en-us 30 140 20 http://www.progressivereform.org http://www.progressivereform.org/imgs/printPageLogo.gif http://www.progressivereform.org/CPRBlog.cfm?idBlog=D31F3C99-A7C8-9B0B-129B44636EF31F7F http://www.progressivereform.org/CPRBlog.cfm?idBlog=D31F3C99-A7C8-9B0B-129B44636EF31F7F Thu, 2 Sep 2010 11:45:05 EST The Capital of Annapolis reported recently on the alarmingly low penalties assessed by the Maryland Department of Environment for massive spills of raw sewage - containing a mix of untreated human, residential, agricultural, and industrial wastewater - into the state's waters. This article supports one of the key findings from CPR's report, Failing the Bay: Clean Water Act Enforcement in Maryland Falling Short, released earlier this year. These low penalties, sometimes "about the same as a speeding ticket," do not and cannot serve as the basis of an effective, deterrence-based enforcement program - precisely what is needed to compel compliance with the Clean Water Act and state water quality laws. The article reports on raw sewage spills from publicly operated sewer management systems, using information obtained through a Maryland Public Information Act request. In 2009, the sewer system operated by the Anne Arundel County government spilled nearly 200,000 gallons of raw sewage into local streams, creeks, and rivers, which eventually flow into the Chesapeake Bay. For this, the county paid only $3,950 in fines, or slightly less than 2 cents per gallon of sewage. Currently, the maximum penalty is $5,000 per day of discharge violation, but some of the larger county governments are under consent decrees that specify penalty maximums. For example, Anne Arundel's fees are $50 for 100 gallons or less of sewage and no more than $1,000 for more than 100,000 gallons. These sewage spill fines and other water-related fines are deposited in Maryland's Clean Water Fund. According to Maryland law, MDE is required to use the Fund for monitoring and protecting both surface waters and groundwater from pollution discharges, for sediment control, and for managing sewage sludge. MD Envt'l Code § 9-320. As the article reports, it's no secret that the Fund is used to fill in MDE's budget gaps or to stabilize the overall budget for the Water Management Administration (WMA) at MDE. Yee Huang http://www.progressivereform.org/CPRBlog.cfm?idBlog=D31F3C99-A7C8-9B0B-129B44636EF31F7F http://www.progressivereform.org/CPRBlog.cfm?idBlog=CD84F2F3-D48B-4A61-513F8624205315D2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CD84F2F3-D48B-4A61-513F8624205315D2 Wed, 1 Sep 2010 09:38:38 EST On July 9, 2010, following more than 10 years of interference and delay, the Food and Drug Administration's rule to prevent salmonella contamination in eggs finally went into effect. FDA officials have argued that this rule - which, among other things, requires farms to test eggs and facilities for salmonella, protect feed and water from contamination, and buy chicks and young hens from suppliers that monitor for salmonella - would have likely prevented the massive salmonella outbreak that has sickened 1,470 individuals and resulted in one of the largest food recalls in U.S. history, with more than half a billion eggs being pulled off stores' shelves. It's hard to know whether this is necessarily true or not, but if adequately enforced, the rule certainly would have driven very significant changes to the facilities we've learned about in the past weeks. Tragically, the salmonella outbreak stretches back to at least May, just a few months before the salmonella rule's effective date. What accounts for this policy "near miss"? By all accounts, this rule was recognized as a necessary step for closing a big gap in our food safety system - namely, ensuring the safety of eggs. So, why did it take more than 10 years - 10 years!! - for the rule to be developed and finalized? Unsurprisingly, it looks like the Office of Information and Regulatory Affairs (OIRA) - a bureau in the White House Office of Management and Budget that through Democratic and Republican administrations alike has assumed the role of squashing or diluting needed environmental, health, and safety regulations - played a role in delaying the FDA's rule, back in 2008. It appears that without OIRA's interference, the rule could have been in effect by at least the end of 2009 - well before the massive salmonella outbreak began. James Goodwin http://www.progressivereform.org/CPRBlog.cfm?idBlog=CD84F2F3-D48B-4A61-513F8624205315D2 http://www.progressivereform.org/CPRBlog.cfm?idBlog=CD88A03D-095D-ED0D-0C20D492615ECB4F http://www.progressivereform.org/CPRBlog.cfm?idBlog=CD88A03D-095D-ED0D-0C20D492615ECB4F Wed, 1 Sep 2010 09:42:33 EST According to the egg industry, the thousands of people sickened by eggs contaminated with Salmonella enteritidis have only themselves to blame. As USA Today reported: "Consumers that were sickened reportedly all ate eggs that were not properly or thoroughly cooked. Eggs need to be cooked so that the whites and