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Winning Safer Workplaces

Thousands of U.S. workers die on the job each year, the victims of unsafe workplaces. Countless more are injured, some permanently disabled, or exposed to toxic substances that could eventually harm or kill them. While the federal Occupational Safety and Health Administration has made progress to improve workplace safety since Congress passed the OSH Act in 1971, a new advocacy manual from the Center for Progressive Reform focuses on the progress on worker safety issues  likely to come at the state and local levels, far from the general dysfunction in Washington.

Winning Safer Workplaces: A Manual for State and Local Policy Reform, written by a team of lawyers and public health researchers, offers local advocacy groups a series of policy proposals, all ripe for enactment by state legislatures, city or county councils, or state or local agencies. 

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Utility Air Regulatory Group v. EPA: Little Impact on EPA Regulation of Greenhouse Gases

In Utility Air Regulatory Group v. EPA, seven members of the Supreme Court upheld the most important feature of the EPA’s Prevention of Significant Deterioration (PSD) program: the ability to require the vast majority of new and modified sources to install the “Best Available Control Technology” for reducing greenhouse gases (GHGs).  As a consequence, eighty-three percent of significant new and modified sources will continue to be subject to the BACT requirement for their GHG emissions. Although the Court reversed, by a five-to-four vote, EPA’s contention that greenhouse gas emissions alone could trigger the PSD program, that reversal will have little impact because it will eliminate PSD requirements for only about three percent of significant stationary GHG sources.  Justice Scalia’s majority opinion had some choice words for EPA, but it remains to be seen whether those words spell trouble for newly emerging climate regulations. 

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Today's Supreme Court Ruling: Three Key Questions

Direct implications are limited, but we'll be reading the tea leaves for future implications.

Scholars, lawyers, and judges will be spending a lot of time dissecting today’s ruling.   Overall, it’s a bit like yesterday’s World Cup game — EPA didn’t win outright but it didn’t lose either.

Here are three key questions with some initial thoughts:

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Enforcement and Regulatory Governance

Co-authored with David L. Markell

Enforcement is widely acknowledged to be an indispensable feature of effective governance in the world of environmental protection and elsewhere. Unfortunately, criticisms of the U.S. government’s efforts to enforce the environmental laws began almost with the inception of the Environmental Protection Agency (EPA) more than forty years ago – and they continue virtually unabated today.

In a 2012 report, for example, the U.S. Government Accountability Office(GAO) noted that “EPA has reported that it is not achieving all of the environmental and public health benefits it expected . . . because of substantial rates of noncompliance.” Former EPA Administrator Lisa Jackson acknowledged in 2009 that “[t]he level of significant non-compliance” with various Clean Water Act requirements had grown “unacceptably high.” Even EPA’s enforcement office has admitted significant shortcomings, noting that “violations are . . . too widespread, and enforcement too uneven.”

Assessments have found serious deficiencies in state enforcement performance too. This is a significant weak spot for environmental protection because of the central role that states play in the U.S. cooperative federalism system of environmental protection.

Several looming challenges have exacerbated concerns about enforcement. In many areas of environmental regulation, the size of the regulated community has expanded dramatically, putting additional pressure on government data-gathering, monitoring, and enforcement capacities. For example, the number of point sources subject to CWA permitting requirements, such as those responsible for stormwater discharges and pesticide applications, doubled over a recent ten-year period.

 

 

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Controlling Power Plants through Clean Air Act § 111(d): Achieving Co-Pollutant Benefits

Power plants are not only one of the nation’s largest sources of greenhouse gases, they are also a significant source of sulfur dioxide, nitrogen oxides, particulates, and mercury, all of which have direct public health and welfare consequences. EPA’s recently proposed Clean Power Plan, which applies Clean Air Act § 111(d) to reduce greenhouse gases (GHGs) from the nation’s fleet of fossil-fuel power plants, will have important implications for these ubiquitous co-pollutants.  Although the primary goal of the Clean Power Plan is to reduce GHGs, ancillary co-pollutant benefits are an important consideration in evaluating alternative mechanisms for controlling GHGs. 

The key to maximizing co-pollutant benefits will be shifting away from coal-fired power, the energy source that emits the highest levels of both GHGs and co-pollutants, and encouraging a more widespread shift from fossil fuels to no-carbon alternatives like consumer energy efficiency and renewable energy.  Ultimately, notwithstanding environmental justice concerns about cap-and-trade programs, the most critical issue will be setting stringent targets that prompt change, not their particular regulatory forms.  EPA’s Clean Power Plan has laid the groundwork for a transformative and stringent approach by establishing a system-wide approach to reducing power sector emissions, but it remains to be seen whether the agency has established stringent enough targets to achieve § 111(d)’s full potential to reduce both GHG and co-pollutant emissions.  (This blog is based upon a longer article entitled: “Controlling Power Plants, The Co-Pollutant Implications of EPA’s Clean Air Act § 111(d) Options for Greenhouse Gases,” 32 Virginia Envtl. L. J. 173 (2014).)

EPA’s Clean Power Plan

Pursuant to CAA § 111(d), EPA identified the “best system of emission reduction … adequately demonstrated” (BSER) for reducing power plant emissions.  Importantly, EPA determined that a system-wide approach, that takes advantage of both “inside the fence” options at power plants and “outside the fence” options, like renewable energy and consumer energy efficiency, constitutes BSER.  EPA assessed each state’s capacity to achieve reductions through available measures and set interim and final “carbon intensity” targets for each state to achieve.  States will then be required to develop state-specific plans that demonstrate how they will achieve the EPA targets.  Although EPA defined each state’s target by identifying a range of available measures, EPA did not directly require each state to take the measures used to define its target.  Instead, EPA gave each state the flexibility to achieve its target through whatever combination of mechanisms it chooses.

