Cross-posted from Legal Planet.
According to Thursday's NY Times, Senate Democrats have agreed to include a utilities-only cap-and-trade program in their energy bill. That’s certainly not ideal — it excludes a large number of industrial sources, which limits its environmental effectiveness. The utilities-only program will also be less economically efficient, since it precludes taking advantage of possible low-cost reductions available in the industrial sector.
Opinions will always differ about how much you can compromise before the game isn’t worth the candle. I’m generally inclined toward the view that half a loaf is better than none. In particular, passing any kind of federal climate legislation would be important as a first step toward something bigger. It would help reestablish momentum and would be an important symbolic recognition of the seriousness of the problem. In more concrete terms, it would bring the coal states into the mitigation process. That could also happen through EPA’s implementation of the Clean Air Act, but getting those regulations in place and implemented could be a tortuous process.
This assumes that the bill would actually be a step forward. But if its preempts existing state and federal efforts without giving enough in exchange, then it could actually be a step backward. So it’s important for environmentalists and the Administration to fight hard against overly expansive preemption.
Cross-posted from Legal Planet.
On Thursday, the Senate voted down a resolution from Sen. Lisa Murkowski’s (R-AK) to halt EPA regulation of greenhouse gases. The vote was 53 to 47. What are we to make of the vote?
The resolution was offered under the Congressional Review Act, which provides a fast-track mechanism for Congress to override agency regulations. (The CRA, which was part of the Contract with America in the 1990s, is a substitute for the kinds of “legislative vetoes” that the Supreme Court has found to be unconstitutional. There’s a detailed discussion in this law review note.) You may recall that EPA’s endangerment finding was made after the Supreme Court held that, if climate change endangers human health or welfare, EPA has a duty to make a finding to that effect and to regulate greenhouse gases. In effect, the Murkowski resolution would amend the Clean Air Act to reverse the Supreme Court’s interpretation of the statute and exempt greenhouse gases from regulation.
David Doniger has posted a thorough analysis of Murkowski’s arguments. The attorney generals of 11 states also posted a letter opposing the resolution.
It seems plain that, despite her claims to the contrary, the resolution was aimed at preventing any action on climate change, whether by EPA or Congress, not just at shifting the decision-making to Congress. Regulation by EPA may not be ideal, but without the threat of EPA regulation, it’s even less likely that the Senate will shoulder its responsibilities to make climate policy. Still, Senators could vote for the resolution while still claiming to believe in the need for climate legislation. Indeed, given President Obama’s pledge to veto the resolution if passed, a “no” vote didn’t necessarily have much practical significance, making it a cheap way to placate conservative voters or home-state corporations.
Thus, the “yes” votes are a little hard to read: some of them were undoubtedly votes against any form of climate regulations; others may not have been. On the other hand, the 53 Senators who voted against the resolution do seem committed to action on climate change. We just need seven more votes to pass new legislation. In the meantime, at least the Clean Air Act is there as a fallback option. Murkowski is right that it would be much better for Congress to legislative in this area than for EPA to regulate under the Clean Air Act — but the best way to get Congress to get its act together is for EPA to press ahead with its own regulations.
Rob Verchick’s new book, “Facing Catastrophe: Environmental Action for a Post-Katrina World,” might help avoid future disasters like the Deepsea Horizon blowout.
Verchick views wetlands, lakes, forests, and rivers as a kind of infrastructure, providing ecosystem services that are just as important as the services provided by other infrastructure, such as roads and dams. For instance, Gulf Coast wetlands provide a buffer against storm surges (protecting not only people but key oil facilities), and nurtures vast numbers of birds and sea creatures (including a fifth of all U.S. seafood). He makes a compelling case that we need to do more to preserve this crucial infrastructure.
Too often, Verchick says, we rely on cost-benefit analysis (CBA) to guide our decisions about preservation. Like many critics of CBA, he argues that it shortchanges such important values as preservation of human life and natural wonders; undercounts the interests of future generations; and assumes a degree of knowledge about risks that is often out of reach. He also points out that “most of the flaws in the cost-benefit approach regarding monetization, discounting, and uncertainty are grossly amplified in cases of low-probability, high-magnitude events.” Think Katrina. Think Deepwater Horizon.
Instead of CBA, Verchick contends we should stress three principles. First, we should minimize exposure to hazards by preserving natural buffers and integrating those buffers into artificial systems like levees or seawalls. Second, we need to pay close attention to issues of environmental justice. Third, we need to cultivate a precautionary attitude toward disaster risks. In particular, we should make much more use of scenario analysis, considering a range of possible futures, rather than trying to guesstimate the odds of any one outcome.
In my view, his point about scenario analysis is especially powerful. RAND pioneered a method called “future-now thinking,” which has given rise to impressive scenario exercises by global companies like G.E. and Shell, as well as sophisticated governmental efforts like Finland’s FISKEN project. Even the Army Corps of Engineers is getting into the act, using scenarios to help plan the post-Katrina flood control system.
As Verchick points out, scenario planning can help planners “break out of established assumptions and patterns of thinking.” This is particularly important because experts believe “failures in crisis management can usually be attributed to a lack of imaginative vision or denial of that vision.”
Full textCross-posted from Legal Planet.
We’ve known all along that offshore drilling in the Gulf placed at risk exceptionally valuable and sensitive coastal areas. We need look no further than a forty-year-old court decision on Gulf oil drilling, which made the dangers abundantly clear.