yolks are firm (not runny) which should kill any bacteria," says Mitch Head, spokesperson for the United Egg Producers. "Some people may not think of an egg as you would ground beef, but they need to start," says Krista Eberle of the United Egg Producers' Egg Safety Center. "It may sound harsh and I don't mean it to sound that way. But all the responsibility cannot be placed on the farmer. Somewhere along the line consumers have to be responsible for what they put in their bodies." With more than 500 million eggs to date subject to recall for contamination, this effort to shift the focus to consumers' behavior deserves scrutiny. Implicit in this shift is an attempt to absolve producers - and the government agencies charged with overseeing these producers and ensuring the health of our food supply - of responsibility. But there are many good reasons for our government to ensure the safety and security of the food we eat. Indeed, Congress has assigned this task to protector agencies such as the Food and Drug Administration precisely because most Americans want to go to their local grocery stores and know that the food sold there will be fit for human consumption. Catherine O'Neill http://www.progressivereform.org/CPRBlog.cfm?idBlog=CD88A03D-095D-ED0D-0C20D492615ECB4F http://www.progressivereform.org/CPRBlog.cfm?idBlog=C84D8B44-A39D-0A32-8683A6D6818DD6E5 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C84D8B44-A39D-0A32-8683A6D6818DD6E5 Tue, 31 Aug 2010 09:20:01 EST Cross-posted from the Huffington Post. Eager to blame the state of the economy on the Administration, House Minority Leader John Boehner recently tried to argue that Administration's regulatory agenda is standing in the way of recovery. Sadly for Boehner, he tried to make that case shortly before the fifth anniversary of Hurricane Katrina, and while the smell of the BP oil spill still lingers in the Gulf. By any reasonable measure those two incidents are among the costliest and most devastating examples of the human and monetary costs of lax regulation. In a letter to President Barack Obama, Boehner criticized the Administration's plans to implement 191 rules with potential economic costs greater than $100 million, arguing that "uncertainty" in the business community about the fate of the regulations is "contributing significantly to the ongoing difficulty our economy is facing." Apparently, Boehner and other opponents of regulation are betting that we'll forget the cost of regulatory failure as they repeat their mantra that regulation costs a lot of money, and that it cannot be good for the economy. This claim is false on two counts. First, it ignores the reality that the costs associated with regulatory failure usually far outweigh the expense of effective regulation. Various federal agencies failed to protect the Gulf Coast region - first from the impact of Katrina, and then in the case of the BP Oil Spill. The Katrina failure cost billions of dollars, and more than 1,800 lives, to say nothing of the massive disruption to thousands of dislocated families, costs that cannot be measured. Sidney Shapiro http://www.progressivereform.org/CPRBlog.cfm?idBlog=C84D8B44-A39D-0A32-8683A6D6818DD6E5 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C9D4103C-90C6-33FF-9F954A8D02D6A368 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C9D4103C-90C6-33FF-9F954A8D02D6A368 Tue, 31 Aug 2010 16:26:29 EST CPR Member Scholar Douglas Kysar has an opinion piece in the Guardian making the case for Carbon Upsets. Upsets, you ask? That is: Rather than award credits based on development that moves us toward a cleaner but still very dirty future, why not award credits to legal and political actions that have more dramatic impact? For instance, rather than bribe fossil fuel companies to stop flaring natural gas, why not reward indigenous groups that entirely block new exploration activities? Rather than transfer money to logging operations for incremental replanting programs, why not award credits to forest-dwelling communities that successfully fight to stop logging altogether? Check it out. Ben Somberg http://www.progressivereform.org/CPRBlog.cfm?idBlog=C9D4103C-90C6-33FF-9F954A8D02D6A368 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C464C06A-0BFF-83E4-E80599DF3E786933 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C464C06A-0BFF-83E4-E80599DF3E786933 Mon, 30 Aug 2010 15:07:12 EST The below is testimony (PDF) given today by CPR President Rena Steinzor at the EPA's public hearing on coal ash regulation. The hearing, in Arlington, VA, is the first of seven; the public comment period has been extended to November 19. See CPR on Twitter for updates from the hearing. We are all familiar with the psychological studies that have become a cottage industry at American universities. Consider this one. A presumably dead cockroach is "medically sterilized" - and I honestly do not know what that means - and then dipped into a glass of juice in front of a group of people. The purpose: to gauge the test