en-us 30 140 20 http://www.progressivereform.org http://www.progressivereform.org/imgs/printPageLogo.gif http://www.progressivereform.org/CPRBlog.cfm?idBlog=4863B479-B239-42D9-247372E649C8FB45 http://www.progressivereform.org/CPRBlog.cfm?idBlog=4863B479-B239-42D9-247372E649C8FB45 Wed, 10 Mar 2010 09:04:34 EST Cross-posted from Legal Planet. When government decides that private economic activity needs to be restricted in order to preserve some part of nature, there are two basic ways to get that result - by demanding cooperation through regulation or by buying it through economic incentives or outright purchase. The second approach is often politically easier, but environmentalists have long been skeptical of relying too heavily on it. Two major concerns have repeatedly been expressed. First, paying for conservation suffers from obvious fiscal constraints, especially in times of tight government budgets. Second, it may contribute to what economists call "moral hazard" - the tendency of those who anticipate a government bail-out to ignore the extent to which their activity may pose personal or societal risks. A lengthy story about a conservation deal in the Everglades in Monday's New York Times highlights a third concern: the private side might clean the government's clock in negotiations. The article focuses on Florida's plan to buy out US Sugar. The company is both a major landholder in the area between Lake Okechobee and Everglades National Park and, through runoff from its agricultural fields, a major contributor to the phosphorus pollution that is causing the decline of the native sawgrass ecosystem. In 2008, Florida announced a plan to buy out US Sugar over a six-year period. The company was to end its operations and convey 187,000 acres to the state in return for about $1.7 billion. The cost was to be paid by the South Florida Water Management District, which said publicly that it would not have to raise its taxes. Environmentalists, according to a Reuters story at the time, "raved." Holly Doremus http://www.progressivereform.org/CPRBlog.cfm?idBlog=4863B479-B239-42D9-247372E649C8FB45 http://www.progressivereform.org/CPRBlog.cfm?idBlog=44336ACE-C19F-E5CD-5BB360BD1F1C5893 http://www.progressivereform.org/CPRBlog.cfm?idBlog=44336ACE-C19F-E5CD-5BB360BD1F1C5893 Tue, 9 Mar 2010 13:33:05 EST In response to a question at a National Press Club appearance on Monday, Lisa Jackson said that the EPA would be finalizing an action plan on BPA in the "very near future." As I noted here in January, the EPA had announced in September that it would be releasing action plans on a number of chemicals, including BPA, but when the first group of plans was released in late December, BPA was not among them. I raised a red flag because EPA had sent six draft chemical action plans to White House's Office of Information and Regulatory Affairs (OIRA) on December 14, OIRA hosted a meeting with BPA industry lobbyists a week later, then the BPA action plan was absent from the list of plans released on December 30. OIRA had no business reviewing the chemical action plans in the first place since they are not regulatory actions covered by EO 12,866. Last week, Sen. Chuck Schumer put some pressure on EPA and OIRA, asking Administrator Jackson for a written explanation regarding the "confounding decision" to hold back the BPA action plan. Now that the BPA action plan has been released from OIRA's grip (Inside Story, 3/4/10) and delivered to EPA for publication, what can we expect it to say? Matt Shudtz http://www.progressivereform.org/CPRBlog.cfm?idBlog=44336ACE-C19F-E5CD-5BB360BD1F1C5893 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2EBBF415-A2A0-E9B1-B3367F21114830AC http://www.progressivereform.org/CPRBlog.cfm?idBlog=2EBBF415-A2A0-E9B1-B3367F21114830AC Fri, 5 Mar 2010 09:30:37 EST Imagine opening your medicine cabinet, only to find that the warning and information labels on your over-the-counter medications no longer include dosing information. How would you know how much Benadryl to take or how much aspirin to give to your child? A provision in the Occupational Health and Safety Administration's (OSHA) proposed rule modifying its Hazard Communication (HazCom) Standard threatens to deprive U.S. workers of similar safety information - information they depend upon ever day to protect themselves against the hazardous chemicals that they use in the workplace. CPR Board Member Sidney Shapiro and I have prepared testimony for a public hearing OSHA is holding today on the proposed rule, making the case that the provision is unnecessary and that it would likely leave workers more vulnerable to workplace hazards (full HazCom testimony). As the name