We’ll soon learn the results of White House deliberations over EPA’s long-delayed coal ash rule, one of the Essential 13 regulatory initiatives we’ve called upon President Barack Obama to complete before he leaves office. Under the terms of a consent decree, EPA is required to issue its new rule by Friday, December 19. As glad as we are to see this phase of the rule’s tortuous odyssey come to a close, we suspect that court, not a victory party, will be the public interest community’s next stop, despite a late-entry exposé aired by 60 Minutes last week.
In the universe of self-inflicted environmental wounds over the last two decades, any “10 best” list must include the brilliant decision to make operators of coal-fired power plants scrub smokestacks to keep mercury, arsenic, cadmium, and lead particles out of the air but neglecting to prevent them from picking the bad stuff up off the grate, carting it a short distance, and dumping it into giant pits in the ground. Utilities generate an astounding 100 million tons of such inky sludge annually. But because the federal government has never issued minimum requirements for such dumps, and state laws are rarely adequate, these pits have been left to grow wider, deeper, and taller, contaminating drinking water and threatening catastrophic spills.Full text
This Giving Tuesday, I hope you'll consider donating to the Center for Progressive Reform. We've had a banner year and are looking forward to many great things in 2015.
Above all, CPR's staff and Member Scholars promote a positive and progressive vision for environmental policy and workers' rights. We need your support to continue that work.
Two days after the midterm elections, we released "Barack Obama's Path to Progress," an Issue Alert laying out an affirmative and politically realistic vision for real progress over the next two years. The Alert identifies 13 essential regulatory actions that the President can and should finish before he leaves office, steps that allow him to save thousands of lives, lock in significant environmental gains, and leave a solid legacy on the regulatory front. Importantly, finalizing these rules is entirely within the province of the Executive Branch, so obstructionism aside, he can get this done.
I hope you've seen the wonderful infographics and blog posts that staff have put together to accompany the Alert. We'll continue to provide regular updates on the Obama Administration's progress on the "Essential 13," and we'll also work with our allies to press the administration into action.
This year we also put forward a positive vision for reforms to state and local laws that would better protect workers' health and safety. Our "Winning Safer Workplaces" manual was a big hit with our allies, and now we're working to help turn the ideas from the manual into reality.
Developing these forward-thinking products is no easy task, but our staff and Member Scholars get them done and still find the time to coordinate advocacy with allies, host webinars, meet with decisionmakers to promote our ideas, write case briefs, and blog with thoughtful and incisive commentary on the latest developments in regulation, environmental policy, and workers' rights.
Your support will help us to continue this great work in 2015. I hope you'll make a donation.
Thanks very much for your support.Full text
I have spent 38 years in Washington, D.C. as a close observer of the regulatory system, specifically the government’s efforts to protect public health, worker and consumer safety, and the environment. The system’s a mess. Regulatory failure has become so acute that we truly are frozen in a paradox. On one hand, people expect the government to ensure that air and water are clean, workers don’t die on the job for avoidable reasons, food is safe, and drugs are efficacious. On the other, these expectations are trashed with alarming frequency. I wrote this book because I have lost near-term hope of reviving the agencies assigned these crucial tasks in a globalized economy. Instead, I argue that the most viable way to staunch the bleeding is to mount an aggressive, relentless effort to prosecute corporate managers for preventable accidents that take lives, inflict grave injury, and squander irreplaceable natural resources.Full text
Only in Washington, D.C. is nothing portrayed as something. Out in the nation, not so much. And so it was late last week that the Obama Administration took a victory lap for not making life even more miserable for some of the most abused workers in America. Yup, despite the best efforts of the Occupational Safety and Health Administration (OSHA), which is supposed to watch out for workers’ well-being, the U.S. Department of Agriculture (USDA), the life-long booster for corporate agriculture, gave a swift kick in the pants to all those low-wage people of color who make the chicken nuggets and chick filets that now dominate what’s for dinner.
Up until last Thursday, USDA was claiming loudly to anyone who would listen that it doesn’t “do” worker protection. Then the agency did a full 180 in the middle of the road, and now claims it has addressed workers’ concerns with the help of its new best friends at OSHA. Those workers are the folks who toil at workplaces so miserable that many states make it a crime to film inside them.Full text
Today, Center for Progressive Reform Member Scholar Robert Verchick published an op-ed in New Orleans' Times-Picayune entitled, "Gov. Jindal, don't sign away our legal claims against BP."
The piece notes:
Governor Jindal will probably sign SB469, a bill designed to neutralize the Southeast Louisiana Flood Protection Authority – East's lawsuit against oil and gas companies. But does our governor realize that, if he signs this bill, he may also be killing scores of claims that his own his own state and associated local governments have brought against BP for the Macondo oil spill?
For, whatever the governor or state lawmakers may believe, that is precisely what SB469 might do.