subjects' willingness to drink the juice after the cockroach is removed. To the researchers apparent surprise, the people - all victims of an irrational phenomenon known as "stigma effect" - would not drink the juice, although they were willing to take a sip if the cockroach was merely laid to rest peacefully beside the glass, as opposed to dunked inside it. As amazing, they refused to drink the dunker juice, even if it was placed in a freezer for one year or the cockroach was dipped in the juice very, very quickly. So, conclude the researchers, "while shunning may have evolved from an adaptive response to avoid contaminated food, it can be triggered in inappropriate circumstances." Now why on earth am I bringing up this bizarre experiment in the context of this perfectly staid hearing on a hyper-technical EPA rulemaking proposal, which covers - count 'em - 138 pages in the Federal Register, leaving many supposedly more relevant points to be addressed by witnesses today? I am telling you the cockroach story because it is at the root of the reasons why the OMB Office of Information and Regulatory Affairs (OIRA) mangled this rulemaking, constructing a fanciful but deadly cost-benefit analysis that predicts negative net benefits of as much as $239 billion if EPA regulates coal ash appropriately, as a special waste under subtitle C of the Resource Conservation and Recovery Act. Or, to put it more bluntly, electric utility executives who generate 136 million tons of coal ash annually will squander $239 billion of the nation's resources over the next 50 years because, suffering from the stigma effect, they will send millions of tons of the stuff to lined landfills rather than dumping it in road beds and mine shafts. Rena Steinzor http://www.progressivereform.org/CPRBlog.cfm?idBlog=C464C06A-0BFF-83E4-E80599DF3E786933 http://www.progressivereform.org/CPRBlog.cfm?idBlog=C313343D-CB4B-C01D-96A03DE6F3A3DEBE http://www.progressivereform.org/CPRBlog.cfm?idBlog=C313343D-CB4B-C01D-96A03DE6F3A3DEBE Mon, 30 Aug 2010 08:58:07 EST CPR Member Scholar Frank Ackerman had an op-ed in the Des Moines Register the other day, "Atrazine ban would not ruin the Corn Belt." The chemical in question is a weed-killer, and also a known endocrine disruptor. The Bush Administration's EPA determined that atrazine does not cause negative effects to human health. The Obama Administration's EPA is currently conducting a review of that assessment (stay tuned). Ackerman responds to arguments that banning atrazine would cause huge economic harm, writing: How great is the economic benefit of using atrazine? Several studies have estimated that atrazine boosts average corn yields by 6 percent or less. A database of field trials, maintained by consultant Richard Fawcett and relied on by atrazine supporters, shows that it increases corn yields by an average of 3 to 4 percent. The most comprehensive national study, by the U.S. Department of Agriculture, estimated that banning atrazine would lower corn yields by 1.2 percent. In fact, atrazine might have no effect at all on corn yields. Two corn-growing countries, Germany and Italy, both banned atrazine in 1991. I compared the trends in corn yields per acre, and in corn acreage, in the United States, Germany and Italy for 1981-2001. Both Germany and Italy did as well or better in corn production after banning atrazine as they did in the 10 years before the ban. And both countries did as well or better than the United States after banning atrazine. Ackerman's full article on the subject is "The Economics of Atrazine." Ben Somberg http://www.progressivereform.org/CPRBlog.cfm?idBlog=C313343D-CB4B-C01D-96A03DE6F3A3DEBE http://www.progressivereform.org/CPRBlog.cfm?idBlog=B3A02DCD-C022-CEA3-D00825B4E949D013 http://www.progressivereform.org/CPRBlog.cfm?idBlog=B3A02DCD-C022-CEA3-D00825B4E949D013 Fri, 27 Aug 2010 08:58:17 EST Cross-posted from The Pump Handle. The Iowa-based company Wright County Egg is recalling 380 million eggs, which were sold to distributors and wholesalers in 22 states and Mexico, due to concerns about salmonella contamination. The eggs have been sold under several different brand names, so if you've got eggs in your fridge you can check FDA's page for info. Salmonella-infected eggs traceable to this producer may have caused as many as 1,200 cases of intestinal illness in at least 10 states over the past several weeks. A second producer, Hillandale Farms, has also issued a recall 170 million eggs that have been shipped to 14 states. Before getting into what's wrong with our food-safety system, I want to note the recall might not have happened at all if it weren't for surveillance and investigation activities at the state and national levels. Officials identified the problem because CDC's PulseNet network (whose participant labs perform molecular subtyping of foodborne disease-causing bacteria) identified a much larger than usual number of Salmonella Enteritidis isolates in the samples it received. Ordinarily, CDC gets an average of 