suggests OSHA's HazCom Standard establishes a system for communicating hazards about dangerous chemicals to the workers who use them. The standard requires manufacturers to provide a "Safety Data Sheet" on each chemical they produce that explains what hazards the chemical might pose to human health or safety, and recommends steps that users of the chemical should take to avoid these hazards. In this regard, these Safety Data Sheets are a lot like the warning and information labels on over-the-counter medication. Just as you might consult the label before taking over-the-counter medication, workers would consult the relevant Safety Data Sheet before using a potentially dangerous chemical so that they know what precautions to take while using the chemical (For more information about the HazCom standard, see here.) James Goodwin http://www.progressivereform.org/CPRBlog.cfm?idBlog=2EBBF415-A2A0-E9B1-B3367F21114830AC http://www.progressivereform.org/CPRBlog.cfm?idBlog=2F7CB3DE-9C81-D2BF-BFBD576EB93F7E66 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2F7CB3DE-9C81-D2BF-BFBD576EB93F7E66 Fri, 5 Mar 2010 13:01:22 EST Yesterday, the White House released a plan to restore Mississippi and Louisiana wetlands and barrier islands, which have been disappearing at a rapid clip for decades and continue to do so. Hurricane Katrina brought to the fore what many residents of these states already knew: federal, state, and local authorities were neither coordinated nor prepared to protect the Gulf Coast, its ecosystems, and its people from Mother Nature's worst. (See CPR's report on Katrina). The White House roadmap is designed to bring some much-needed order and leadership to Gulf Coast restoration efforts. It's a strong sign from the Obama Administration that it is serious about protecting the Gulf Coast. The roadmap also strives to put ecosystem restoration and sustainability "on a more equal footing with other priorities such as manmade navigation and structural approaches to flood protection and storm risk reduction." It rightly notes that these priorities make up complex pieces of a larger whole: wetlands protect inland ecosystems and communities from dangerous storm surges, for example; bayous, bays, and estuaries produce much of the fish and wildlife that coastal fishermen and communities depend upon for their livelihoods. The elevation of these "ecosystem services" to having "value" on par with priorities such as river navigation is a heartening sign. Shana Jones http://www.progressivereform.org/CPRBlog.cfm?idBlog=2F7CB3DE-9C81-D2BF-BFBD576EB93F7E66 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2C45CA2F-B2FA-0F04-802C431DD3C4E211 http://www.progressivereform.org/CPRBlog.cfm?idBlog=2C45CA2F-B2FA-0F04-802C431DD3C4E211 Thu, 4 Mar 2010 22:02:41 EST Today the top brass from OSHA opened their doors to the many stakeholders who have something to say about how the agency is doing in its efforts to protect U.S. workers. Of course, they got an earful. The event marks a new path for OSHA, in that the head of the agency and top career staff took the time to sit face-to-face with occupational health experts, workers, worker representatives, and even the families of victims of workplace accidents, not just the usual cast of characters from the industry lobbying firms. And it wasn't just a cattle call. OSHA head David Michaels, Debbie Berkowitz (Chief of Staff), Richard Fairfax (Director of Enforcement), and Dorothy Dougherty (Director of Standards) engaged the speakers in a way that showed they not only cared about what the speakers were saying but are genuinely interested in taking action to protect workers from occupational hazards - hazards we know about as well as emerging hazards. My testimony, based on our recent report, Workers at Risk: Regulatory Dysfunction at OSHA, can be found here. Matt Shudtz http://www.progressivereform.org/CPRBlog.cfm?idBlog=2C45CA2F-B2FA-0F04-802C431DD3C4E211 http://www.progressivereform.org/CPRBlog.cfm?idBlog=24784583-BA5A-C6F1-5470BD858550EA6C http://www.progressivereform.org/CPRBlog.cfm?idBlog=24784583-BA5A-C6F1-5470BD858550EA6C Wed, 3 Mar 2010 09:40:27 EST This post, by Sarah Vogel, is cross-posted from The Pump Handle. If you thought the scientific debate about bisphenol A was over or even quieting down, you haven't been reading the latest issues of Toxicological Sciences. (What are you doing with your spare time?) Last month in an editorial piece published in the journal, Richard Sharpe queried: "Is It Time to End Concerns over the Estrogenic Effects of Bisphenol A?" His answer was an unequivocal 'yes', based on the latest study from Ryan et al. (published in the same issue) that found no