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Greening the Idol Industry in India

I’ve been in Bangalore, India for about two months on a Fulbright fellowship to study Indian environmental law.  While I knew India has major problems with air pollution and sanitation, I didn’t expect that one of the major environmental controversies here would be about greening the idol industry.  Apparently, the gods in India can wreak havoc on the environment.

Each year, Indians sink millions of idols in rivers and lakes to celebrate various festivals.   The biggest festival for idol sinking is Ganesh Chaturthi, held each August or September in honor of the elephant god Ganesh.  Hindus sink Ganesh idols for a variety of reasons, including purifying the home, casting away misfortune, and returning the God to the earth.  

The problem is that most of the idols are made of plaster of Paris and are decorated with brightly colored paints that contain dyes and heavy metals such as mercury and lead.   The plaster of Paris gradually dissolves into the water bodies, making the water cloudy and alkaline and depleting oxygen for aquatic life.   The paints and dyes make the water toxic.

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How the Koch Brothers are Hacking Science

Rhode Island has recently learned that its renewable energy standards could be ruinously expensive. But they’re in good company: more than a dozen states have “learned” the same thing, from reports from the same economists at the Beacon Hill Institute (BHI).

Housed at Boston’s Suffolk University, BHI turns out study after study for right-wing, anti-government groups. Funding for BHI’s relentless efforts has come from Charles and David Koch (leading tea party funders) and others on the same wavelength. For the Rhode Island study, BHI teamed up with the Rhode Island Center for Freedom & Prosperity, a member of the Koch’s State Policy Network.

While BHI’s name and location place it close to the Massachusetts state government, it is philosophically a different beacon on a different hill. Last year BHI requested a grant from the Searle Freedom Trust, aimed at undermining the Regional Greenhouse Gas Initiative (RGGI), a multi-state effort that Massachusetts participates in. The grant application said, “Success will take the form of media recognition … and legislative activity that will pare back or repeal RGGI.” Suffolk vice-president Greg Gatlin said that BHI had not gone through the university’s required grant approval process, and “the University would not have authorized this grant proposal as written.” As it turned out, the proposal was not funded.

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The “Best” Regulatory System Money Can Buy: Lessons from North Carolina’s “Regulatory Reform” Movement

For years, Duke Energy has enjoyed virtual free rein to contaminate North Carolina’s surface and ground waters with arsenic, lead, selenium, and all of the other toxic ingredients in its coal ash waste in clear violation of the Clean Water Act and other federal environmental laws.  And it seems that both North Carolina’s regulators and state legislators are determined to keep it that way.

Last year, the state’s environmental agency actively thwarted citizens’ efforts to sue Duke for violating the Clean Water Act by intervening in the lawsuit at the last minute and then settling with the company for just over $99,000—chump change for a company worth more than $50 billion—and no obligations to clean up their coal ash waste sites or prevent future pollution.  As detailed previously on CPRBlog, the head of the state’s environmental department—appointed by Gov. Pat McCrory, a former executive at Duke who had worked for the company for nearly three decades—promised that he would work as a “partner” to regulated industries in the state.  Federal prosecutors are now looking into whether North Carolina’s environmental regulators engaged in any criminal activity in their efforts to shield Duke.

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Conflict Disclosures for Regulatory Science: Slow but Steady Progress at Last

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. 

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CPR Submits Comments on the Chesapeake Bay Watershed Agreement

Maryland faces an important deadline in its long-running effort to clean up the Chesapeake Bay.  By 2017, the state will be legally required to have put in place a number of specific measures to reduce the massive quantities of pollution that now flow into the Bay from a range of pollution sources in the state.  Unfortunately, if the terms of a draft Chesapeake Bay Watershed Agreement are any indication, we’re going to miss the deadline.

Today, CPR President Rena Steinzor and I submitted comments to the Chesapeake Executive Council, a collaborative partnership of Bay state governors currently chaired by Gov. Martin O’Malley, arguing that the Agreement falls well short.  As the first interstate agreement since EPA issued the Total Maximum Daily Load (TMDL) for the Chesapeake Bay, the Agreement is an opportunity to build off the TMDL and tackle the issues that plan does not address.  Instead, the draft Agreement ignores some of the most pressing issues facing the Chesapeake Bay today.