50 reports of SE illnesses weekly, but it started receiving approximately 200 reports per week during late June and early July. Public health officials in California, Colorado, and Minnesota conducted epidemiologic investigations and found that shell eggs were the likely source of infection. FDA, CDC, and state partners then conducted traceback investigations and found that many of the restaurants and events where multiple people became ill with SE got their eggs from Wright County Egg. Liz Borkowski http://www.progressivereform.org/CPRBlog.cfm?idBlog=B3A02DCD-C022-CEA3-D00825B4E949D013 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AC85216E-FC6B-529B-997DCE5215597D90 http://www.progressivereform.org/CPRBlog.cfm?idBlog=AC85216E-FC6B-529B-997DCE5215597D90 Thu, 26 Aug 2010 09:09:51 EST The past year has certainly had disappointments for people who care about protecting the environment. A major international conference on global climate change yielded no sweeping agreement to reduce greenhouse gases. The United States Senate declined to pass comprehensive climate change legislation, and residents of Louisiana and other states bordering the Gulf of Mexico suffered the ill effects of a long-running, disastrous offshore oil spill. One recent - far more sanguine - development development should not be overlooked, however: the decision of a special district in Florida, the South Florida Water Management District, to purchase a large tract of land for use in the treatment and storage of surface water. The deal was approved by the District earlier this month and cleared one of its final legal challenges on Monday. The "sugar deal," as it is known to many Floridians, represents a significant victory for the environmentalists and scientists who seek to protect the fragile, endangered Everglades. Under the plan, the Water Management District will pay $197 million for 26,800 acres of land owned by U.S. Sugar Corporation, a major sugar grower in the Everglades Agricultural Area (EAA) situated south of Lake Okeechobee and north of the "river of grass." The District was also given an option to purchase the remainder of U.S. Sugar's EAA property - more than 100,000 additional acres--if and when the District's property tax revenues increase. To understand the significance of this major land purchase, one must consider the history of its evolution. In the 1980s and 1990s, when scientists drew up plans to restore the Everglades, they noted the critical importance of converting some of the farmland in the EAA to use as a water treatment and storage area. The problem, as those scientists saw it, was that the water flowing into the Everglades from EAA agricultural operations contained such excessively high levels of nutrient contaminants that it had to be captured and treated. Moreover, under the prevailing arrangement, there was frequently a need to divert oversupplies of water into nearby rivers and the Everglades itself. This situation did (and continues to do) considerable damage to the Calusa and St. Lucie estuaries and to the natural systems of the Everglades themselves. Joel Mintz http://www.progressivereform.org/CPRBlog.cfm?idBlog=AC85216E-FC6B-529B-997DCE5215597D90 http://www.progressivereform.org/CPRBlog.cfm?idBlog=9D6B5241-C070-9100-186A82E7B6FA529D http://www.progressivereform.org/CPRBlog.cfm?idBlog=9D6B5241-C070-9100-186A82E7B6FA529D Mon, 23 Aug 2010 10:00:02 EST a(broad) perspective No single substance is more necessary to humans than water. For people in developed countries, clean, potable water arrives with the simple turn of a faucet knob. For much of the world's population, however, getting access to clean water is much more complex, if not impossible, and not having clean water leads to a host of diseases and conflict and is intimately tied to poverty. In late July, the 192-member General Assembly of the United Nations adopted, without opposition (though not unanimously), a resolution on the human right to water. Specifically, the General Assembly declared that "the right to safe and clean drinking water and sanitation as a human right is essential for the full enjoyment of life and all human rights.". The resolution notes that approximately 884 million people lack access to safe drinking water and that more than 2.6 billion lack access to basic sanitation. As a result, approximately 1.5 million children under the age of 5 years old die and miss 443 million school days each year. The United States was one of 41 countries that abstained from voting. In doing so, U.S. deputy representative to the U.N Economic and Social Council John Sammis cited ongoing work of other U.N. bodies to increase access to water and asserted that the resolution "was not drafted in a transparent, inclusive manner" with no thought to the legal implications of establishing this right. Yee Huang http://www.progressivereform.org/CPRBlog.cfm?idBlog=9D6B5241-C070-9100-186A82E7B6FA529D http://www.progressivereform.org/CPRBlog.cfm?idBlog=86F47D8F-E742-26D0-C1F2B4FA5E728B2C