reproductive effects from bisphenol A exposure in rats. The study, according to Sharpe, "throws cold water on this controversy." Not so fast. On Wednesday, February 17, 2010, the journal published a second letter to the editors, "Flawed Experimental Design Reveals the Need for Guidelines Requiring Appropriate Positive Controls in Endocrine Disruption Research," by Fred vom Saal and 23 other researchers. In a position quite contrary to Sharpe's, the letter pointed to an important design flaw in the study. This latest iteration of the controversy is about a fundamental and persistent challenge in the research on bisphenol A and other endocrine disrupting chemicals - what is the appropriate study design. Issues of animal selection, route of exposure, animal feed and housing, and appropriate use of positive controls all point to the complexity of studying extremely low levels of endocrine disruptors. Ben Somberg http://www.progressivereform.org/CPRBlog.cfm?idBlog=24784583-BA5A-C6F1-5470BD858550EA6C http://www.progressivereform.org/CPRBlog.cfm?idBlog=1A4ABB03-01DA-D1E4-3B1B0E6E0B62B96D http://www.progressivereform.org/CPRBlog.cfm?idBlog=1A4ABB03-01DA-D1E4-3B1B0E6E0B62B96D Mon, 1 Mar 2010 10:15:18 EST Water pollution / water law issues on the front pages of the Times and the Post on the same day?! Yep. NYTimes: Rulings Restrict Clean Water Act, Hampering E.P.A. WashPost: Rising with a bullet among top pollutants: Number Two Ben Somberg http://www.progressivereform.org/CPRBlog.cfm?idBlog=1A4ABB03-01DA-D1E4-3B1B0E6E0B62B96D http://www.progressivereform.org/CPRBlog.cfm?idBlog=19B81FB9-D0C9-3EC0-D936A11E2018E1A1 http://www.progressivereform.org/CPRBlog.cfm?idBlog=19B81FB9-D0C9-3EC0-D936A11E2018E1A1 Mon, 1 Mar 2010 10:17:13 EST The congressional hearings so far on "sudden unintended acceleration" (SUA) in Toyota cars should have made two truths obvious to Washington policymakers. First, the strategy of counting on major manufacturers to voluntarily ensure that their consumer products are safe is unworkable in a competitive market, and second, safety agencies like the National Highway Traffic Safety Administration (NHTSA) need to walk softly but carry a very large stick. Gone are the days when we could reasonably expect government technical experts to shadow manufacturers' design engineers in order to coax them into taking care, even in a market with fewer than ten major manufacturers. But NHTSA still should have stepped out in front of the strong industry trend to rely on electronic controls or, as it is colloquially known, "driving by wire," which is the likely source of SUA, at least in the Camry, and required all manufacturers to install an effective "brake to idle" feature across all models. According to the well-respected consulting firm Safety Research and Strategies, Inc., headed by former Center for Auto Safety staffer Sean Kane, this design, which is found in many other manufacturers' cars operated by electronic throttles, brings the engine to idle if both the brake and the accelerator pedals are applied. Too many Toyota drivers have reported that no amount of braking would bring the car to a stop. As important, now that the worst has happened and an unprecedented number of recalls are in the works, NHTSA must bring the full weight of its enforcement authority to bear on any malfeasance by Toyota. A decision by NHTSA to walk away without inflicting such punishment would encourage auto companies to return to business as usual. None of them want to be the next Toyota, but in the absence of a strong punitive response by the government, manufacturers have compelling incentives to continue to rely exclusively on internal corporate controls rather than disclosing problems to the government. And NHTSA, with a budget that is plainly insufficient to the task of ensuring vehicle safety, cannot protect the public without such full and timely disclosures. Rena Steinzor http://www.progressivereform.org/CPRBlog.cfm?idBlog=19B81FB9-D0C9-3EC0-D936A11E2018E1A1 http://www.progressivereform.org/CPRBlog.cfm?idBlog=0AC46559-0CD0-3C38-F6315D6C70BBA03C http://www.progressivereform.org/CPRBlog.cfm?idBlog=0AC46559-0CD0-3C38-F6315D6C70BBA03C Fri, 26 Feb 2010 09:53:38 EST Thirty-eight years ago today, the dam holding back a massive coal-slurry impoundment (government-speak for a big pit filled with sludge) located in the middle of Buffalo Creek gave way, spilling 131 million gallons of black wastewater down the steep hills of West Virginia. The black waters eventually crested at 30 feet, washing away people, their houses, and their possessions. By the end of the catastrophe, 125 people were dead, 1,121 were injured, and more than 4,000 were left