A conventional approach to safety is based on the concept of design events. A building code might say, for example, that a building should be able to survive a 7.0 earthquake. This approach has been basic to the regulation of nuclear reactors. As the interim report of the post-Fukushima NRC task force explains:
[The regulation] also requires that design bases . . . reflect (1) appropriate consideration of the most severe of the natural phenomena that have been historically reported for the site and surrounding region, with sufficient margin for the limited accuracy and quantity of the historical data and the period of time in which the data have been accumulated, (2) appropriate combinations of the effects of normal and accident conditions with the effects of the natural phenomena, and (3) the importance of the safety functions to be performed. [p. 25]
The report points out two flaws with this approach. The first issue is selection of the design-basis event. At Fukushima, the design-basis tsunami was chosen too optimistically and without full consideration of the historical record. [p. viii] It is also difficult to ensure uniform treatment since the method for picking the design-basis event may vary between facilities. [p. 20] Selection of the design-basis event may be arbitrary. For instance, as Doug Kysar has explained, the planner for the New Orleans flood control system excluded some historic hurricanes from their calculations on the theory that those hurricanes were outliers.
Full textCross-posted from Legal Planet.
The U.S. Court of Appeals for the Fifth Circuit has upheld a district court ruling that the federal government is liable for damage from the Katrina storm surge that went up the MRGO canal into the city. As I read the opinion, it is limited in three ways. First, it is crucial that MRGO — the Mississippi River Gulf Outlet — was a navigation project, not a flood control project. The government is immune from flooding caused by a flood control project. Second, the specific negligent action, failure to shore up the sides of the channel, was primarily related to protecting the canal itself rather than to flood control. And third, failure to shore up the sides was not a policy decision, but was based on careless science that led the Corps of Engineers to conclude that there was no risk of harm from a storm surge.
These are fairly unusual circumstances, and it doesn’t seem likely that the opinion would have huge repercussions elsewhere. The government may appeal anyway: it’s not half as serious about building walls against floods as it is about building walls against liability.
Full textCross-posted from Legal Planet.
Governor Romney has endorsed an idea called regulatory budgeting, but it really means capping protection for public health. Romney’s position paper explains the concept as follows:
To force agencies to limit the costs they are imposing on society, and to provide the certainty that businesses crave, a system of regulatory caps is required. As noted, the federal government has estimated that the existing regulatory burden approaches $1.75 trillion. We cannot afford those costs to go any higher. . . .
. . . .In the first term of a Romney administration, the rate at which agencies could impose new regulations would be capped at zero. What this means is that if an agency wishes or is required by law to issue a new regulation, it must go through a budget-like process and identify offsetting cost reductions from the existing regulatory burden.
Most of the EPA’s major regulations are based on public health, and Romney’s “cap” is very much like rationing health care – it says that EPA cannot protect the health of the public from one threat unless it’s willing in exchange to allow another threat to public health go untreated. Putting a compliance cap on public health protections is akin to saying that, because medical costs are too high, a doctor could not accept a new patient without cutting off care to an existing patient.
Full textCross-posted from Legal Planet.
Of course, not everyone agrees that CBA is good in the first place. It remains anathema to many environmentalists. My own view is that it can be a useful tool so long as its limitations are clearly understood.
But just because something is good doesn’t mean that more is better. My grandmother’s view was that if a recipe called for two eggs and one tablespoon of butter, four eggs and two tablespoons would produce an even tastier result — a theory that did not always prove valid. Sometimes, you really just need two eggs!
The same is true of cost-benefit analysis. There are a number of proposals in Congress to expand cost-benefit analysis to cover many additional regulations. A very thoughtful analysis from the Congressional Research Service points out that these proposals may not themselves pass a cost-benefit analysis:
Although there is no “typical” cost-benefit analysis (just as there is no “typical” rule), the cost of conducting many individual regulatory analyses has been in the hundreds of thousandsof dollars. If more agencies are required to prepare more detailed analyses for more rules, it is unclear how the agencies will be able to do so without more resources. As noted earlier in this report, if agencies are required to prepare cost-benefit analyses for rules that are not expected to be controversial and are unlikely to be improved as a result of the analysis, that type of requirement itself may not pass a cost-benefit test.
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Cross-posted from Legal Planet.
I’ve done several postings about the theory that regulatory uncertainty causes unemployment. I’m skeptical of the claim as a general matter, but if there’s any validity to it, one of the major causes of regulatory uncertainty is the Tea Party, along with other libertarians and opponents of regulation.
It’s not hard to see how the prospect of deregulation could cause businesses to delay investments and hiring:
In addition, defense contractors and others who sell to governments — companies that make fire trucks, or print school books, or build highways — have to be very nervous about new hiring and investments given the threat of budget cuts without any revenue increases.
In short, if regulatory uncertainty did turn out to be a major job killer, you’d have to assign some responsibility for unemployment to the Tea Party and other advocates of deregulation.
Full textCross-posted from Legal Planet.
A current conservative refrain is the regulatory uncertainty is holding back the economy. Consider an editorial entitled “Obama’s regulatory flood is drowning economic growth”:
Businesses large and small face more uncertainty today about the federal regulatory environment than at any point since the New Deal . . . . Seeing this tsunami of red tape flooding out of Washington, company owners and executives wisely opt to delay new hires and investments until they have a clearer idea how much their already huge compliance costs will increase and how the markets will be warped by changes mandated by the bureaucrats.
Of course, it sounds better to talk about “regulatory uncertainty” than just to say that businesses hate the idea that they’ll have to cut pollution or give more information to consumers. In any event, there’s so much wrong with the “uncertainty” argument that it’s hard to know where to begin. Here are ten fatal flaws:
Cross-posted from Legal Planet.