Our comments urge the Bay state governors to:

  • Hold Agriculture Equally Accountable Across State Lines.  Agricultural operations are responsible for nearly half of the nutrients now choking the Chesapeake.  The authority for the TMDL comes from the Clean Water Act, which does not address nonpoint sources of pollution such as agriculture.  To restore this vital economic and recreational engine, it’s only fair that each sector takes responsibility for its share of pollution.  Bay state governors should use the Agreement to hold each of the various polluting sectors to roughly the same standards across state lines.
  • Invite EPA Oversight.  The Bay’s recent progress is largely the result of the federally led TMDL, and the Agreement should acknowledge EPA’s critical role in restoring the Bay. 
  • Address Toxics and Climate Change.  The Agreement was the states’ chance to address some of the issues unaddressed by the TMDL, most notably toxic chemicals in the Bay and the problems resulting from climate change.  Despite mounting evidence of impacts to fish and other resources, the draft Agreement omits any commitment to reduce—or even research—toxic pollution in the Bay and its tributaries.  It is likewise inexcusable that the draft fails to even utter the words “climate change.”  In the final Agreement, the authors must acknowledge reality and address the very real impacts that toxics and climate change are already having on the Bay.

This tepid don’t-rock-the-boat agreement harks back to yesteryear, when Bay states spent two full decades getting very little done.  We urge Governor O’Malley, the head of the Chesapeake Executive Council, and other Bay state governors to revise the Agreement so the final document reflects the true value Bay restoration represents to the region.

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EPA Declares BP a 'Responsible Contractor' Makes It Eligible Again for Federal Contracts in the Gulf

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. 

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CPR Submits Comments on FDA's Proposed Generics Labeling Rule

If you’re harmed by an improperly labeled prescription drug you’ve taken, should your ability to hold the manufacturer accountable in court depend on whether that drug was “name brand” or “generic”? Strangely, it does matter, thanks to the 2011 U.S. Supreme Court decision in Pilva v. Mensing. There, the Court held that because of a quirk in the Food and Drug Administration’s (FDA) regulations, generic drug manufacturers were shielded against plaintiffs’ state tort law failure-to-warn claims that alleged that a generic drug’s labeling failed to provide adequate warning of particular health risks.  The Court reasoned that since the FDA’s regulations didn’t readily allow generic drug manufacturers to update their labels quickly to warn consumers against any newly discovered risks, it would be impossible for those same generic drug manufacturers to fulfill a separate state tort law duty to provide such warnings through adequate labeling.  The impossibility of complying with both legal duties simultaneously compelled the Court to find that the FDA’s regulations preempted the plaintiffs’ state tort law claims.

In the wake of that decision, the FDA has proposed to amend its regulations to eliminate this disparity.  Specifically, the proposal seeks to extend to generic drug manufacturers the ability to use the “changes being effected” supplement process (often called “CBE changes”) to make changes to their product labels.  It’s a little complicated, but the basic gist is that CBE changes enable drug manufacturers to update product labels relatively quickly whenever they become aware of certain kinds of information regarding the potential risks of their drugs.  The goal of the CBE changes process is to empower drug manufacturers to provide consumers and their doctors with relevant risk information as quickly as possible, so that they can make the best-informed decisions possible about whether and how to take a particular drug.   The public comment period for the proposal ends this Thursday, and CPR Member Scholars Tom McGarity and Sid Shapiro and I have submitted comments that aim to highlight for the FDA an important, but easily overlooked benefit of this rulemaking—namely, the invaluable role that a vibrant state civil justice system can play in complementing and reinforcing the FDA’s regulatory programs so that they are better able to protect the public against unreasonably dangerous drugs. 

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Enforcement of Environmental Laws a Victim of Obama’s Budget Proposal

EPA’s budget is in free-fall.  Members of Congress brag that they have slashed it 20 percent since 2010.  President Obama’s proposed budget for 2015, released on Tuesday, continues the downward trend.  The budget proposal would provide $7.9 billion for EPA, about $300 million, or 3.7 percent, less than the $8.2 billion enacted in fiscal year 2014.

