Cross-posted from Legal Planet.
Michele Bachmann has introduced legislation to overturn the statute requiring the use of energy-efficient light bulbs, according to E&E News. One feature of the bill is its escape valve:
Bachmann’s bill would allow the mandate to stand if the Government Accountability Office can prove the energy efficient bulbs would meet three criteria: that they provide real cost savings for consumers, significantly reduce carbon dioxide emissions and do not produce health risks for consumers. . .
“Frankly, I would be surprised if the GAO can prove these criteria, but at minimum, my bill will provide the opportunity to examine these important issues,” she added. “The American people want less government intrusion into their lives, not more, and that includes staying out of their personal light bulb choices.”
Why is this GAO escape-valve unconstitutional? The answer stems from the fact that the General Accountability Office is part of the legislative branch. As GAO’s website says:
Full textCross-posted from Legal Planet.
In his book Bayou Farewell, Mike Tidwell tells some haunting stories about the rapid disappearance of the Louisiana coast from his time with Cajun fisherman. Here’s one story:
“We all pile into the crab boat and Tim tells his son to head down the bayou. A few hundred feet away . . . Tim points toward a watery stretch of march grass oddly littered with bricks and concrete.
“’It’s a cemetery,’ he says.
“There, shockingly, along the grassy bayou bank, I can now make out a dozen or so old tombs, all in different stages of submersion, tumbling brick by brick into the bayou water. . . The bayou is swallowing the dead here.”
The fact is that even before the BP Oil Spill, the Gulf Coast and the Gulf of Mexico itself were under siege from damage to wetlands, a poorly regulated oil and gas industry, rising seas, an immense marine “dead zone,” invasive species, and damaged ecosystems. As a result, the fishing communities along the coast were already under siege, along with their unique histories and cultures. The BP Spill was just one more impact to this damaged ecosystem.
Full textCross-posted from Legal Planet.
It’s often said that the Clean Air Act is an inappropriate way to address climate change. It would undoubtedly be desirable for Congress to pass new legislation on the subject, but the Clean Air Act is a more appropriate vehicle than many people seem to realize. There are six common misconceptions about the statute that have led to confusion:
Myth #1: EPA has made a power grab by trying to use the Clean Air Act. Not true — the Supreme Court held that greenhouse gases are air pollutants and directed EPA to make a scientific judgment about whether climate change is a threat to human health or welfare.
Myth #2: The Clean Air Act is only aimed at harms from breathing air pollutants. Again, not true. Inhalation hazards are clearly important, but the statute also addresses hazards such as increased ultraviolet radiation from a weakened ozone layer; harm to paint from reacting with air pollutants; harm to lakes from acid rain; and harm to children from lead dust that has fallen on the ground.
Myth #3: The Clean Air Act addresses only localized pollution problems due to urban air pollution. Many air pollutants such as NOx and SOx can travel hundreds of miles, and harm to the ozone layer is global rather than local. Also, climate change will actually make “ordinary” urban air pollution worse.
Full textCross-posted from Legal Planet.
Although there will be many flashing lights and loud noises, 2011 will primarily be a year in which various events that are already in play evolve toward major developments in 2012.
Litigation. The one exceptional major development in 2011 will be American Electric Power (AEP) v. Connecticut, the climate nuisance case that the Supreme Court has agreed to hear. The odds are good that the Court will throw out the case, the interesting question being what ground the Court will choose. It would be very surprising if the Justices relied on the political question, which the trial courts have favored. The easiest basis for dismissal would be that the federal common law of nuisance is preempted by EPA’s actions under the Clean Air Act, but there will surely be a number of Justices who want to dismiss the case on the basis of standing. The question there is whether Justice Kennedy finds this case distinguishable in terms of standing from Massachusetts v. EPA, where he joined the majority ruling in favor of standing.
Predictions are very chancy regarding the votes of individual Justices, but my prediction is that there will be four votes to dismiss the case on the basis of standing (all the dissenters in Mass. v. EPA); very few if any votes to invoke the political question doctrine; and at least one or two votes (most likely Kennedy and Breyer or Kagan) to dismiss on the basis that the federal common law of nuisance has been preempted.
Although AEP will have symbolic importance and could have some interesting legal implications, it won’t have much practical impact — I don’t think the plaintiffs ever had much of a chance of getting an actual remedy anyway given the enormous factual complexities.
Full textCross-posted from Legal Planet.
I thought it might be interesting to see the general trajectory of CERCLA litigation over the years. The figures for reported court decisions are readily available on Westlaw. (I searched for CERCLA or Superfund by year.) Part of the trajectory makes sense, but part is puzzling.
There’s a clear pattern up through 2002 that’s fairly easy to understand. CERCLA cases began slowly, with one in 1981 and 11 in 1982. The number of cases per year then builds steadily until at peak of 356 cases in 1993. After the peak, the number slowly subsides to 155 in 2002. That pattern seems to make sense for a new law that is mostly designed to fix a finite set of existing sites.
You would expect the number of cases to continue declining or maybe to stabilize at around 150 for a while. But that’s not what happened. In 2003 the number of cases began to rise again, and by 2006 the number was back up to 267. For comparison purposes, that’s higher than any year before 1991 or any prior year after 1996 or any year before 1991. The rate has remained around that level ever since, with a slight dip in 2008 but returning to 269 in 2009.
