S. population.

 

The …

Sept. 4, 2013 by Rena Steinzor
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We’ve often written in this space about the Obama Administration’s very bad idea to take federal inspectors of the line at poultry processing plants, leaving the discovery of blood, guts, and feathers on the carcasses to overworked and underpaid line workers forced to process as many as 70 birds per minute at the average plant. The U.S. Department of Agriculture (USDA) is the architect of this proposal to “modernize” the food safety system without requiring a single additional test to make sure the birds are not infested with salmonella, campylobacter, and other bad bugs. Confirming the rule’s primary role as a windfall for the poultry industry, USDA’s initial cost-benefit analysis indicated that it would save companies like Holly Farm, Tyson’s, and Perdue $250 million annually. That windfall is attributable to the fact that under the proposal, the line speed will at …

Sept. 3, 2013 by Dave Owen
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Last week,  the Court of Appeals of Texas, Fourth District handed down Bragg v. Edwards Aquifer Authority, a decision that anyone interested in takings or water law ought to read (the Lexis cite is 2013 Tex. App. LEXIS 10838).  The Braggs had brought a takings claim alleging that the Edwards Aquifer Authority’s regulatory restrictions on the Braggs’ groundwater use amounted to a regulatory taking.  The appellate court agreed and remanded for an assessment of damages.  But I suspect—and hope—the case will first be appealed to the Texas Supreme Court.  It is a deeply flawed and harmful decision with mistakes that additional appellate review hopefully will fix.

Understanding those problems requires a little bit of factual context.  The Edwards Aquifer is a large and highly productive aquifer in central Texas.  It provides an important source of water for municipal and agricultural users, and its discharges …

CPR HOMEPAGE
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