homeless. Interviewed years later, Jack Spadaro, an engineer teaching at West Virginia's School of Mines when the dam broke, told the West Virginia Gazette: "The thing that disgusted me was that people in the valley had been saying for years there was a problem there. They'd been evacuated many times before because of the fear of a dam failure." Spadaro added, "I went through stacks and stacks of documents that went back into the '50s, and I think that, if somewhere along the way, there had been somebody within government willing to say, 'Something really has to happen here,' then those people would be alive and their families would be whole." When EPA Administrator Lisa Jackson took office in the first wave of Obama appointments, she decided to become that official. Correctly identifying the problem of negligent disposal of 140 million tons of coal ash, a type of mining waste even more toxic than the slurry that assaulted the West Virginians, as a first-order environmental justice issue - people living within a mile of a coal ash dump site are 30 percent more likely to be poor and minority than the mainstream population-- Jackson accelerated a 30-year effort to cope with the problem by EPA career staff. We think she produced a proposed rule that would designate the ash a hazardous waste if it is dumped in pits and exempting it if it is recycled safely by, for example, incorporating it into the concrete used to build roads. We can't be sure, though, because before the rule was even published in the Federal Register for comment, it vanished into the bowels of the Office of Information and Regulatory Affairs at OMB, the traditional killing ground for such efforts. We have no idea when it might emerge or what it will say when it does. Rena Steinzor http://www.progressivereform.org/CPRBlog.cfm?idBlog=0AC46559-0CD0-3C38-F6315D6C70BBA03C http://www.progressivereform.org/CPRBlog.cfm?idBlog=05AC3E16-DAD2-5FE5-E9E91930551BF92E http://www.progressivereform.org/CPRBlog.cfm?idBlog=05AC3E16-DAD2-5FE5-E9E91930551BF92E Thu, 25 Feb 2010 10:09:00 EST Add arsenic to the list of carcinogenic chemicals that will see delayed regulation from EPA as a result of OMB's meddling. Last week, after almost seven years' work, EPA released a draft assessment of the bladder and lung cancer risks posed by arsenic in drinking water. But the release of the final arsenic risk assessment is being delayed while EPA's Science Advisory Board is asked to take yet another look at agency scientists' work. As Jonathan Strong wrote in InsideEPA (sub. req'd) last week, the recursive review by SAB is "emboldening" activists who want to delay any potential new drinking water regulations. Demanding external peer review of EPA scientists' work on just about anything is a standard tactic industry uses to bide time before they have to shell out the money to clean up the messes they've made. Witness Sen. David Vitter's hold on President Obama's nominee for the head of EPA's Office of Research and Development (the people responsible for IRIS assessments). Senator Vitter kept the hold on Dr. Anastas for months, until Administrator Jackson agreed to send the long-delayed formaldehyde IRIS assessment to the National Academy of Sciences for Review. That guaranteed Sen. Vitter's constituents in the formaldehyde industry at least another 18 months of regulatory delay - more, if they can pull a few choice words from NAS's eventual report and claim that they undermine the draft assessment. A Senate hold on a presidential nominee isn't the only way to ensure delay, though. Strong encouragement from people within the Executive Office of the President is another, and that's just what the opponents of arsenic regulation got. In October 2008, EPA released an early draft of the arsenic IRIS reassessment for "interagency" review. OMB weighed in, as usual, with a set of comments that ask some highly scientific questions. As we've noted many times before in this space, OIRA's small staff, with their expertise in economics and general regulatory policy and responsibility for overseeing the entire Executive Branch, should not be delving deep into the pre-regulatory science at one agency. Matt Shudtz http://www.progressivereform.org/CPRBlog.cfm?idBlog=05AC3E16-DAD2-5FE5-E9E91930551BF92E http://www.progressivereform.org/CPRBlog.cfm?idBlog=06257EE0-E855-97D8-E3E76E1B467C2F23 http://www.progressivereform.org/CPRBlog.cfm?idBlog=06257EE0-E855-97D8-E3E76E1B467C2F23 Tue, 2 Mar 2010 09:31:57 EST Ordinarily, if an organization with the word "recycling" in its name said unkind things about the Center for Progressive Reform, I'd worry. But the other week, we got dinged by a newly launched outfit called "Citizens for Recycling First," and I'm thinking it's a badge of honor. Before proceeding, let's dwell for a moment on the mental images the group's name conjures up. I'm thinking about plastic bins with recycling logos on their sides, filled by conscientious Americans with soup cans, beer bottles, and aluminum foil. Perhaps you pull up a different mental image. But whatever it is, I'm pretty sure it's not a big hole in the ground with toxic coal ash in it. That little bit of misdirection is probably just what the marketing types of the coal and coal ash industry had in mind when this latest front group went on line. And no doubt when John Ward, past President of the American Coal Council, became its chairman, it wasn't to build a grassroots movement aimed at getting more Americans to turn over their yogurt containers to see what the recycling number is. Matt Freeman http://www.progressivereform.org/CPRBlog.cfm?idBlog=06257EE0-E855-97D8-E3E76E1B467C2F23 http://www.progressivereform.org/CPRBlog.cfm?idBlog=005A578F-B2BD-D027-4A01D76B2E876900 http://www.progressivereform.org/CPRBlog.cfm?idBlog=005A578F-B2BD-D027-4A01D76B2E876900 Wed, 24 Feb 2010 09:21:30 EST A few thousand fishermen and women are making port in Washington, D.C. today to rally against the best hope for the future of fishing. They don't see it that way, of course, but a look at the evidence leaves no other conclusion. The simple truth is that American waters have been overfished for years. When boats take out more fish than nature can replace, fish populations shrink. If fishing efforts doesn't decrease to match the smaller fish population, the resulting overfishing creates a vicious cycle - each year's catch takes a bigger and bigger percentage of the remaining fish, until finally there are so few fish that the entire fishery, and the jobs depending upon fishing, disappear. Unfortunately, we have reached that point of collapse with many of our northeast fisheries, like winter flounder, which is below 10 percent of the targeted level; and American Shad, which is at an all-time low. The crisis has been a long time coming. Like many other countries, the United States spent decades letting the immediate needs of fishing communities guide its fishing plans - and the result has been disastrous. In late 2006, Congress wisely decided that business as usual would drive overfished stocks to extinction. In its reauthorization of the Magnuson-Stevens Fishery Conservation and Management Act, Congress recognized a critical failing in past efforts to stem overfishing: overly optimistic estimates of the "maximum sustainable yield" that could sustainably be fished. They gave the fishing industry too much credit for staying within the limits, and the fish themselves too little time to repopulate. Rebecca Bratspies http://www.progressivereform.org/CPRBlog.cfm?idBlog=005A578F-B2BD-D027-4A01D76B2E876900 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FB4607F4-AC19-CD68-E2DC0EA3E9259B27 http://www.progressivereform.org/CPRBlog.cfm?idBlog=FB4607F4-AC19-CD68-E2DC0EA3E9259B27 Tue, 23 Feb 2010 09:44:38 EST The Obama Administration struck a blow for transparency last week with the launch of an online dashboard allowing users to keep track of what the White House Office of Information and Regulatory Affairs is working on. Good for OIRA for making such information so readily available. CPR plans to put it to good use. This month we began an initiative of our own, CPR's Eye on OIRA project. As the name suggests, we plan to keep careful tabs on what OIRA's doing, what regs it has before it, how long they've been there, which lobbyists are meeting with which OIRA staff, whether OIRA is sticking to its deadlines, and what the end result of OIRA's involvement turns out to be. The hard truth is that, even in the Obama Administration, OIRA is where industry focuses its efforts to weaken needed regulations. OIRA seems to think that's appropriate, which is why CPR intends to apply heightened scrutiny. One example of the value of such efforts is the recent and ongoing dust-up over EPA's effort to regulate coal ash. We've written a lot about it on CPRBlog, but the essential facts are that the coal power plant industry and coal ash reuse industries have been lobbying OIRA night and day for the last few months, trying to head off an EPA regulation on how to deal with coal ash that is not safely recycled. Right now the toxic stuff is stored in large outdoor "containment areas," which sounds a lot better than "holes in the ground," which is what they basically are. EPA sent a draft of a proposal to OIRA in October, and OIRA was supposed to spend no more than 90 days working it over. But OIRA extended