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June 28, 2021 by Alina Gonzalez

Louisiana Environmental Justice Leader Wins Prestigious Environmental Prize

This month, environmental justice advocate Sharon Lavigne won the world's largest prize for environmental advocacy for blocking a chemical giant from building a roughly $1.3 billion plastic manufacturing plant in St. James Parish, Louisiana, a majority-Black community. Funded by the late Richard and Rhoda Goldman, the annual Goldman Environmental Prize is awarded to six people around the world who protect and enhance the environment in their communities

At the outset, Wanhua Chemical, the company behind the proposed facility, seemed likely to prevail. Wanhua is the world's largest producer of methylene diphenyl diisocyanate (MDI), showing its dominance in the global market.

But Lavigne did not falter. Through courage and persuasion, she defeated the petrochemical titan, which wielded power over local and state governments to the detriment of community members. For far too long, the petrochemical industry has targeted low-income communities and communities of color, believing it can get away with building facilities that dump toxic pollutants in the air and water. Community members pay the price of this pollution through serious health problems like cancer and asthma, while polluters enjoy massive profits and treat the occasional fine or lawsuit settlement as just another cost of doing business.

Instead of retreating …

June 25, 2021 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

Even most lawyers, let alone the rest of the population, are a bit fuzzy on how the regulatory system works. As the Biden administration is gearing up to start a slew of regulatory proceedings, here's what you need to know about the process.

Issuing Regulations

Q: Where do agencies like EPA get the power to create regulations?

A: EPA and other agencies are created by Congress. They also get the power to issue regulations from laws passed by Congress. For instance, the Clean Water Act tells EPA to issue regulations based on the "best available technology" for controlling the discharge of toxic water pollutants.

Q: Who decides whether an agency should start the process to issue a new regulation?

A: Some statutes set deadlines and require agencies to act. In those situations, a court can intervene …

June 16, 2021 by Robin Kundis Craig
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This is the first of of a two-part post. Part II is available here.

Last week, the U.S. Environmental Protection Agency (EPA) and U.S. Army Corps of Engineers announced that the regulations defining “waters of the United States” under the Federal Water Pollution Control Act (better known as the Clean Water Act) are once again going to change.

The importance of that announcement is best demonstrated through a quick recap of the chaos that has dominated this element of Clean Water Act jurisdiction. In the 1980s, the EPA and Army Corps finally agreed on a regulatory definition of “waters of the United States,” a phrase that Congress had used in its 1972 overhaul of the Federal Water Pollution Control Act to define “navigable waters.” The phrase is also one of the key jurisdictional terms defining the waters to which the restructured law applies.

“Waters of …

June 16, 2021 by Robin Kundis Craig
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This is the second of of a two-part post. Part I is available here.

In the first part of this post, I briefly touched on the chaotic history of the EPA and Army Corps' definition and regulation of "waters of the United States" under the Clean Water Act. I also pointed out that this definition and its varying interpretations across courts and administrations can have significant impacts on water pollution prevention and the protection of our nation's waterways. With the Biden administration tackling a redo of the "waters of the United States" rule, court challenges are sure to follow. In this post, I'll explore three approaches to the rule that might help it survive judicial review.

  1. Openly Acknowledge that Section 404 of the Clean Water Has Hijacked the “Waters of the United States” Discussion and Provide a Corrective

    The Clean Water Act, for better or for worse …

June 10, 2021 by James Goodwin
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Political Interference from White House Regulatory Office May Have Played a Role

The Labor Department’s emergency COVID standard, released today, is too limited and weak to effectively protect all workers from the ongoing pandemic. The workers left at greatest risk are people of color and the working poor.

Workers justifiably expected an enforceable general industry standard to protect them from COVID-19, and the Center for Progressive Reform (CPR) has been calling for such a standard since June 2020. But what emerged after more than six weeks of closed-door White House review was a largely unenforceable voluntary guidance document, with only health care workers receiving the benefit of an enforceable standard.