http://www.progressivereform.org/CPRBlog.cfm?idBlog=86F47D8F-E742-26D0-C1F2B4FA5E728B2C Thu, 19 Aug 2010 09:30:43 EST Last week, the Washington University Journal of Law and Policy published New Directions in Environmental Law, a symposium issue featuring articles from six CPR Member Scholars. The articles explore how lessons learned from first generation environmental statutes should be applied to future legislation in order to accomplish the original goals of the environmental movement. Dan Tarlock, in Environmental Law: Then and Now, describes how the symposium was organized to analyze first generation environmental statutes to raise provocative questions about the future of environmental law. Tarlock concludes that environmental law in the United States "remains locked in the transition phase of protecting the earth from discrete threats to human and natural well-being." "The major themes running through this symposium are that we require a richer theory of the appropriate scale and mix of government participants (monitored by NGOs), management strategies that use information both to set protection targets and to allow flexible ways of reaching them, and ways of reducing the stream of chemicals that impair public health even as the question of what triggers adverse impacts on the human body becomes ever more complex." In his article Clean Air Act Dynamism and Disappointments: Lessons for Climate Legislation to Prompt Innovation and Discourage Inertia, Bill Buzbee calls for the continuation of the dynamic structure established in the Clean Air Act (CAA) in new pollution-regulating legislation. Buzbee compares the CAA's structure to the Waxman-Markey American Clean Energy and Security Act of 2009 and the Kerry-Boxer Clean Energy Jobs and American Power Act of 2009. He finds the proposed bills follow the CAA's burdensome regulatory requirements on EPA and create costly risks and delay in regulation of greenhouse gas emissions through their notice-and-comment regimes. Buzbee also finds, however, that the proposed bills omit some of the strategies that have proven remarkably effective in the CAA, namely, the Act's savings clauses and floor preemption strategies that preserve state and local governments' ability to impose more stringent pollution reductions than federal law. He concludes that "[l]egislators should hedge their regulatory bets" when crafting federal climate change legislation, "retaining substantial roles for the states." Shana Jones http://www.progressivereform.org/CPRBlog.cfm?idBlog=86F47D8F-E742-26D0-C1F2B4FA5E728B2C http://www.progressivereform.org/CPRBlog.cfm?idBlog=8034AEB0-AD7C-255C-7C6A248B9F8A6EEE http://www.progressivereform.org/CPRBlog.cfm?idBlog=8034AEB0-AD7C-255C-7C6A248B9F8A6EEE Tue, 17 Aug 2010 09:20:41 EST Cross-posted from Legal Planet. On Monday the White House Council on Environmental Quality issued a report on the NEPA analysis that preceded exploratory drilling at the ill-fated Macondo well in the Gulf of Mexico, together with recommendations for improving NEPA analysis in the future. According to CEQ, the Bureau of Ocean and Energy Management (successor to the disgraced Minerals Management Service) has already agreed to implement the recommendations. The report offers a detailed look at the chaotic and uncoordinated NEPA procedures that were apparently routine at the old MMS. The major outlines of the story were already well known: MMS did a cursory, over-optimistic oil spill analysis at the 5-year program and lease sale stages, then applied a categorical exemption to applications for exploration plans. Separately from that environmental analysis, BP prepared an oil spill response plan which considered the possibility of a much larger catastrophic spill, but assured regulators that the company would be able to quickly and effectively clean up such a spill. There was never a thorough, realistic, transparent analysis of the probability and potential impacts of a blowout. Holly Doremus http://www.progressivereform.org/CPRBlog.cfm?idBlog=8034AEB0-AD7C-255C-7C6A248B9F8A6EEE http://www.progressivereform.org/CPRBlog.cfm?idBlog=819EA91E-9A10-BC4C-45F502910A17E345 http://www.progressivereform.org/CPRBlog.cfm?idBlog=819EA91E-9A10-BC4C-45F502910A17E345 Wed, 18 Aug 2010 09:25:51 EST In June, the Food and Drug Administration issued Draft Guidance on the Judicious Use of Medically Important Antimicrobials in Food-Producing Animals. The FDA recognizes in the guidance that the "overall weight of evidence available... supports the conclusion that using medically important antimicrobial drugs for production or growth enhancing purposes... in food-producing animals is not in the interest of protecting and promoting the public health." The public health concern arises where bacteria in these animals develop resistance to the drugs and then are transmitted to food workers and consumers, who then introduce the drug-resistant bacteria into their communities. In a new book, Superbug: The Fatal Menace of MRSA, journalist Maryn McKenna details