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India Launches Sweeping Mandatory Program on Corporate Social Responsibility

With little notice in the West, India has just launched the most far-reaching corporate social responsibility (CSR) program in the world.  The CSR law, which took effect April 1, requires large and mid-sized firms to contribute at least 2% of their pre-tax profits (averaged over the previous three years) to social, health, educational, or environmental causes.  It also requires companies to prepare a formal CSR policy and to report annually on their CSR activities.  The CSR law, section 135 of the Companies Act of 2013  was part of the first major overhaul of Indian corporate law in nearly sixty years. In February, the Ministry of Corporate Affairs issued regulations implementing the new law.  

The money involved is huge for India.  The CSR requirement is expected to raise $2 to $5 billion annually for the social sector.   A comparable 2% spending requirement in the United States would raise more than $48 billion per year, assuming it applied only to corporations.  Even more money would be raised in the U.S. if such a requirement applied to “pass through” entities such as partnerships.

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Does OIRA Live Up to Its Own Standards?

OIRA should conduct a cost-benefit analysis of its own activities and explore alternatives to its current oversight methods.

A White House office called OIRA polices regulations by other agencies in the executive branch.  OIRA basically performs the role of a traditional regulator – it issues regulations that bind other agencies, and agencies need OIRA approval before they can issue their own regulations.  Essentially, then OIRA regulates agencies like EPA the same way that those agencies regulate industry.  Issuing regulatory mandates and permits is a very traditional form of regulation, often called command and control.

There are a number of well-known criticisms of command-and-control regulation for being “one size fits all,” too rigid, unable to take advantage of information held by the regulated entities, and economically inefficient.  One might predict that OIRA’s own regulations would suffer from similar flaws.  To the extent that OIRA is trying to overcome these problems in other agencies, it might do well to reexamine its own activities applying the same standards.

OIRA pushes agencies toward greater consideration of the costs of their mandates and toward consideration of alternatives to command and control.  But maybe OIRA should turn some of its scrutiny inward to see how well it lives up to its own goals in its activities.

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Remedying Toxic Exposures: Will CERCLA Continue to Help?

On Monday, June 9, 2014, the U.S. Supreme Court decided CTS Corp. v. Waldburger, --- U.S. ---, --- S. Ct. ---, 2014 WL 2560466 (June 9, 2014), a case that posed the seemingly simple legal question of whether the federal Comprehensive Environmental Response, Compensation, and Liability Act (“CERCLA,” also known as Superfund), 42 U.S.C. §§ 9601-9675, preempts state statues of repose. Behind that legal question, however, lies the issue of whether the plaintiffs landowners do or should have a state-law remedy for the fact that CTS Corporation contaminated their properties with toxic chemicals as part of its electronics business between 1959 and 1985.

CTS sold the property in 1987, and the plaintiffs brought suit in 2011, alleging a state-law nuisance claim. North Carolina, the state where the properties are located and where the suit was filed, has a 10-year statute of repose. CTS argued that the statute of repose barred the plaintiffs’ nuisance claims, and the U.S. Supreme Court, in what is basically a 7-2 decision with the majority opinion authored by Justice Kennedy, agreed.

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Clean Energy Politics

The EPA’s June 2, 2014 announcement of a Clean Power Plan is momentous. On the surface, its scope, complexity, potential for myriad legal challenges and, not to mention, the difficulty of gathering reliable cost and benefit data, make it so. Mothers should advise their children to grow up to be energy lawyers, not cowboys.  However, what makes this proposed rule more significant are the below the surface core principles and concepts that make the Clean Power Plan a game changer for the practice areas of environmental and energy law and policy.

It is a historical curiosity that the field of environmental law preceded energy law in the 1970s. It is also a historical curiosity that these two disciplines developed largely independently of each other, even though they are naturally connected by the physical fuel cycle.  Environmental consequences follow the fuel cycle from the exploration and extraction of the natural resources used to produce energy through their processing and distribution to their consumption and disposal.   

The two disciplines were driven by conflicting concerns, employed different metrics, and used different vocabularies and languages.  Energy lawyers focused on efficiency in the exploration, extraction, and production of natural resources.  Environmental lawyers focused on issues of ecosystem preservation, species protection, natural resources conservation, and human health improvement.  Measuring the costs and benefits of energy production against environmental protection has proven to be frustrating, difficult, and contentious. Indeed, where energy lawyers were more familiar with costs and benefits; environmental lawyers were more comfortable with preservation and conservation aside from economic calculations.  More often than not, the two sides simply talked past each other.

 

 

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EPA’s Proposed Power Plant Regs: Solid Legal Footing, Considerable Flexibility

On June 2, 2014, the United States Environmental Protection Agency issued its much awaited and debated proposed Clean Air Act Section 111(d) regulations to reduce greenhouse gas (GHG) emissions from existing electric utility generating units, colloquially referred to as power plants.  And because the largest GHG emitters in this category are coal burning plants, such plants and linked businesses and coal-intensive jurisdictions all have nervously awaited these proposals.  In an earlier blog analysis, I assessed the statutory language and how it provides EPA with considerable latitude to allow for flexibility and trading of pollution.

Now we have the actual proposal, which in turn solicits comments as the next step in the notice and comment process.  Weighing in at 645 pages, this proposal will be scrutinized by  legions of lawyers, environmentalists, and political pundits in the coming months.  Nevertheless, a quick review of this important proposal reveals its basic logic and strong legal basis.  Most importantly, it provides a huge amount of flexibility and room for cost-effective trading and energy efficiency. It also is careful not to punish utilities and jurisdictions that have been leaders in their embrace of GHG reducing strategies and energy efficiency.  If finalized, markets for energy efficiency and reduced energy demand should thrive, as should carbon trading markets.

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