To cope with these cuts, the agency plans to fundamentally change the way it enforces environmental laws.  A draft five-year plan released in November signals that the agency is retreating from traditional enforcement measures, such as inspections, in favor of self-monitoring by regulated industries.  Specifically, the agency aims to conduct 30 percent fewer inspections and file 40 percent fewer civil cases over the next five years as compared to the last five.

Even before releasing the draft plan, the agency had already begun cutting down on enforcement.  In February, the agency reported a decrease in the number of in-person inspections and investigations in 2013 compared to the previous year.  According to the EPA’s own report, enforcement actions in 2013 resulted in the reduction of 1.3 billion pounds of pollution, down from a high of more than 2 billion pounds in 2012.  EPA conducted 2,000 fewer inspections and evaluations and initiated about 2,400 civil cases last year, continuing a downward trend since fiscal 2009 when the agency opened about 3,700.

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The Keystone EIS’ Grudging Acknowledgment of Environmental Impact

The media has reported, erroneously, that the Obama Administration’s environmental impact statement concluded that the Keystone Pipeline would have no impact on global climate disruption. The facts are a bit more complicated, and much more interesting. Basically, the final EIS concedes that Keystone would increase greenhouse gas emissions, but it uses a silent political judgment masquerading as scientific analysis to minimize its estimate of the increase’s magnitude. Accordingly, President Obama has ample grounds to reject the Keystone Pipeline application.

Let me explain. The EIS concedes that the construction project creating the Keystone Pipeline would produce .24 metric tons of carbon dioxide equivalents (MMTCO2E) per year until TransCanada completes the pipeline. It also admits that operation of the pipeline after construction would produce 1.44 MMTCO2E per year, about the emissions of 300,000 passenger vehicles.

Although this is a lot of emissions, the really huge emissions come not from the construction and operation of the pipeline, but from the extraction and use of tar sands oil. The EIS concludes that the tar sands oil transported through the pipeline would produce a whopping 147 to 168 MMTCO2E per year in lifecycle emissions, approximating the annual emissions of more than 30 million cars. The huge emissions associated with tar sands oil has led James Hansen, a leading climate scientist, to conclude that exploiting tar sands oil means “game over” for climate change.

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The Lost World of Administrative Law

The regulatory process has become more opaque and less accountable. We need to fix that.

Every year, thousands of law students take a course in administrative law.  It’s a great course, and we wish even more students took it.  But there’s a risk that students may come away with a vision of the regulatory process that is increasingly disconnected with reality.  Worse, the leading judicial opinions on the subject suggest that judges may suffer from a similar disconnect.

The Administrative Procedure Act is based on the premise that Congress delegates the power to address a problem to an agency, which then applies the statute to formulate a regulation.  Policy is driven by the statute along with the views of the agency head, who is appointed by the President and confirmed by the Senate.  But the realities are often different.  Policy is often driven, not so much by Congress, as by Presidential orders requiring the use of cost-benefit analysis.  The final decision about whether to regulate, and even the details of the regulation, may be decided by a White House office called OIRA.  The head of the agency is frequently a temporary appointee, generally a lower level agency official who may not have much clout within the executive branch.  The regulatory system as it actually operates is much different from the world envisioned by administrative law.

In a recent paperAnne Joseph O’Connell and I document this disconnect and discuss its consequences.  We think it likely that something like the current system will persist.  Administrative law aims to make the regulatory process more open and transparent, more faithful to statutory mandates, and more attentive to scientific expertise - all while respecting the primary role of the executive branch in issuing regulations.  To further these goals given current realities, OIRA process must become much more transparent and accountable.  Transparency will help ensure that an agency’s statutory mission and its scientific expertise don’t get submerged by OIRA staff who care only about their own policy goals and lack deep expertise.  Regardless of whether you share OIRA’s passion for cost-benefit analysis or revile it, we should all be able to agree on the need for improving the process.

This blog is cross-posted on Legal Planet.  

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