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Sept. 21, 2020 by Rebecca Bratspies

Environmental Justice Is Not Un-American

Recently, U.S. Environmental Protection Agency (EPA) Administrator Andrew Wheeler spoke to commemorate the 50th anniversary of the EPA's founding. He used the opportunity to reiterate the agency's commitment to its “straightforward” mission to “protect human health and the environment.” He also emphasized that the agency’s mission meant “ensuring that all Americans – regardless of their zip code – have clean air to breathe, clean water to drink, and clean land to live, work, and play upon.”

Why did Wheeler refer to zip code? Because decades of research have documented that pollution, and its adverse health effects, are not spread equally across the country. Instead, polluting industry tends to be concentrated in certain zip codes that, due to a history of racist redlining and housing discrimination, are predominantly the home of Black and Brown Americans.

The groundbreaking 1987 study Toxic Waste and Race in the United States first documented that race is the most significant predictor of living near a toxic facility. Over the ensuing three decades, evidence for this connection between America’s racial geography and pollution has grown even stronger. Indeed, EPA’s own researchers recently documented that race, rather than poverty is the strongest predictor for pollution exposure …

Sept. 17, 2020 by Joel Mintz, Victor Flatt
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This op-ed was originally published by The Revelator. Reprinted under a Creative Commons license (CC BY-NC-ND 3.0).

The COVID-19 pandemic has ushered in a wave of worrisome and needless regulatory relaxations that have increased pollution across the United States. Recent reporting by the Associated Press and other outlets has documented more than 3,000 pandemic-based requests from polluters to state agencies and the U.S. Environmental Protection Agency for waivers of environmental requirements. Numerous state governments, with the tacit encouragement of the EPA, went along with many of those requests. All too often, those waivers — requested, ostensibly, to protect American workers from exposure to the coronavirus — were granted with little or no review, notwithstanding the risks the resulting emissions posed to public health and the environment.

EPA invited this wave of waivers back in March, announcing it would relax its enforcement upon request, under cover of …

Sept. 15, 2020 by Joel Mintz
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This is the second post of a two-part set. Click to read Part I.

As I noted in a previous post, the pending case of United States v. DTE Energy, Inc. tacitly raises issues concerning the constitutionality of both Supplemental Environmental Projects (SEPs) and the citizen suit provisions of environmental laws. This second post considers another constitutional issue that may emerge in the DTE Energy litigation: whether SEP agreements – and citizen suits more generally – interfere with a “core executive function” of the president and executive branch and longstanding constitutional notions of separation of powers. To resolve that question soundly, one must look to the text of the Constitution itself, the Federalist Papers, and the relevant body of law that the lower federal courts have already developed.

Notably, neither the Constitution nor the Federalist Papers provide a clear indication of what constitutes a “core executive function” or the …

Sept. 14, 2020 by Joel Mintz
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This is the first post of a two-part set. Click to read Part II.

Over the past few years, the U.S. Department of Justice (DOJ) has shown increasing hostility to the use of Supplemental Environmental Projects (SEPs) in settlements of federal environmental enforcement cases. Aside from a series of ever-tightening SEP policies, however, DOJ has never asserted in court that these projects are unconstitutional. At least not yet.

In a case pending before the U.S. District Court for the Eastern District of Michigan, United States v. DTE Energy, Inc., the constitutionality of both SEPs and citizen suits in general may soon be at issue. The case began as a typical New Source Review matter in the Obama administration. The U.S. Environmental Protection Agency (EPA) asked the Justice Department to sue DTE on the grounds that equipment updates to some of the company's electric generating …

Aug. 4, 2020 by James Goodwin
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Yesterday, I joined a group of CPR Member Scholars and staff in submitting comments on the Environmental Protection Agency's (EPA) "benefits-busting" proposal, which would drastically overhaul how the agency performs cost-benefit analysis on its biggest Clean Air Act rules. As we explain in our comments, the action is a thinly veiled effort to rig the results of those analyses – more so than they already are – to make it harder to issue appropriately strong safeguards, thereby sabotaging the effective and timely implementation of the Clean Air Act.

