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April 21, 2022 by Michael C. Duff

Justices Wrestle with Mootness and Intergovernmental Immunity in Hanford Workers' Comp Case

It might not be easy to get to the merits of United States v. Washington. A funny thing happened on the way to oral argument: The state of Washington modified the 2018 workers' compensation law at the center of the case, raising the prospect that there is no longer a live dispute for the justices to resolve.

The state's old law, H.B. 1723, was aimed at federal contract workers who got sick after helping clean up the Hanford nuclear site in southern Washington. It created a presumption that certain conditions suffered by those workers were "occupational diseases." The new law, S.B. 5890, expanded the presumption beyond federal workers; the presumption now applies to "all personnel working at a radiological hazardous waste facility." Because the merits of the case concern whether Washington can constitutionally discriminate against federal contractors by utilizing a causation standard making it easier for those employees to obtain workers' compensation awards (with the federal …

April 21, 2022 by Minor Sinclair
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This blog post is the third in a series outlining the Center for Progressive Reform's strategic direction. We previously published "Strengthening the 4th Branch of Government" and "A Turning Point on Climate."

I'm hopeful the recent disco revival won't last but that other resurging movements of the 1960s and '70s will. That era saw the birth and explosive growth of the modern environmental movement alongside other sweeping actions for peace and equality.

Public pressure led to critical environmental laws that continue to protect our natural resources and our health and safety. In 1970, Congress created the U.S. Environmental Protection Agency and enacted the Clean Air Act, which authorizes the federal government to limit air pollution, and the Occupational Safety and Health Act, which established the first nationwide program to protect workers from on-the-job harm. Two years later came passage of the Clean …

April 18, 2022 by Minor Sinclair, Brian Gumm, Sidney Shapiro, Robert Glicksman
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We're sad to share the news that long-time Center for Progressive Reform (CPR) Member Scholar Dale Goble passed away at his home on April 14. Scholars and staff alike appreciated his warm presence at our scholars' meetings, and he brought a wealth of knowledge to the fields of wildlife and conservation law.

Center Vice President Sid Shapiro said, "When the founders of CPR were reaching out to the nation's leading progressive scholars, we were so pleased that Dale agreed to join. His humanity, his dedication to protecting public lands and wildlife, and his participation in CPR will be sorely missed."

Board Member Rob Glicksman added, "Dale was a leader in natural resources management and wildlife law. At a time when interdisciplinary work did not have the cache that it does now, Dale worked closely with scientists in advocating effective approaches to protecting the nation's precious natural …

April 15, 2022 by Michael C. Duff
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This post was originally published by SCOTUSblog. Reprinted under Creative Commons license CC-BY-NC-ND 3.0.

Under established constitutional law, states may generally not tax or regulate property or operations of the federal government. This principle is known as intergovernmental immunity. Congress may waive this federal immunity, however, and the scope of that principle is the major issue in Monday’s oral argument in United States v. Washington.

A 1936 federal law waives federal immunity from state workers’ compensation laws on federal land and projects. Congress passed the law after the Supreme Court held that states could not apply workers’ compensation statutes to federal facilities. The 1936 waiver authorizes state workers’ compensation authorities to “apply [state workers’ compensation laws] to all land and premises in the State which the Federal Government owns or holds by deed or act of cession, and to all projects, buildings, constructions, improvements, and …

April 14, 2022 by Caitlin Kelly
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In 1971, Iowa highway construction workers uncovered 28 human remains. Of these, 26 were white, and two, a mother and her baby, were Native American. The white remains were buried in a local graveyard, while the Native American remains were sent to a local university for study.

This decision was typical in the context of the past centuries' patrimonial laws, scientific racism, and outright genocide. In this case, however, a tribal member named Maria Pearson successfully pushed for both the return and proper burial of the Native American remains and the passage of a state law guaranteeing equal treatment of the remains of Native Americans and other peoples.

