Today, EPA made its long-expected official finding: climate change is real, and we human beings are the cause.
More than two years after the Supreme Court ordered EPA to address the issue, EPA has now formally ruled that greenhouse gases cause climate change that endangers human health or welfare. EPA also found that motor vehicles contribute significantly to levels of greenhouse gases. These findings trigger regulation under the Clean Air Act for motor vehicles. Similar findings are likely in the near future under a different section of the statute relating to stationary sources such as factories.
This development has been inevitable since the Supreme Court ruled that EPA must make a decision based solely on the scientific evidence. Despite all the recent brouhaha about hacked emails, the scientific evidence on climate change is just as solid as the evidence behind DNA identification, the ill effects of cholesterol, the dangers of smoking cigarettes, and a host of other scientific knowledge that we all take for granted. If there were any tenable scientific evidence going the other way, the Bush Administration would have made its own findings in order to block regulation. They knew they couldn’t do that, so they just stalled as long as possible and ran out the clock.
No doubt there will be efforts to challenge the EPA finding in court. But the scientific evidence is overwhelming. In addition, the Supreme Court itself found enough evidence of harm from climate change to create standing for the state of Massachusetts in the original ruling that lead to today’s action. It would take a very bold lower court judge to even think about ruling the other way.
Nobody thinks that the Clean Air Act is the ideal way to address climate change. It would be much better for the Senate to join the House to pass new legislation. I hope that will happen soon. But let’s face it, the Senate has too often become the place where public policy goes to die. Congressional deadlock creates a vacuum that other actors – the Executive Branch, the courts, and state governments – rush to fill.
In short, at this point, it is no longer a question whether federal law restricts carbon emissions. The only question is which federal law: the Clean Air Act or new legislation aimed specifically at climate change.
Full textCross-posted from Legal Planet.
Apparently, substantially safer designs for nuclear reactors are now available. But the safe storage and disposal of nuclear waste is a significant challenge and a yet unresolved problem. Presently, waste is stored at over a hundred facilities across the country, within seventy-five miles of the homes of 161 million people.
The major problem is the longevity of the waste – plutonium will be dangerous for 250,000 years. Although we may be able to model the geologic and physical processes at some geographic sites over such time periods, no one seems to have a clue about how to model possible changes in human behavior and society. Thus, by producing nuclear waste, we are leaving our descendants with a dangerous problem, while having no real idea how competent they will be to handle it. Assuming we care about their welfare, we seem to be taking a serious gamble at their expense.
In the short run, it is not feasible to eliminate existing nuclear facilities. The tougher problem is the basic question of whether to continue producing substantial quantities of waste in the medium to long-run.
Full textCross-posted from Legal Planet.
Both the NY Times and the Washington Post had lead stories [Wednesday] on the politics of climate change legislation. The Post’s story centered on the increasing focus of the debate on the economic impact of climate legislation and on the difficulty of establishing the facts:
In anticipation, groups on the left and the right — as well as government outfits such as the Environmental Protection Agency and Congressional Budget Office — have issued a spate of analyses projecting the costs and, sometimes, the benefits of congressional climate legislation. But the fine print in many of these projections reveals that they are based on assumptions that could easily turn out otherwise, meaning lawmakers will have to take a leap of faith about how a cap-and-trade program — which would control pollution by providing economic incentives to reduce emissions — might affect the economy.
It seems to me that the “high cost” estimates are implausible on political rather than economic grounds — if the legislation turns out to cause large unemployment or price spikes for consumers, it will be speedily modified. In addition, history shows that all environmental legislation has been accompanied by similar alarmist warnings, which haven’t come to pass.
The Times lead with a story about the Obama Administration’s increased efforts to advance legislation. Opponents complain about the cost of the legislation, but also that the bill is so complex and that Congress is being asked to acted too quickly. (If this were not a serious academic blog, I would had “haha” or a smiley face at this point.)
I have some sympathy with complaints that the bill is too complex and needs more study — but only a limited amount. The bill is so complex largely because of the need to accommodate the same parochial interests that are now whining about its complexity, and we would never pass any legislation on any subject if waited until we had finished studying the problem.