its review period by 30 days - something the controlling Executive Order allows it to do. Then OIRA appears to have missed that deadline, too, something the Executive Order does not allow it to do, at least not without EPA asking it to hold the proposal hostage for a while longer. During the Bush Administration, OIRA got in the habit of sitting on regulations just as long as it pleased, regardless of deadlines. That muscle memory persists, now 13 months into the Obama Administration. The coal ash deadline long gone, OIRA and EPA appear to be locked in negotiation over the proposal - a proposal that has not yet seen the light of day, by the way, an indication of why the push for transparency and scrutiny is both important and incomplete. We know as much as we do about the coal ash saga because we've been keeping track, piecing together tidbits of information. OIRA doesn't send out a lot of press releases announcing that it's delaying action, watering down regs, meeting with industry lobbyists and so on. It usually does that sort of thing in the dark. CPR's Eye on OIRA project is intended to focus a little more light on the agency. Matt Freeman http://www.progressivereform.org/CPRBlog.cfm?idBlog=FB4607F4-AC19-CD68-E2DC0EA3E9259B27 http://www.progressivereform.org/CPRBlog.cfm?idBlog=F61446A0-E82A-6CA6-406944898264909D http://www.progressivereform.org/CPRBlog.cfm?idBlog=F61446A0-E82A-6CA6-406944898264909D Mon, 22 Feb 2010 09:29:03 EST Ten years ago, after NHTSA received reports of numerous deaths and injuries linked to Firestone tires and Ford Explorers, Congress passed the TREAD Act, bolstering the authority of the National Highway Traffic Safety Administration (NHTSA) to identify possible defects in vehicles and tires by collecting information ("early warning data") from auto and tire manufacturers. The law requires disclosure of data about incidents involving deaths or injuries, injury and property damage claims (including lawsuits), consumer complaints, warranty claims, field reports (problems reported from dealers, for example), and production data. Ten years later, the Toyota scandal is here, with lives lost. NHTSA is blamed for failing to connect the dots, and Toyota is criticized for a "culture of secrecy." What happened? How could a law designed to improve access to early warning signs of trouble apparently fail so spectacularly? The story is complicated and still emerging, but we will surely miss some important lessons from it if stereotypes -- faceless bureaucrats and secrecy-minded Japanese businessmen! -- become convenient whipping boys. Lesson 1. An all-too-common occurrence in Washington has recurred: when Congress passes a law industry doesn't like, industry turns to the agency in charge of implementing the law for relief - a particularly shrewd tactic during the Bush II years. In this case, in 2002, NHTSA dutifully issued its regulation requiring "Early Warning Reports" from manufacturers on a quarterly basis. One year later, however, at the behest of automakers, NHTSA began what would become a five-year effort to keep much of this information secret from the public, accepting industry claims that the information requested was "confidential business information" (or "CBI"). (For more about NHTSA's CBI rule and its tortured history, see Public Citizen. For government secrecy issues generally, see CPR's perspective.) Shana Jones http://www.progressivereform.org/CPRBlog.cfm?idBlog=F61446A0-E82A-6CA6-406944898264909D http://www.progressivereform.org/CPRBlog.cfm?idBlog=F6DE2E28-F005-A7E9-DF1A6ADA50DD728F http://www.progressivereform.org/CPRBlog.cfm?idBlog=F6DE2E28-F005-A7E9-DF1A6ADA50DD728F Mon, 22 Feb 2010 13:10:05 EST Saturday's Washington Post crystallized a trend of reporting in recent days showing that neither misaligned floor mats nor defective pedals are to blame for all acceleration problems in Toyota cars, at least not in the 2005 model Camry. The car, which has neither piece of offending equipment, does have electronic acceleration controls that are beginning to emerge as a potential cause of the problem. If those computerized systems are at the heart of even a small universe of Toyota's problems, as long-time auto safety expert Clarence Ditlow told the Post, the problem should raise "a huge red flag." Automobile manufacturers have been working for several years to perfect electronic controls in their cars because those systems are much lighter and therefore are important in the effort to improve fuel economy by giving engines less weight to drag around. But you can scour the public record of the National Highway Traffic Safety Administration in vain to find any mention that federal regulators are