the emergence of one of the most common and increasingly prevalent drug-resistant bacteria, methicillin-resistant Staphylococcus aureus (MRSA). While MRSA was once primarily found in hospitals, McKenna traces the emergence of community-based strains of the bug that evolved independently to also cause serious infections in people with no connection to the hospital or other traditional environments with MRSA. Her book also examines the ability of MRSA to use domestic pets as hosts and then infect their human owners, as well as the impact of antibiotic use in the food production sector (there's a great book interview from Fresh Air). MRSA is part of the Staphylococcus genus, which includes a variety of ancient bacteria that are, as McKenna says, "probably one of mankind's oldest evolutionary companions." Staphylococcus aureus, or S. aureus, is mostly benign and at any given moment is present in nearly one-third of the population. Humans and our bacteria live in an intimate balance, but when that balance with S. aureus is toppled, the bacteria may turn extremely virulent and even deadly. S. aureus can attack the human body with rapid and devastating consequences, ranging from simple skin abscesses to muscle and bone infections, toxic shock, and pneumonia. Yee Huang http://www.progressivereform.org/CPRBlog.cfm?idBlog=819EA91E-9A10-BC4C-45F502910A17E345 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6C8202A4-0C4B-B4E7-1596B33C2BFA4519 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6C8202A4-0C4B-B4E7-1596B33C2BFA4519 Fri, 13 Aug 2010 13:32:15 EST On Wednesday, EPA announced its intention to revise (pdf) the TSCA Inventory Update Rule (IUR). The TSCA Inventory is the official list of chemicals in commerce, and the IUR is the regulation that requires companies to submit production and use data to EPA to ensure the Inventory accurately represents all of the chemicals out there. This week's announcement marks the second time in ten years that EPA has decided the IUR needs improvement, based on agency staff's efforts to regulate toxic chemicals using the data available to them. As Dan Rosenberg points out over at Switchboard, the changes are mostly good, although EPA certainly could have gone further on a few fronts. For one, EPA has expressed some interest in changing the IUR's requirements for reporting occupational exposures - changes that would be a huge improvement - but hasn't yet decided exactly how to implement the changes. Under current regulations, we don't get much information about occupational exposures to toxic chemicals. In addition to total production volume data, companies have to describe the total number of workers likely to be exposed to a chemical (provided in a range), the maximum concentration of a chemical when it's sent off site (or when it's reacted on-site), and the physical form of the chemical. For chemicals produced or imported in quantities greater than 300,000 pounds per year, existing regulations mandate disclosure of some additional information about processing and use, but not enough to significantly improve our understanding of worker exposures. That's in fact rather basic data, and leaves out the details that would allow for better risk management, including information on specific worker tasks and potential exposures. According to EPA, the information submitted under these regulations was so useless that the agency "could develop only qualitative exposure characterizations with relative ranking of low, medium, or high for characterizing potential exposures to various populations." Matt Shudtz http://www.progressivereform.org/CPRBlog.cfm?idBlog=6C8202A4-0C4B-B4E7-1596B33C2BFA4519 http://www.progressivereform.org/CPRBlog.cfm?idBlog=6E14429C-CF07-7767-08CA658B5902A3DD http://www.progressivereform.org/CPRBlog.cfm?idBlog=6E14429C-CF07-7767-08CA658B5902A3DD Fri, 13 Aug 2010 20:52:16 EST In November 2008, with Riegel v. Medtronic recently decided, bills introduced into Congress to overturn its effect, and Wyeth v. Levine about to be argued in the Supreme Court, the President of the American Bar Association created a task force to review ABA policies regarding preemption of state tort law. The composition of the task force was equally split between those who generally favor preemption and those who generally oppose it and included both private practitioners and academics (I was one of those academics). Earlier this month the task force unanimously presented its recommendations to the House of Delegates of the ABA, the policy making body of the ABA, and the House adopted those recommendations by an overwhelming majority. Eschewing any attempt to take a substantive position on the desirability of preemption of state tort law or the lack thereof, the task force focused on the procedures that should accompany any decision to preempt state tort law. The resolution urges that when Congress considers preempting state tort law it should take into account the historic responsibility States have exercised over the health