There is something to be said for the approach that California took with AB 32 — identify the goal, provide a bit of guidance about means, and turn the details over to an administrative agency. But I don’t see anyone in Congress advocating that way of cutting the Gordian knot.
It’s very hard to gauge the legislative situation from the outside. How many of the complaints are real, and how many are simply bargaining ploys? No way of knowing, really. But I have the sense that much of what we are hearing in public is only loosely connected with whatever serious deal-making is takng place behind the scenes.
Full textCross-posted from Legal Planet.
Since opponents can’t seem to come up with any new arguments against climate change legislation, they seem determined to recycle the old, discredited ones. Here’s Tuesday’s example, straight from the GOP press release:
Rep. Jim Sensenbrenner, R-Wis., and Rep. Darrell Issa, R-Calif, today urged the Environmental Protection Agency to include several relevant studies in its decision-making record for a major finding on climate policy after it was made public that a senior EPA official suppressed the scientific evidence for apparently political reasons.
“I’m sure it was very inconvenient for the EPA to consider a study that contradicted the findings it wanted to reach,” said Rep. Sensenbrenner, the ranking Republican on the House Select Committee on Energy Independence and Global Warming. “ . . .
This is actually an old story, which has been debunked as many times as the urban myths about alligators in the sewers. (For example, take a look at this June posting in Grist.) But apparently Sensenbrenner and Issa don’t have anything better to do with their time than recycle discredited stories.
As EPA made clear months ago, the individual in question is in an economist, but his comments weren’t about economics, they were about climate science — a subject on which he has as much professional expertise as my cat. His professional expertise as an economist was completely irrelevant as a matter of law – EPA isn’t allowed to consider cost at all in determining whether a pollutant endangers human health. That’s a scientific issue, not an economic one. The likelihood that he would contribute anything worthwhile to EPA’s findings about climate science was approximately zero anyway, and he might well have been reprimanded for wasting time rather than sticking to his job.
Notwithstanding his lack of any relevant expertise, however, EPA was more than generous in providing him a forum. His comments were submitted to the EPA endangerment team; and his manager allowed his general views on the subject of climate change to be heard and considered inside and outside the EPA and presented at conferences and at an agency seminar. In short, there’s just nothing here at all except EPA leaning over backwards to be tolerant toward an employee’s amateur hobbyhorse. Finally, his manager had enough of him wasting time and told him to get back to his day job.
If there’s a story here, it seems to be EPA’s tolerance of internal dissent, even when the dissenter has little or no credibility.
Full textThis item cross-posted by permission from Legal Planet.
The White House is considering a new executive order to limit floodplain development. The proposal covers roughly the same federal licensing, project, and funding decisions as NEPA. The heart of the proposal is section 4, which unlike NEPA imposes a substantive requirement (preventing or mitigating floodplain development.) The proposed language is after the jump. This is a very constructive step — we can’t keep putting people and infrastructure in harm’s way, nor can we allow development that increases flood risks elsewhere.
The Association of State Flood Plains Managers has a very helpful website. Information about flood issues can also be found in Berkeley’s archive on disasters and the law.
Full textThis item cross-posted by permission from Legal Planet.
Greenwire reports that one issue in the confirmation hearing may be a case involving climate change. The plaintiffs sued under the federal common law of nuisance for injunctive relief against public utilities for their carbon emissions. The case has now been pending before a panel including Judge Sotomayor for several years.
It’s definitely an interesting case. The district court held that the case presented a “political question” and hence was not justiciable. This was a somewhat peculiar application of the political question doctrine, which applies when a case lacks any legal standards (like the reasonableness of the period required to ratify a constitutional amendment), or the Constitution assigns an issue to another branch of government (like impeachment), or the court would be interfering with the conduct of foreign affairs (like deciding the date on which a war has ended). But courts hear nuisance cases all the time. The district judge argued that the scale of the climate change issue made this case different, but the Supreme Court has never said that the importance of a case made it a “political question” — and certainly didn’t think so in Bush v. Gore.