focusing on the problems caused by electronic systems, a fact that is a damning indictment of how far the agency sank into lethargy during the Bush years. NHTSA's job is to spot trends in auto manufacturing and get out ahead of them, not to react after a sufficient number of deaths and injuries have brought defects to the front pages of newspapers across the country. Investigating "defects" after the fact is not a viable alternative to prospective, prescriptive rules because NHTSA's burden is more challenging at that phase and people have already been killed and injured by the time regulators rush in to mop up the fiasco. So, for example, a prospective rule on electronic controls could require the installation of a viable emergency braking system that could be used by consumers in any circumstance when the electronic system malfunctions and sudden acceleration occurs, and would avoid the problem of sending regulators out to prove a systematic defect in delicate electronic systems after fatal accidents, on wrecked cars, and case by case. Rena Steinzor http://www.progressivereform.org/CPRBlog.cfm?idBlog=F6DE2E28-F005-A7E9-DF1A6ADA50DD728F http://www.progressivereform.org/CPRBlog.cfm?idBlog=F7955AE4-C2C8-26B2-31ED31F510525E2A http://www.progressivereform.org/CPRBlog.cfm?idBlog=F7955AE4-C2C8-26B2-31ED31F510525E2A Mon, 22 Feb 2010 16:29:30 EST Representatives Henry Waxman and Bart Stupak have released a batch of documents this afternoon on the day before their committee hearing on the Toyota debacle. Their focus is largely on the issue of the possible role of electronic failures as a cause of sudden unintended acceleration cases. They criticized Toyota's response to the reports of electronic problems, and in their letter to transportaiton secretary Ray LaHood, say: Our preliminary review of the documents and the information learned from the meetings with NHTSA officials raises two significant concerns. First, NHTSA appears to lack the expertise needed to evaluate defects in vehicle electronic controls. ... Second, NHTSA's response to complaints of sudden unintended acceleration in Toyota vehicles appears to have been seriously deficient. Ben Somberg http://www.progressivereform.org/CPRBlog.cfm?idBlog=F7955AE4-C2C8-26B2-31ED31F510525E2A http://www.progressivereform.org/CPRBlog.cfm?idBlog=E6F83C8D-C5DE-900C-1A853E3EE0DCDDD8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E6F83C8D-C5DE-900C-1A853E3EE0DCDDD8 Fri, 19 Feb 2010 11:04:22 EST Cross-posted from Legal Planet. The past couple of weeks have been crazier than usual on the Bay-Delta. The pumps were first ramped up and then ramped down. Senator Dianne Feinstein (D-CA) pandered to the irrigation crowd (or at least a part of it) by proposing to ease endangered species protections in the Delta. And the fall-run chinook salmon population, which supports the commercial fishery, crashed. First, the pumps. Recall that last fall Judge Oliver Wanger ruled that the Bureau of Reclamation violated NEPA by implementing the 2008 smelt biological opinion without first undertaking environmental analysis. I think that's incorrect as a matter of law; it can't be a violation of NEPA to reduce pumping for conservation purposes, but not a violation to gradually ramp up pumping over the decades that the CVP and SWP have been operating. NEPA analysis should happen, but it should happen when the Bureau is developing its proposed Operating Criteria and Procedures (or when it is considering renewing irrigation contracts), not at the back end of the ESA analysis. Be that as it may, Judge Wanger is sticking to his NEPA guns. He has now ruled that water users are likely to succeed on their parallel argument that implementing the salmon BiOp also violated NEPA. On February 5, Judge Wanger granted a TRO prohibiting implementation for two weeks of a provision of the salmon BiOp that limits the extent to which pumping can reverse river flows. The TRO rested on Judge Wanger's belief that limiting pumping would cause real harm to the water users, but lifting the limit would not cause significant harm to the protected fish. (Curious reasoning, since he also concluded that plaintiffs were not likely to succeed on their substantive ESA challenge to the BiOp. If a valid BiOp says that pumping limits are needed to protect the fish, how can it be that a federal judge knows that those pumping limits are not in fact needed to protect the fish? It makes my brain hurt, but I digress.) Holly Doremus http://www.progressivereform.org/CPRBlog.cfm?idBlog=E6F83C8D-C5DE-900C-1A853E3EE0DCDDD8 http://www.progressivereform.org/CPRBlog.cfm?idBlog=E7A91403-B41E-AE94-8DF7EA70EC3C529A http://www.progressivereform.org/CPRBlog.cfm?idBlog=E7A91403-B41E-AE94-8DF7EA70EC3C529A Fri, 19 Feb 2010 14:17:12 EST Cross-posted from Legal Planet. The Council on Environmental Quality has issued a draft guidance to agencies on treatment of greenhouse gases. The key point is that emissions exceeding 25,000 tons per year of CO2 will be considered a "significant environmental impact" and require preparation of an environmental impact statement. Overall, of course, this is a huge step forward. One point that does deserve further attention is the discussion of land use. On a fairly quick read, I'm not clear on the scope or effect of the draft's discussion of this issue. 