The interference with the COVID standard by the White House regulatory office, the Office of Information and Regulatory Affairs (OIRA), sends the wrong signal about the Biden administration's commitment to improving the regulatory review process, which …

June 9, 2021 by James Goodwin
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In addition to cleaning up our environment, the U.S. Environmental Protection Agency (EPA) must also clean up the mess the Trump administration left behind.

The Biden EPA recently took an important step in this direction by finalizing its plan to rescind a Trump-era rule that would drastically overhaul how it analyzes the rules it develops to implement the Clean Air Act. If implemented, Trump's "benefits-busting" rule would have sabotaged the effective and timely implementation of this popular and essential law, which protects the public from dangerous pollution that worsens asthma and causes other diseases. The rescission is slated to take effect next week.

On June 9, the EPA held a public hearing to gather feedback on rescinding the rule, which CPR has been tracking for several years. CPR Member Scholars Rebecca Bratspies and Amy Sinden joined me in testifying in support.

A New and Better Approach …

June 8, 2021 by Clarissa Libertelli
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Today is World Oceans Day, a time to consider how ocean policy connects to human and environmental health. This year’s theme of “Life and Livelihoods” comes as our federal government is finally making energy jobs and climate justice a priority. It is also an opportunity to reflect on one of the most devastating events to impact Gulf Coast waters and those who depend on them — the BP/Deepwater Horizon oil spill of 2010. Eleven years on, workers continue to raise the alarm over the spill’s long-term health impacts, fighting against a backdrop of weak safety regulations.

Eleven workers were killed and 17 injured in the oil rig explosion that caused the largest marine oil spill in history, flooding over 200 million gallons of oil into the Louisiana coast for more than 87 days. The disaster and subsequent media frenzy rallied politicians and the public against …

May 24, 2021 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

Lead can cause neurological damage to young children and developing fetuses. The only really safe level is zero. Because poor children are the most likely to be exposed to this hazard, this is also a major environmental justice issue.

The Trump EPA took the position that it could set a hazard level higher than zero because of the cost of reaching a lower threshold. In a split decision, the Ninth Circuit reversed. The statutory issues are complicated, and a dissent raised some reasonable arguments. Ultimately, though, it's hard to believe Congress wanted EPA to misrepresent that a certain level of lead is safe for children when it really isn't.

The case involved several types of regulations, but the most important dealt with levels of lead dust. The main way children are exposed to lead is by …

May 21, 2021 by Daniel Farber
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This post was originally published on Legal Planet. Republished with permission.

In its closing days, the Trump administration issued a rule designed to tilt EPA's cost-benefit analysis of air pollution regulations in favor of industry. Recently, the agency rescinded the rule. The rescission was no surprise, given that the criticisms of the Trump rule by economists as well as environmentalists. EPA's explanation for the rescission was illuminating, however. It sheds some important light on how the agency views the role of cost-benefit analysis in its decisions.

The Trump rule contained an industry wish list of provisions, all of them designed to make regulation more difficult. At the time, the provision that got the most attention related to co-benefits. Co-benefits are the beneficial side effects of a regulation. For example, a regulation designed to reduce mercury emissions from power plants also cut emissions of fine particulates, thereby saving …

May 13, 2021 by Katlyn Schmitt
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This op-ed was originally published in the Baltimore Sun and was co-authored with Russ Stevenson of the Chesapeake Legal Alliance.

Dirty, polluted stormwater that runs off of industrial sites when it rains is a major cause of pollution to Maryland’s streams and rivers, and ultimately to the Chesapeake Bay. Maryland is home to thousands of such industrial sites, all of which are required by law to obtain a stormwater discharge permit from the Maryland Department of the Environment (MDE) to prevent pollution and protect public and environmental health.

Unfortunately, many of these sites do not have a permit. For example, our research in one small area of Anne Arundel County found that only four out of 12 industrial sites possessed a current permit. Of the industrial sites that hold a permit, many are not in compliance with the permit requirements. Between 2017 and 2020, MDE conducted …

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