Our comments lay out in detail several shortcomings of the benefits-busting proposal. To begin, the EPA lacks legal authority to issue a binding rule of this kind. But even if the agency did have such authority, the proposal would do little, if anything, to improve its regulatory decision-making given that cost-benefit analysis is either superfluous to or even prohibited by the …

July 29, 2020 by Joel Mintz
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In an article headlined, "Dozens of facilities skipping out on EPA pollution monitoring have prior offenses," The Hill reports the following today:

More than 50 facilities across the country that have faced enforcement actions for alleged Clean Water Act violations are among those taking advantage of an Environmental Protection Agency (EPA) policy that lets companies forgo pollution monitoring during the pandemic, an analysis by The Hill found. The temporary EPA policy, announced in March, says industrial, municipal and other facilities do not have to report pollution discharges if they can demonstrate their ability to do so has been limited by the coronavirus. The Hill first reported that 352 facilities have skipped water pollution monitoring requirements under the policy, which applies to air pollution as well. Of those facilities, 55 have faced formal enforcement actions in the past five years from either the EPA or state …

July 22, 2020 by James Goodwin
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Donald Trump is no stranger to leaving things worse off than he found them, and this is precisely what his administration now aims to do with the Environmental Protection Agency (EPA), not just one of the most successful government institutions in the history of the United States, but indeed the world. Having worked quickly, if not sloppily, to dismantle every vestige of the Obama administration's efforts to promote cleaner air and water, the Trump EPA is now heading down a path of self-destruction. The agency's proposed "benefits-busting" rule, released early last month, is a big part of this campaign.

The benefits-busting rule is nominally about overhauling how the EPA does cost-benefit analysis for its Clean Air Act rules, but make no mistake: This action is really about putting that foundational law into concrete boots and shoving it into the nearest body of water. Future efforts to fulfill …

June 18, 2020 by Daniel Farber
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Originally published on Legal Planet. Reprinted with permission.

On June 16, the D.C. Circuit Court of Appeals decided two cases that add to the legal difficulties the Trump EPA will face in court. The difficulties relate to two proposed EPA rules that attempt to hamstring future efforts to impose tighter restrictions on pollution. Both EPA rules rely on vague, general grants of rulemaking authority from Congress. That just became more tenuous.

One of the EPA proposals is the so-called "science transparency rule," which is perversely designed to limit EPA's future ability to utilize well-regarded scientific studies. The other proposal will reduce the agency's flexibility in conducting cost-benefit analysis of future regulations.

In attempting to find legal authority for these rules, EPA has looked to general grants of rulemaking authority. One such law is the Federal Housekeeping Act. That law (which may not actually apply to …

June 11, 2020 by Katlyn Schmitt, William Andreen
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We are five years out from the final 2025 deadline for the Chesapeake Bay cleanup agreement, known as the Bay Total Maximum Daily Load (TMDL). With the approval of the U.S. Environmental Protection Agency (EPA), each of the Bay states has finalized the three required phases of their Watershed Implementation Plans (WIPs). This month, those states have released their draft 2020-2021 milestones, which, when final, will set out the key short-term goals states will work toward, stepping up their restoration work so that they can stay on track to meet their final 2025 pollution reduction goals.

Even though these five-year milestones play an important role in the accountability framework for the Bay TMDL, the WIPs serve as the main vehicle for comprehensively outlining how each state will achieve their commitments. Even the EPA has stated that the WIPs are the "cornerstone" of the Bay TMDL.

Despite …

June 9, 2020 by Darya Minovi
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June 1 marked the start of hurricane season for the Atlantic Basin. While not welcome, tropical storms, strong winds, and storm surges are an inevitable fact of life for many residents of the Eastern Seaboard and the Gulf Coast. As a new paper from the Center for Progressive Reform explains, with those storms can come preventable toxic flooding with public health consequences that are difficult to predict or control.

In Ernest Hemingway’s 1970 novel, Islands in the Stream, he wrote of his protagonist, Thomas Hudson, “He knew how to plot storms and the precautions that should be taken against them. He knew too what it was to live through a hurricane with the other people of the island and the bond that the hurricane made between all people who had been through it.”

Only Hemingway could romanticize hurricanes. And things have only gotten worse. Last month …

CPR HOMEPAGE
More on CPR's Work & Scholars.
Sept. 21, 2020

Environmental Justice Is Not Un-American

Sept. 17, 2020

Pandemic Spawns Dangerous Relaxation of Environmental Regulations

Sept. 15, 2020

Citizen Suits, Environmental Settlements, and the Constitution: Part II

Sept. 14, 2020

Citizen Suits, Environmental Settlements, and the Constitution: Part I

Aug. 4, 2020

CPR Comments Deliver Scathing Critique of EPA 'Benefits-Busting' Rule

July 29, 2020

Who Could Possibly Have Guessed?

July 22, 2020

EPA's 'Benefit-Busting' Proposal Would Add to Trump's Anti-Safeguard Legacy