and safety of their populace and to balance that responsibility against the competing concerns for national uniformity. Moreover, Congress should as a regular matter address foreseeable preemption issues clearly and explicitly when it enacts a statute that has the potential to affect state tort law. It should clearly and explicitly state when it intends to preempt state tort law and clearly and explicitly set forth the extent of the preemption it intends, and the extent to which, through a savings clause or other means, it intends not to preempt state tort law. All too often Congress has not spoken clearly, leaving to courts or agencies the federalism balancing that properly lies in the domain of Congress. Bill Funk http://www.progressivereform.org/CPRBlog.cfm?idBlog=6E14429C-CF07-7767-08CA658B5902A3DD http://www.progressivereform.org/CPRBlog.cfm?idBlog=669E3DEB-B154-6AA3-0EA49D9CDE42959B http://www.progressivereform.org/CPRBlog.cfm?idBlog=669E3DEB-B154-6AA3-0EA49D9CDE42959B Thu, 12 Aug 2010 10:05:11 EST Cross-posted from Legal Planet. Administrative agencies sometimes issue regulations that have the effect of overruling state law - and sometimes that is the sole effect of the regulation. This proved quite controversial during the Bush Administration, which used agency rulemaking efforts to cut back on state tort law. The ABA has a adopted a new resolution dealing with this issue. The resolution reads: RESOLVED, That the American Bar Association urges Congress to address foreseeable preemption issues clearly and explicitly when it enacts a statute that has the potential to displace, supplement, or otherwise affect state tort law by: (1) clearly and explicitly stating when it intends to preempt state tort law; and, (2) clearly and explicitly setting forth the extent of the preemption of state tort law it intends, and the extent to which, through a savings clause or other means, it intends not to preempt state tort law or related common law duties FURTHER RESOLVED, That the American Bar Association urges Congress, when making any decision on whether to preempt state tort law, to take into account the historic responsibility States have exercised over the health and safety of their populace and to balance the competing concerns relating to preemption. Daniel Farber http://www.progressivereform.org/CPRBlog.cfm?idBlog=669E3DEB-B154-6AA3-0EA49D9CDE42959B http://www.progressivereform.org/CPRBlog.cfm?idBlog=5F0B05D8-C0B9-11AB-CD4276E33B2D97CB http://www.progressivereform.org/CPRBlog.cfm?idBlog=5F0B05D8-C0B9-11AB-CD4276E33B2D97CB Wed, 11 Aug 2010 08:55:58 EST In June, I wrote about a settlement between EPA and environmental groups that requires EPA to publish guidance on the implementation of National Pollutant Discharge Elimination System (NPDES) permits for concentrated animal feeding operations (CAFOs) and to propose a rule to collect more information on these operations. In that post, I cited numbers from EPA showing that states in the Chesapeake Bay Watershed had many CAFOs without NPDES permits; for some of the states, not a single CAFO was permitted. Maryland had an estimated 220 CAFOs and only 7 with NPDES CAFO permits. In response, the Maryland Department of Environment's Secretary Shari T. Wilson provided an update to the status of the state's CAFO permitting program, showing nearly twice as many CAFOs and improvements in CAFO permitting statistics. The updated numbers are: Yee Huang http://www.progressivereform.org/CPRBlog.cfm?idBlog=5F0B05D8-C0B9-11AB-CD4276E33B2D97CB http://www.progressivereform.org/CPRBlog.cfm?idBlog=5F362CC7-A6C3-DA84-0B06B09097A8778C http://www.progressivereform.org/CPRBlog.cfm?idBlog=5F362CC7-A6C3-DA84-0B06B09097A8778C Wed, 11 Aug 2010 08:42:51 EST CPR Member Scholar Rebecca Bratspies was recently on Chicago Public Radio's Worldview talking about oil spills in the developing world, the power of big companies in small nations, and the broader picture of resource extraction and its effects on people. Said Bratspies: "any oil company that doesn't cut the same corners that the worst player does is going to be at a competitive disadvantage, and that creates a snowball effect, of choices that are not sustainable and choices that are not about doing things in a responsible fashion." Ben Somberg http://www.progressivereform.org/CPRBlog.cfm?idBlog=5F362CC7-A6C3-DA84-0B06B09097A8778C http://www.progressivereform.org/CPRBlog.cfm?idBlog=57FEB5BA-9D97-8006-90BE29F534A9E43D http://www.progressivereform.org/CPRBlog.cfm?idBlog=57FEB5BA-9D97-8006-90BE29F534A9E43D Mon, 9 Aug 2010 13:56:20 EST In the past 15 months, the combination of President Obama's Chesapeake Bay Protection and Restoration Executive Order and the EPA's Bay-wide Total Maximum Daily Load (TMDL) process has established a framework for ensuring accountability and success in Bay restoration efforts. No aspect of this new framework is more important than the Bay states' and the District of Columbia's Watershed Implementation Plans (WIPs), which will demonstrate how they will