I should probably start by putting my cards on the table. I’m not really an advocate of cap and trade as compared with other forms of regulation. What I care about is getting effective carbon restrictions in place, whether they take the form of cap and trade, a carbon tax, industry-wide regulations, or something else. The big advantage of cap and trade from that perspective is that some systems are already up and running, and unlike a carbon tax, it doesn’t directly violate any political taboos. Any of these systems will only be as good as its implementation anyway.
There’s been a lot of debate about environmental justice and cap-and-trade, including some interesting exchanges on this blog prompted by the California litigation on the subject. I thought it would be worth looking into this more carefully, resulting in a short paper on the subject. The most debated issue is whether disadvantaged neighborhoods are likely to get a disproportionate share of pollution (“hotspots”) under cap and trade. The answer depends at least in part on how you define the comparison.
If the question is whether pollution will be higher when you add a new cap-and-trade scheme on top of existing pollution laws, the answer is probably no. The empirical studies of existing trading schemes don’t support show that. As a matter of economics, this would only be if for some reason it was cheaper to add even more controls, restrict production, or close down newer, more efficient plants rather than old, inner-city ones, which seems unlikely.
Full textCross-posted from Legal Planet.
The Supreme Court decided the AEP case. The jurisdictional issues (standing and the political question doctrine) got punted. The Court said that the lower court rulings were affirmed by an equally divided court. So far as I know, this is the first time that the Court has ever done that and then proceeded to a ruling on the merits. (It would seem more appropriate to dismiss cert. as improvidently granted rather than issue an opinion on the merits.) This is actually good news: it means that there were four Justices to reject the political question doctrine and find standing. Since Justice Sotomayor did not participate but wrote the lower court opinion, we know that five Justices would vote accordingly in another case. Hence, it seems clear that lower courts should not apply the political question doctrine in these circumstances and that they should extend standing to climate change cases beyond the strict confines of Massachusetts v. EPA.
On the merits, the Court held that the federal common law of nuisance regarding climate change is preempted by the Clean Air Act’s grant of jurisdiction to EPA to regulate greenhouse gases. This part of the opinion strongly reaffirms the holding in Massachusetts v. EPA. According to today’s opinions,
Massachusetts made plain that emissions of carbon dioxide qualify as air pollution subject to regulation under the Act. 549 U. S., at 528–529. And we think it equally plain that the Act “speaks directly” to emissions of carbon dioxide from the defendants’ plants.
In a concurrence, Justices Alito and Thomas said they were taking this position only for the purposes of argument since no party had contested it. Notably, Chief Justice Roberts and Justice Scalia did not join them, so there seem to be six votes (plus Sotomayor) to uphold EPA jurisdiction at this point.
Finally, the plaintiffs are left with a possible claim under state law. The Court did not reach the question of whether that claim is viable since the issues were not briefed or argued.
Overall, this is about as good an outcome as could have been hoped for after oral argument. It also makes it more complex for Congress to repeal EPA jurisdiction since doing so would restore the federal common law claims.
Full textCross-posted from Legal Planet.
I’ve just spent some time reading the initial briefs in the D.C. Circuit on the endangerment issue. They strike me as much more political documents than legal ones.
A brief recap for those who haven’t been following the legal side of the climate issue. After the Bush Administration decided not to regulate greenhouse gases under the Clean Air Act, the Supreme Court held that greenhouse gases would be covered if they met the statutory requirement of endangering human health or welfare. After much stalling by the Bush administration, EPA followed the scientific consensus by finding that (1) yes, climate change is real and caused by human emissions of greenhouse gases, and (2) that climate change would indeed harm humanity (including Americans). That determination is now being challenged by states such as Texas and Virginia and various other parties like the Chamber of Commerce.
Why do I say that the documents seem more legal than political to me? Two reasons: they rely on debaters’ points that don’t survive examination of the record, and they are crafted to appeal primarily to ideological fellow-travelers rather than the open-minded.
Full textCross-posted from Legal Planet.
I’m beginning to wonder whether we need an “Endangered People Act” to ensure that the most vulnerable get the protection they need from climate change impacts. Climate change will disproportionately affect vulnerable individuals and poorer regions and countries, as I discuss in a recent paper comparing adaptation efforts in China, England, and the U.S. For example, by the end of the century, the number of heat wave days in Los Angeles could double, while the number in Chicago could quadruple, with corresponding increases in deaths. Elderly poor people are more vulnerable to heat stress; they are especially at risk when they are socially isolated. Another example is provided by coastal fishing communities around the world, such as Louisiana’s Cajuns, who will be swamped by rising sea levels. Internationally, millions of inhabitants of river deltas like the Mekong are at high risk from climate change.
We can combat the insidious tendency to downplay the needs of vulnerable individuals and communities with a requirement that planners identify marginal or disempowered groups or communities and ensure that their actions do not jeopardize the lives, homes or livelihoods of those people if possible – and where not possible, that every step is taken to respect the rights of the affected individuals. The White House task force on climate adaptation has made a recommendation to prioritize the needs of vulnerable individual and communities, but it is yet to be seen whether the recommendation will be effectively implemented. A stronger mandate should be considered.
In the international arena, we should be thinking about possible connections between climate change and human rights. Human rights law could be at least a valuable source of inspiration: A human rights focus can redirect attention to people who are otherwise likely to be ignored or unheard. Where communities are already living in precarious circumstances (shanty towns, polluted or otherwise fragile environments), posing human rights questions may help to locate some of the hazards posed by climate change – from desertification, water salination, sea level rise, and so on – as well as those who are most at risk from them.
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