It seems unlikely that the Second Circuit will affirm on the basis of the political question doctrine, but there are many other issues in the case. Still, the long delay is peculiar.
What is likely to make this an unproductive topic for questioning is that Judge Sotomayor really can’t say anything about deliberations in a pending case. So there probably won’t be much to talk about.
Cross-posted by permission from Legal Planet.
In an opinion by Justice Kennedy, the Supreme Court decided two issues in this case, over a dissent by Justice Ginsburg. The first was whether the Clean Air Act gives authority to the United States Army Corps of Engineers, or instead to the Environmental Protection Agency (EPA), to issue a permit for the discharge of mining slurry. The second question was whether the Corps acted lawfully in issuing the permit. The Court held that the Corps was the appropriate agency to issue the permit and that the permit is lawful.
This case involved a federal permit for a mining operation. Over the life of the mine, Coeur Alaska intends to put 4.5 million tons of tailings in the lake. This will raise the lake bed 50 feet—to what is now the lake’s surface—and will increase the lake’s area from 23 to about 60 acres. The “tailings slurry” would contain concentrations of aluminum, copper, lead, and mercury. Over the life of the mine, roughly 4.5 million tons of solid tailings would enter the lake. It is undisputed that the discharge would kill all of the lake’s fish and nearly all of its other aquatic life. The Corps of Engineers issued a permit to Coeur Alaska, Inc. to discharge of slurry into a lake in Southeast Alaska.
Full textThe Congressional Budget Office recently issued its report on the Waxman-Markey bill. The Washington Times soon trumpeted: “CBO puts hefty price tag on emissions plan: Obama's cap-and-trade system seen costing $846 billion.”
This is quite misleading. Actually, the CBO report tells us virtually nothing about the economic costs of the bill or how much consumers will lose out of pocket. In fact, the way most people understand the idea of a budget deficit, it doesn’t really say much about that either. CBO’s analysis is based on some very technical accounting that may can easily be misinterpreted. In particular, CBO treats the issuance of free carbon allowances quite differently than most people would expect.
Full textThe first line of defense against climate regulation was that climate change didn’t exist. The next line of defense was that maybe it was real, but it wasn’t caused by humans. Now we’re up to the third line of defense: it does exist and it is caused by humans, but it’s too expensive to fix. For example, the Heritage Foundation estimates that Waxman-Markey would cost society a whopping seven trillion dollars by 2035.
These estimates fail to ask a critical question: Compared to what?
To begin with, the alternative to Waxman-Markey or other new legislation isn’t a regulation-free world. Instead, it’s a world in which a number of states like California are aggressively regulating greenhouse gas emissions – and more importantly, a world where the EPA is required by law to regulate greenhouse emissions under the Clean Air Act. There’s no reason at all to think that Waxman-Markey would be a less efficient tool than the Clean Air Act. Indeed, there’s every reason to think otherwise: the Clean Air Act is at best an awkward tool for regulating climate change and isn’t likely to coincide with the most efficient approaches.
Full textOn Sunday, John Boehner, the House Republican leader, explained his view of climate changeto George Stephanopoulos:
George, the idea that carbon dioxide is a carcinogen, that it's harmful to our environment is almost comical. Every time we exhale, we exhale carbon dioxide. Every cow in the world, uh, well, you know when they do what they do, you've got more carbon dioxide.
My first thought was that this was completely idiotic, making a childish argument that even George W. Bush would have scorned. The fact that some CO2 is normal and even necessary proves nothing about what happens when concentrations go beyond the normal level: salt is essential in small doses but you'd die of thirst drinking sea water. Even apart from the demonstration of abysmal ignorance of climate science, there's the fact that cows emit methane, not CO2, and that no one thinks CO2 is a carcinogen anyway.
My second thought, however, is that this is an outburst from someone who expects to lose on an issue and therefore sees no point in taking a responsible position. Maybe - just maybe - Boehner realizes that this train has already left the station.
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