Note that the turnaround occurred during the Bush Administration after a steady decline during the second Clinton Administration, so presumably this isn’t due to a sudden increase in aggressiveness by EPA. Either something was happening from 1997-2002 to reduce the number of reported cases, or something happened after 2002 to reverse the trend.
Full textCross-posted from Legal Planet.
On Friday the D.C. Circuit rejected efforts to stay EPA’s pending greenhouse gas regulations until the court decides the merits of the appeals. It could well take a year or more for the merits to be decided, so in the meantime EPA can move forward.
The court order does not indicate any view on the merits of the cases, but the court clearly rejected the doomsday scenario painted by industry and the state of Texas:
Petitioners have not satisfied the stringent standards required for a stay pending court review. See Washington Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977); D.C. Circuit Handbook of Practice and Internal Procedures 32 (2010). Specifically, with regard to each of the challenged rules, petitioners have not shown that the harms they allege are “certain,” rather than speculative, or that the “alleged harm[s] will directly result from the action[s] which the movant[s] seeks to enjoin.” Wisconsin Gas Co. v. FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam).
The challengers did win a partial victory, however, because the court agreed to consolidate all of the various challenges before the same panel. However, consolidation will mean even longer delays as the three judges struggle with thousands of pages of briefs and records.
The Supreme Court could reverse the stay denial, but that seems highly unlikely given that the order was joined by two very conservative judges (Ginsburg and Brown).
Full textOn October 14, the White House’s Climate Change Adaptation Task Force released its recommendations to President Obama for how agencies can better prepare the United States to respond to the impacts of climate change. Once again we are reminded of how important it is to have an Administration that takes climate science seriously.
According to the scientists, even if we curb emissions, global temperatures will continue to rise for decades, bringing along with them rising seas, more heat waves, more severe flooding, and more serious droughts. The Task Force’s report is a solid step forward in preparing the U.S. to deal with the challenges of climate change. There are five key recommendations.
1. Mainstream adaptation as a standard part of agency planning. Agency adaptation plans should prioritize the most vulnerable people, places, and infrastructure. The plans should utilize ecosystem based approaches. Getting agencies to prepare these plans may be hard enough, but getting them to implement the plans is the crucial step.
Full textCross-posted from Legal Planet.
Imagine a problem: it’s global; it stems from an extremely complex, interconnected system; it has major economic implications. Sounds like climate change, or in other words, like the kind of problem that the world can’t seem to address effectively. But no, it’s not Global Climate Change, it’s Global Economic Change. And the world seems to be coalescing without much fuss around major regulatory initiatives.
From the NY Times, a story about how the major governments came together and adopted tough rules to deal with potential global crises:
BASEL, Switzerland — The world’s top bank regulators agreed Sunday on far-reaching new rules intended to strengthen the global banking industry and shield it against future financial disasters.
The new requirements more than tripled the amount of capital banks must hold in reserve, an effort to bolster their financial strength and provide a cushion against potential losses. They come two years after the collapse of Lehman Brothers set off a worldwide banking crisis that required billions in government bailouts. But the rules could also reduce bank profits, strain weaker institutions and raise the cost of borrowing for businesses and consumers.
I’m struck by how different this picture is than climate change. We don’t see any Recession Denialists arguing that the economy is actually in great shape, or accusing economists of colluding to cook the data to make it look like we have economic problems.
Full textCross-posted from Legal Planet.
Administrative agencies sometimes issue regulations that have the effect of overruling state law — and sometimes that is the sole effect of the regulation. This proved quite controversial during the Bush Administration, which used agency rulemaking efforts to cut back on state tort law. The ABA has a adopted a new resolution dealing with this issue. The resolution reads:
RESOLVED, That the American Bar Association urges Congress to address foreseeable preemption issues clearly and explicitly when it enacts a statute that has the potential to displace, supplement, or otherwise affect state tort law by:
(1) clearly and explicitly stating when it intends to preempt state tort law; and,
(2) clearly and explicitly setting forth the extent of the preemption of state tort law it intends, and the extent to which, through a savings clause or other means, it intends not to preempt state tort law or related common law duties
FURTHER RESOLVED, That the American Bar Association urges Congress, when making any decision on whether to preempt state tort law, to take into account the historic responsibility States have exercised over the health and safety of their populace and to balance the competing concerns relating to preemption.
Full textCross-posted from Legal Planet.
A key figure in behavioral economics recently issued a warning about over-reliance on its findings. In a NY Times op. ed, Dr. George Lowenstein raised questions about some uses of behavioral economics by government policymakers:
As policymakers use it to devise programs, it’s becoming clear that behavioral economics is being asked to solve problems it wasn’t meant to address. Indeed, it seems in some cases that behavioral economics is being used as a political expedient, allowing policymakers to avoid painful but more effective solutions rooted in traditional economics.
Behavioral economics should complement, not substitute for, more substantive economic interventions. If traditional economics suggests that we should have a larger price difference between sugar-free and sugared drinks, behavioral economics could suggest whether consumers would respond better to a subsidy on unsweetened drinks or a tax on sugary drinks.
But that’s the most it can do. For all of its insights, behavioral economics alone is not a viable alternative to the kinds of far-reaching policies we need to tackle our nation’s challenges.
“Very interesting,” you might think, “But what does this have to do with environmental law?”
Full text