1. Scope of the exclusion. The drafts says: "Land management techniques, including changes in land use or land management strategies, lack any established Federal protocol for assessing their effect on atmospheric carbon release and sequestration at a landscape scale. Therefore, at this time, CEQ seeks public comment on this issue but has not identified any protocol that is useful and appropriate for NEPA analysis of a proposed land and resource management actions." It could be true that we don't have a good metric for determining whether a change in federal forest management or grazing rules would cause a significant GHG release. Daniel Farber http://www.progressivereform.org/CPRBlog.cfm?idBlog=E7A91403-B41E-AE94-8DF7EA70EC3C529A http://www.progressivereform.org/CPRBlog.cfm?idBlog=DC7D472F-EAE3-ED21-82E6D44EC71DC226 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DC7D472F-EAE3-ED21-82E6D44EC71DC226 Wed, 17 Feb 2010 10:13:17 EST In 2008 alone, coal-fired power plants produced some 136 million tons of coal ash waste - dangerous stuff, because it contains arsenic, cadmium, mercury, and a host of other toxins that are a significant threat to basic human health. Ironically, coal ash has been growing as a problem in recent years in part because better pollution-control devices capture more toxic contaminants before they go up power plant smokestacks. Last year, around 55 percent of the stuff was piled up in rickety "surface impoundments" - that is to say, holes in the ground - and other unstable structures at hundreds of disposal facilities across the country. In December 2008, we got a stern reminder of just how rickety, when a coal ash spill in Kingston, Tennessee demonstrated the catastrophic consequences that occur when these structures fail. Heavy rain that month combined with a leak in an earthen wall in one such "impoundment" sent 1.1 billion gallons of coal ash slurry sliding across 300 acres of land. The spill's clean-up costs have spiraled to $1.2 billion - equal to about 10 percent of EPA's entire budget. In response to the Kingston disaster and the engineering problems that created it, EPA surveyed 219 disposal facilities containing 584 different impoundment structures to learn more about these structures. The agency released the results in September, and followed up earlier this month by announcing a set of action plans developed by the facilities with coal ash ponds themselves, explaining what they'd do to make their sites safer. Many facilities refused to cooperate in the survey, claiming that they could not answer some of the questions without revealing protected confidential business information (CBI). James Goodwin http://www.progressivereform.org/CPRBlog.cfm?idBlog=DC7D472F-EAE3-ED21-82E6D44EC71DC226 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DDC81C03-EE57-B301-A58200FFFA5D6F93 http://www.progressivereform.org/CPRBlog.cfm?idBlog=DDC81C03-EE57-B301-A58200FFFA5D6F93 Thu, 18 Feb 2010 09:02:42 EST Just to give you an idea of the scope of the situation in Tennessee: More than 3 million cubic yards of coal ash were released into the waterways in the Kingston coal ash disaster in late 2008. This week comes news from cleanup officials that the removal of that waste is 70 percent complete. The EPA's PowerPoint shows that removal of the coal ash from the river is slightly ahead of forecast (slide 16). So, just a half million cubic yards plus to go. Oh, but don't forget, says the Tennessean: TVA plans to remove the more than 2 million cubic yards that lie just west of the river in a second phase that could take three years. The total cost of the cleanup effort could reach $1.2 billion. Officials managing the cleanup can be forgiven for their enthusiasm at the progress to date, even though the road ahead spans several years. What's not quite so forgivable is that the Tennessee Valley Authority's Kingston plant put such inadequate protections against a spill in place to begin with. Ben Somberg http://www.progressivereform.org/CPRBlog.cfm?idBlog=DDC81C03-EE57-B301-A58200FFFA5D6F93