SB469 clearly lists not only who can bring claims in Louisiana's coastal zone, but what kind of claims they can bring. Notably missing from its list are claims for economic losses and claims for natural resource damages under the Oil Pollution Act of 1990 (OPA) – the very basis for pending claims against BP.
But the state, as well as several parishes, have already brought economic claims under OPA...So have coastal cities...And fire districts...And airports...And school districts...And SLFPAE itself, which presented a claim against BP for more than $79 million, mostly to recover tax revenues it lost because of the oil spill.
These OPA claims are not frivolous or opportunistic. Indeed, Governor Jindal has said for months that one of the reasons he opposed the SLFPAE lawsuit is that he thought it threatened state and local governments’ OPA claims against BP. communities that are bringing these claims were hit hard by the Macondo oil spill. They're trying to recover just some of what they lost.
For example, in its OPA suit against BP, Jefferson Parish has alleged that it suffered:
2.Damage to the quality of life of its citizens
3.Loss of sales tax revenues, use tax revenues, Parish tax revenues, inventory tax revenues, hotel and motel tax revenues, reverence tax revenues, royalties, rents and fees
4.Increased costs of providing services to the citizens of the Parish of Jefferson
5.Damage to the natural resources of the Parish of Jefferson
6.Increased costs for the monitoring of the health of its citizens and the treatment of physical and emotional problems related to the oil spill
7.Costs for educating and retraining employees
8.Increased promotional costs
9.Increased costs to borrow money
10.Increased costs for debt service
11.Loss of fees for permits and licenses
12.Loss of fines and forfeitures income
13.Increased administrative costs
14.Damages to the reputation and image of claimants in the business and tourism communities
Because SB469 works retroactively, it could undo all of these claims. Did Governor Jindal know that, when he pushed SB469 in the legislature?
To read the entire piece click here.
Professor Verchick also drafted a memo with fellow CPR Member Scholars and law professors Christine Klein and William Andreen on the consequences of SB469's passage and they urge the Louisiana legislature to vote against the bill.
To read the memo click here.
June 3 update, Jindal Blinks: According to a June 3 story in the Baton Rouge Advocate, Governor Jindal backed off of plans to sign the bill at a news conference called for the purpose:
Jindal had planned to sign SB469 at a news conference Monday afternoon, but he left the bill untouched after Attorney General Buddy Caldwell asked for time to look into a claim it could be used by lawyers for BP to scuttle suits brought for economic damages during the 2010 oil spill. That claim, put forward by law professors, first arose over the weekend.
“We’re not signing the bill today,” Jindal said Monday. “The attorney general asked for some additional time to look at it, and out of an abundance of caution, we’ll give the attorney general time to do that,” he said.Full text
Basic disclosures of conflicts of interest have been required by the top science journals for decades. Yet most regulatory agencies – despite strong urging from a variety of bipartisan sources – have failed to require these disclosures for private research submitted to inform regulatory decisions. This omission is particularly alarming since, unlike journals, agencies used this research to determine the appropriate standards for protection of public health and welfare. If anything, one would expect the agencies to apply higher scientific standards and insist on greater transparency for privately submitted research as compared to journal editors.
The failure of agencies to meet these bare minimum standards of science has not gone unnoticed. Recently, the Administrative Conference of the U.S. recommended that agencies should, where possible, require these basic disclosures of conflicts, including “whether the experimenter or author had the legal right without approval of the sponsor of the research to: design the research; collect the data; interpret the data; and author, publish or otherwise disseminate the resulting report or full dataset.” See Recommendation #11. Both the Bipartisan Policy Center (p.42) and the Keystone Center (p.20,24) preceded the ACUS recommendation with similar calls for basic conflict disclosures for private research that informs regulation. An editor of Nature recently called for such disclosures, noting:
It was the 1976 film All the President’s Men, about the uncovering of the Watergate political scandal by two Washington Post reporters, that popularized the phrase: “Follow the money.” He who pays the piper calls the tune. Science combats the undue influence of commercial interests — or at least tries to — by using a different guideline, illustrated by a popular catchphrase from another film: “Show me the money.” Give us transparency.
Even members of Congress recognize the need for basic conflict disclosures in environmental in reform legislation (see § 4(b)) that is otherwise considered by environmentalists to be far too lax.
At last, one federal agency has begun to show leadership on this issue. Last November, in a proposed rule that would set standards for silica exposure, OSHA requested that commenters voluntarily disclose funding sources in the course of submitting their comments. While this is simply a voluntary request by OSHA (and compliance with this request may prove disappointing), it is still a step in the right direction. Hopefully other agencies and Congress will follow suit and make the disclosure requirements mandatory for new research submissions that inform public and environmental regulation, holding this regulatory science to at least the minimum standards of the scientific community.Full text
A scant five days before the Department of Interior opens a new round of bids for oil leases in the Gulf of Mexico, the EPA has blinked, pronouncing BP, the incorrigible corporate scofflaw of the new millennium, once again fit to do business with the government.