In 1971, President Nixon announced a new energy plan involving greatly expanded offshore drilling. In a landmark early NEPA decision, the D.C. Circuit held that the environmental impact statement gave insufficient consideration to alternative energy strategies. The opinion begins with a discussion of the risks of oil spills, drawn largely from the EIS. The language is startlingly relevant today:
Full textAdjacent to the proposed lease area is the greatest estuarine coastal marsh complex in the United States, some 7.9 million acres, providing food, nursery habitat and spawning ground vital to fish, shellfish and wildlife, as well as food and shelter for migratory waterfowl, wading birds and fur-bearing animals. This complex provides rich nutrient systems which make the Gulf of Mexico, blessed also with warm waters and shallow depths, the most productive fishing region of the country. . . .
The coastal regions of Louisiana and Mississippi contain millions of acres suitable for outdoor recreation, with a number of state and federal recreation areas, and extensive beach shorelines (397 miles for Louisiana, and 100 miles for Mississippi). These serve millions . . .
Cross posted from Legal Planet.
A couple of key observations about the oil rig blowout, based on my work on disaster issues.
First, “human error” is a cop-out when you’re dealing with major technology. It’s not like human fallibility is a surprise. Training, good management, and smart design should be the responses, not whining after the fact that the workers weren’t perfect. Or, if human error is unavoidable and the outcome would be catastrophic, you’d better rethink the project.
Second, it’s probably true that this was a very unlikely way for an oil rig to go wrong, but that doesn’t mean much. Suppose this was an eight-thousand-year event at any given oil rig. That is, you’d expect to have such an accident at that rig once in eight thousand years, or to put it another way, the odds in any given year at any given rig are 1 in 8000. You could imagine that the engineers might have thought that was pretty darn safe. (And not just engineers: in the Benzene case, the Supreme Court expressed uncertainty about whether a 1 in 1000 risk — nearly ten times greater — was significant enough to worry about.)
A one in eight thousand year accident sounds very remote, but it’s actually a recipe for disaster. As it happens, there are over 800 manned U.S. rigs in the Gulf. So you’d expect an “eight-thousand-year accident” to happen somewhere in the Gulf about once every ten years. If you’re unwilling to live with anything more than a 1% chance per decade that this kind of accident will happen in the Gulf, you need to get the annual odds at any given rig down to 1/800,000!
Full textCross-posted from Legal Planet.
Libertarians are, of course, deeply suspicious of government regulation. This may lead to a reflexive rejection of climate change mitigation. But Jonathan Adler, who provides a refreshingly distinctive view of environmental law from the Right, argues otherwise. In a forthcoming article (only the abstract is available on SSRN), he contends that libertarians are making a mistake in opposing climate mitigation:
[E]ven if anthropogenic climate change is decidedly less than catastrophic – indeed, even if it net beneficial to the globe as whole – human-induced climate change is likely to contribute to environmental changes that violate traditional conceptions of property rights. Viewed globally, the actions of some countries – primarily developed nations (such as the United States) and those nations that are industrializing most rapidly (such as China and India) – are likely to increase environmental harms suffered by less developed nations – nations that have not (as of yet) made any significant contribution to global climate change. . . . As a consequence, this paper suggests a complete rethinking of the conventional conservative and libertarian approach to climate change.
Adler’s argument seems unanswerable to me. Carbon emitters are causing harm to the property rights of others — for instance, through sea level rise that will directly deprive owners of portions of their land. People who really care about property rights should worry a lot about climate change. This doesn’t mean that they should necessary favor any particular approach to mitigation — Adler, for instance, favors heavy investments in developing new energy technologies. Yet, to favor inaction is inconsistent with libertarian principles.
Full textCross-posted from Legal Planet.
When I sat down to write this blog posting, I started by going through my environmental law casebook and noting down the cases in which Justice Stevens had written the majority opinion or a major dissent. When I got done, I was startled by the central role Justice Stevens had played in creating modern environmental law.
I’ll explain that central role in a minute, but first, why I was startled? Two reasons. First, Justice Stevens still retains some of the “brilliant maverick” reputation that he gained in his first year on the Court. That is, someone with a lot of sharp insights but no overall theme. Second, so far as I know, he has no particular passion for environmental law as such. His life before he became a judge never included environmental law, and so far as I know he has no special attachment to the outdoors.
Here are some examples of key environmental law opinions by Justice Stevens (not all of them on the side of the environmental angels):
Full textCross-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.
Today’s decision in Citizens United was something of a foregone conclusion. Still, it was a bit breathtaking. The Court was obviously poised to strike down the latest Congressional restrictions on corporate political expenditures. But the Court went further and struck down even restrictions that had been upheld thirty years ago. Seldom has a majority been so eager to reach out, address a question that wasn’t presented by the parties and overrule a bevy of prior decisions. The term “judicial activism” is overused but seems entirely appropriate here.
In the end, the Court just doesn’t see any real reason for campaign finance restrictions. It may be willing to tolerate some token restrictions in the name of precedent, but basically, it views economic influence over the political process as altogether natural and appropriate.
Full textRob Stavins has a good, concise overview of the session and the outcome on the Belfer Center website. Not as negative as some other observers, he highlights the extraordinary procecess that resulted in the Copenhagen Accord:
Full textIt is virtually unprecedented in international negotiations for heads of government (or heads of state) to be directly engaged in, let alone lead, negotiations, but that is what transpired in Copenhagen. Although the outcome is less than many people had hoped for, and is less than some people may have expected when the Copenhagen conference commenced, it is surely better – much better – than what most people anticipated just three days earlier, when the talks were hopelessly deadlocked.