Pearson and other advocates continued lobbying for federal protection of their cultural items. In 1990, because of their efforts, Congress passed the Native American Graves and Repatriation Act ("NAGPRA"), which provides a framework for federally recognized Native American tribes …

April 12, 2022 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

The Trump administration left a trail of regulatory destruction behind it. Cleaning up the mess and issuing new regulations is Priority #1 for the Biden administration. Under U.S. Environmental Protection Agency (EPA) head Michael Regan, the effort is beginning to pick up steam.

EPA has begun the year with several major new regulatory efforts. No one of them is transformative standing alone, but their cumulative impact will be substantially cleaner air and lower carbon emissions.

February 28. EPA proposed an unexpectedly strong expansion of the existing rules governing interstate air pollution. The proposal would strengthen existing limits for coal and gas-fired power plants, but it would also add other categories of industry such as cement. In addition, it adds western states like California to the rule's coverage. EPA estimates that the benefits of the rule …

April 11, 2022 by John Knox
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Last month, I had the opportunity to do something truly extraordinary: testify before a U.S. House subcommittee on behalf of legislation with genuine bipartisan support.

The hearing, held March 29 in the House Natural Resources Committee’s Subcommittee on Water, Oceans, and Wildlife (WOW), drew little attention from the mainstream news media. But it is newsworthy nonetheless: The legislation would strengthen human rights protections for Indigenous peoples and local communities around national parks and other protected areas around the world, by conditioning U.S. funding for them on compliance with basic human rights protections. 

It is especially remarkable in the current political environment that the bill resulted from a bipartisan investigation and that it has support from both Committee Chair Raúl Grijalva (D-Ariz.) and Ranking Member Bruce Westerman (R-Ark.). As far as I know, it’s the first bill to be co-sponsored by these two influential …

April 5, 2022 by Jake Moore
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Virginia Gov. Glenn Youngkin (R) recently made a statement bashing the Regional Greenhouse Gas Initiative (RGGI), the East Coast's regional cap-and-trade program intended to reduce climate pollution and energy costs for low-income households. In attacking the program, Youngkin repeated questionable claims about its costs, impacts, and benefits and made clear his desire to move the Commonwealth backwards on climate policy and the clean energy transition.

Virginia joined RGGI to meet the goals outlined in the Virginia Clean Economy Act (VCEA) and Environmental Justice Act (EJA), which were passed in 2020. Funds generated through RGGI are directed toward critical energy efficiency programs for low-income households and flood prevention.

Youngkin has long expressed interest in removing Virginia from RGGI and, through his recent executive order, began his attempt to officially leave the program. The order requires the Virginia Department of Environmental Quality (DEQ) to conduct an analysis of the …

April 4, 2022 by Daniel Farber
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This post was originally published on Legal Planet. Reprinted with permission.

The Biden administration is slowly grinding away at an important regulatory task: reconsidering the air quality standards for particulates and ozone. Setting those standards is an arduous and time-consuming process, requiring consideration of reams of technical data. For instance, a preliminary staff report on fine particulates (PM2.5) is over 600 pages long. When the process is done, the result will not only be better protection of public health. It will also be a reduction in emissions of carbon dioxide and other global warming agents.

Quick legal background: The Clean Air Act requires EPA to set national ambient air quality standards or NAAQS (pronounced "knacks"). They are supposed to be set at a level that, "allowing an adequate margin of safety, are requisite to protect the public health." They're supposed to be revised every five …

March 31, 2022 by Brian Gumm
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A couple of weeks ago, I traveled back to my home state to accept an award on behalf of the Center for Progressive Reform. The first-ever De Prey Peace Awards, named for Sheboygan, Wisconsin, peace activist Ceil De Prey, honor individuals and organizations whose work, volunteerism, and advocacy contribute to peace, a stronger democracy, and a better, more inclusive world for future generations.

Over the course of her life, De Prey has advocated for peace and worked to improve the lives of those around her. This included her past work as a medical researcher and volunteer efforts in every community she lived in. In just one example, for many years, First Congregational United Church of Christ of Sheboygan served what it called “Ceil’s Meal,” which brought together area residents from all walks of life to share meals. Many of the dishes featured at the events were …

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