To get right to the point, the federal government’s decision that BP has somehow paid its debt and should once again be eligible for federal contracts is a disgrace. Not only does it let BP off the hook, it sends an unmistakable signal to the rest of the energy industry: That no matter how much harm you do, no matter how horrid your safety record, the feds will cut you some slack.
Back in 2012, the agency’s intrepid staff had finally gotten permission to pull the trigger on the company, de-barring it from holding any new U.S. contracts on the grounds that it was not running its business in a “responsible” way. Undoubtedly under pressure by the Cameron government and the U.S. Defense Logistics Agency, BP’s most loyal customer, the EPA settled its debarment suit for a sweet little consent decree that will try to improve the company’s sense of ethics by having “independent” auditors come visit once a year.
To review the grim record: BP, now the third-largest energy company in the world, is the first among the roster of companies that have caused the most memorable industrial fiascos in the post-modern age.Full text
As people across the country and around the world watched the tableau of 300,000 West Virginians give up their drinking, cooking and bath water for days on end because an untested toxic chemical was spilled by a company that was co-founded by a twice-convicted felon, the ever-present John Boehner (R-Ohio) had pungent advice for President Barack Obama. “We have enough regulations on the books. And what the administration ought to be doing is actually doing their jobs. Why wasn't this plant inspected since 1991?” he declared. “I am entirely confident that there are ample regulations already on the books to protect the health and safety of the American people. Someone ought to be held accountable here.”
Consistency, of course, is the hobgoblin of small minds and, unfortunately, no member of the media thought to ask Speaker Boehner whether sequestration and other merciless budget cuts might have something to do with the lack of inspections. Or, to put the issue more bluntly: Why won’t anyone in the press ask the Speaker and his ilk whether we get the government we pay for and whether, these days, we aren’t paying—or getting—enough? But fair is fair: John Boehner isn’t the president, and this latest catastrophe happened on President Obama’s watch, along with a string of other, disturbingly similar episodes.
For the past week, 300,000 people in and around Charleston, West Virginia, have been unable to drink the water that came from their taps, because of the toxic byproduct of feeble regulation and non-existent enforcement. Thousands of gallons of a coal-cleaning agent seeped into the local water supply after it oozed out of an antiquated storage tank and then overflowed a surrounding containment area just a mile upriver from the local water plant. Significantly, inspectors had not visited the facility in more than a decade, except by a smattering of state officials focused on air pollution, who walked on by the corroded tank and the bird's eye view of the river.
Disturbingly, we know very little about the effects of the chemical on humans. The weak federal Toxic Substance Control Act and the diminished enforcement power of the EPA and state officials in West Virginia have left local residents and citizens across the country wondering how their government came to be so powerless to stop this obvious hazard, made worse by the keystone-cop ineptitude of West Virginia’s Governor Tomblin in the days after the spill.
The search for an answer to that question leads right to the doorstep of anti-regulation politicians like Sen. Mitch McConnell from Kentucky. Decades of coal mining in the region have taken a profound toll on mountains, valleys, streams, and rivers, throughout Appalachia. And as Charleston takes its place in the history of regulatory disasters alongside the West Texas chemical plant disaster and the BP spill in the Gulf, what is the Senate Minority Leader's priority this week? Not examining how to repair the shredded regulatory infrastructure that left West Virginians without clean water. To the contrary, he's focused on cutting back further on attempts to rein in the pollution caused by coal production.Full text
Efforts to hold private companies responsible for their contribution to climate change just took a big step forward, thanks to researcher Rick Heede. For the past eight years, Heede has painstakingly compiled the historical contribution of fossil fuel companies to today’s concentrations of greenhouse gases. According to Heede’s study ”Tracing anthropogenic carbon dioxide and methane emissions to fossil fuel and cement producers, 1854–2010,” which was published in Climatic Change, just 90 enterprises have accounted for over sixty percent of total industrial carbon dioxide and methane emissions. And just five private oil companies-- ChevronTexaco, ExxonMobil, BP, Shell and ConocoPhillips—have accounted for more than 12 percent of such emissions.
This data is a potential game-changer in how we think of responsibility for climate change. The fossil fuel industry would like us to believe that we are all equally culpable every time we turn on an ignition or a light bulb. But we are not all equally responsible for decisions that have led to climate change—and we certainly have not all benefited from climate change the same way that the five oil companies have. In addition, several of the top emissions contributors actively promoted climate change denial campaigns.
This data is legally significant as well because it gives courts a fair and defensible way for allocating responsibility for damages caused by climate change. Courts need no longer fear that it would be impossible to untangle the private sector’s historical contributions to climate change or unfair to make oil companies, for example, pay for all climate-related damages. A clear formula now exists for allocating at least a significant percentage of the costs of climate change to those companies that benefited most from the public nuisance created by their emissions. Take, for example, the costs of moving the Inuit village of Kivalina, which attempted to sue several of the top polluters for the anticipated costs of relocating their village as a result of climate change. Those costs could now be allocated to the major fossil fuel companies based on their historical contributions to the problem.Full text