meet the pollution targets in the applicable TMDLs. While the soundness of states' WIPs depends on a broad array of technical, financial, and administrative factors, our bottom line expectation is that states write clear, objective, and transparent plans so that all watershed partners achieve their TMDL pollution reductions and ultimately restore the Chesapeake Bay. These WIPs will also enable the public to vigorously monitor the progress in meeting those commitments. The Center for Progressive Reform has just issued a set of metrics for grading and evaluating the Chesapeake Bay states' and the District of Columbia's Phase I WIPs. The metrics will evaluate each Phase I WIP by assigning letter grades that evaluate (1) the transparency of information in the WIPs in providing key information about their pollution control programs and (2) the strength of the programs in making actual pollution reductions. The WIPs provide an unprecedented opportunity to objectively measure progress toward restoring the Bay on a state-by-state basis, and the assigned grades will provide a clear and understandable tool for monitoring each state's commitment to restoration. In partnership with the Choose Clean Water Coalition, we are sending each state governor and environmental agency head a copy of the metrics to provide ample notice of what specific information we believe the WIPs should include. The Chesapeake Watershed states are required by EPA to publish their draft Phase I WIPs by September 24, 2010, at which point they will be open for public comment for 45 days. A three-member panel of CPR Member Scholars will evaluate the draft plans and release the grades during that period. Yee Huang http://www.progressivereform.org/CPRBlog.cfm?idBlog=57FEB5BA-9D97-8006-90BE29F534A9E43D http://www.progressivereform.org/CPRBlog.cfm?idBlog=426BE370-09E0-9C70-B0E2CAD6D7DA57D1 http://www.progressivereform.org/CPRBlog.cfm?idBlog=426BE370-09E0-9C70-B0E2CAD6D7DA57D1 Thu, 5 Aug 2010 09:32:56 EST It turns out there's more than one way an offshore oil rig can kill a fish. Even when they're not spewing oil into the ocean, oil rigs kill vast numbers of fish and other aquatic organisms in their daily operations by sucking them up into their cooling water intake systems, where they get squashed against screens and otherwise beat up by the mechanism. Power plants do it too, as does any industrial facility that circulates water for cooling. Congress recognized this problem four decades ago and so put a specific provision in the Clean Water Act directing the EPA to regulate cooling water intake structures. But there's been a fight raging for years about just how EPA should carry out those responsibilities. You may remember that the U.S. Supreme Court weighed in on this controversy last year in Entergy Corp. v. Riverkeeper, largely siding with industry to say that EPA could use cost-benefit analysis to set these regulations. Two weeks ago, the U.S. Court of Appeals for the Fifth Circuit weighed in as well, in a decision in ConocoPhillips, et al. v. EPA that essentially kicked another ball back into the Obama administration's court. That might be good news for the fish, if the decision was simply left to Lisa Jackson's EPA - the agency Congress entrusted with this responsibility in the first place. But with Cass Sunstein's Office of Information and Regulatory Affairs (OIRA) likely to meddle in this rulemaking as it has in others, I'm afraid we may end up with a result that's good for industry but bad for our already struggling aquatic ecosystems. The Fifth Circuit's ruling concerned the final "Phase III" of EPA's regulation of cooling water intake structures, which applies to offshore oil rigs, small power plants and a bunch of other miscellaneous facilities. (Last year's Supreme Court ruling was on Phase II - existing large power plants.) EPA's approach to Phase III was a bit schizophrenic, which meant it had something for everyone to hate. In part of the rule, EPA declined to do cost-benefit analysis and imposed stringent requirements on new offshore oil rigs, which industry challenged. But in another part of the rule, relating to existing small power plants and manufacturers, EPA did do a cost-benefit analysis, and on that basis decided not to issue any regulation at all. Environmentalists challenged that part. In its decision two weeks ago, the Fifth Circuit rejected industry's challenge and upheld the new facilities part of the rule, reiterating what the Supreme Court said clearly in Entergy - that EPA can but doesn't have to use cost-benefit analysis when setting these regulations. As to the existing facilities portion of the rule, the court granted a joint motion by the EPA and the environmentalists to remand it back to the agency. That's the ball that's now in the Obama EPA's court, along with the Phase II rule, which was remanded following the Supreme Court's Entergy decision last year. Amy Sinden http://www.progressivereform.org/CPRBlog.cfm?idBlog=426BE370-09E0-9C70-B0E2CAD6D7DA57D1