Cross-posted from Triple Crisis.
Climate legislation, even in its most modest and repeatedly compromised variety, failed last year. And there won’t be a second chance with anything like the current Congress. What caused this momentous failure?
Broadly speaking, there are two rival stories. It could be due to the strength of opposing or inertial forces: well-funded lobbying by fossil fuel industries, biased coverage by increasingly right-wing media, the growth of the “Tea Party” subculture and its rejection of science, dysfunctional institutions such as the U.S. Senate with its filibuster rules, and the low priority given to climate legislation by the Obama administration.
Or it could be because environmentalists screwed up and shot themselves in the foot.
If you had to guess, which of these stories sounds to you like it would get more media attention? You’re right, that’s what everyone else thought, too. Gridlock in U.S. politics, and its effects on the fate of the earth, is such boring old news; the notion that misguided liberals have only themselves to blame sounds so clever and different.
This ecological niche has not gone unfilled. The Breakthrough Institute, whose motto could be “clever and different since 2005,” has repeatedly informed us that the death of environmentalism is the fault of environmentalists. Now “Climate Shift,” by American University political scientist Matthew Nisbet, claims that there was no media bias on climate issues in the last few years, and that advocates of climate legislation outspent their opponents, but still lost.
Full textStates are seeking EPA approval to meet climate change-related standards through programs that the states themselves have pioneered. Greenwire reported last month that California, New York and Minnesota, as well as about a dozen power companies and advocacy groups, are urging U.S. EPA to let states meet the forthcoming New Source Performance Standards under the Clean Air Act through the Regional Greenhouse Gas Initiative, California’s forthcoming greenhouse gas cap and trade plan, as well as through clean or renewable portfolio standards (RPS).
This development could address an odd anomaly: while several major state-led programs to cap greenhouse gases are regional in nature (the Regional Greenhouse Gas Initiative, the Midwest Accord and the Western Climate Initiative), thus far the most powerful engine for the growth of renewable power – renewable portfolio standards, which require utilities to obtain a certain share of their energy from renewable sources – are primarily state-based. This should change. States would be better off employing the regional approach in their renewable energy incentive programs.
By mandating a certain percentage of renewable power in a utility’s energy portfolio, these laws enact a rate-payer subsidy for renewable power. RPSs have proven politically popular and extremely effective in growing the market for renewable energy. At last count, 26 states have adopted an RPS, another six have adopted a renewable portfolio goal and another five states have adopted an alternative energy standard. The Union of Concerned Scientists estimates that, by 2025, state standards will provide support for 76,750 megawatts (MW) of new renewable power. This will not only reduce conventional pollutants and help jump-start a greener economy, but is expected to reduce annual carbon dioxide emissions by more than 183 million metric tons, or the equivalent of taking 30 million cars off the road.
Full textThe Supreme Court arguments in American Electric Power Company v. Connecticut on Tuesday raised profound issues about the respective role of the courts and administrative agencies in controlling greenhouse gas emissions from stationary sources, emissions that remain uncontrolled notwithstanding their significant climate impacts. As my CPR colleague Doug Kysar has noted, at times the Court appeared reluctant to embrace industry’s political question and prudential standing arguments, arguments that would undermine the courts’ traditional common law powers. If the Court rejects these jurisdictional arguments, the central issue would be whether EPA’s GHG regulatory actions under the Clean Air Act have “displaced” the federal common law of interstate nuisance.
If displacement is the critical issue, did the Court ask the right questions? For example, Justices Kagan, Ginsburg, and Breyer addressed the issue of institutional competence. Directly and indirectly, their comments suggested that the plaintiff states were asking the courts to undertake a regulatory task more suited to administrative agencies. If the test were based on institutional competence, the answer would be easy: administrative agencies have greater expertise, allow for greater public input, and (at least in theory), provide a more comprehensive approach.
But to the extent the legal question is whether the Clean Air Act has displaced the federal common law, relative institutional competence isn’t the issue. The issue is whether the administrative agency is, in fact, undertaking its regulatory function. If it’s not, then the default is the federal common law, however awkward it might be relative to the regulatory approach. That courts might not be ideally suited for the task does not relate to the question of whether the common law has been displaced.
Full textCross-posted from ACSblog.
In one of the most, er, hotly anticipated cases of its term, the Supreme Court yesterday heard arguments in the climate change nuisance suit of Connecticut v. American Electric Power. From the beginning of this litigation, pundits have questioned the plaintiffs’ decision to seek injunctive relief gradually abating the defendants’ greenhouse gas emissions. To critics, this form of relief – as opposed to, say, monetary damages – seems to highlight the complex and value-laden aspects of climate change as a policy problem, making judges more likely to dismiss the suit as lying beyond the ken of the judicial branch.
Tuesday's argument confirmed the pundits’ view, as even reliably liberal justices like Ruth Bader Ginsburg greeted the plaintiffs’ claims with palpable skepticism. Justice Ginsburg’s money quote, which is being cited around the blogosphere, came when she told the plaintiffs that their prayer for relief “sounds like the kind of thing EPA does.” Justice Kagan quickly piled on: “It sounds like the paradigmatic thing that administrative agencies do rather than courts.” Justice Breyer, ever the policy wonk, wondered aloud whether “the courts [can] set a tax” because, in his words, from “what I get from reading, these [carbon taxes] might be the best way to deal with the problem.” (Answer: Courts set implicit harm taxes every day in the form of monetary tort awards. Bonus Answer: The Clean Air Act might well be a great way to deal with the problem, as the benefits of emissions permits have been oversold and the likelihood of a carbon tax passing Congress is nil). For her part, Justice Sotomayor was nowhere to be found since she had recused herself from the case, even though she would have been within ethical guidelines to stay involved.
Full textIn politics, repeating something over and over again can sometimes make it stick, whether it's true or not. From Reagan’s welfare queens, to the specter of “socialized” medicine leading to imminent communist takeover, these sorts of myths often start on the far right but then move surprisingly far to the center. And as the EPA has begun to move forward with regulating greenhouse gas emissions under the Clean Air Act, we've seen one of these myths begin to take shape. This time it’s the notion that the Clean Air Act is a bad tool for addressing climate change.
At the heart of it is this: a lot of regulated industries and their allies don't want any limits at all on how much carbon dioxide they can release into the atmosphere. But the Clean Air Act says that EPA must regulate any air pollutant that may reasonably be anticipated to endanger the public health or welfare and defines “air pollutant” very broadly. In 2007, the Supreme Court held that greenhouse gases are “air pollutants” under the Act, and ordered EPA to make a scientific judgment under Section 202 about whether the greenhouse gases emitted by cars and trucks “may reasonably be anticipated to endanger public health or welfare.” Making repeated reference to reports from the National Research Council and the Intergovernmental Panel on Climate Change finding conclusive evidence of human-caused global warming, the Supreme Court made clear that, in light of the scientific evidence, it would be difficult for EPA to find no endangerment.
Industry allies have taken various shots at EPA's authority to regulate greenhouse gasses, but the arguments range from incorrect to absurd. Fellow Member Scholar Dan Farber and I have just written a memo, Six Myths About Climate Change and the Clean Air Act, addressing these topics. In the short paper we respond to six sadly common claims:
The EPA can and will defend its authority in the courts, but that's not going to stop opponents from trying to attack it in the court of public opinion with myths like these. Our memo lays out how these claims are myths, and how the EPA has the law on its side.
Full textCross-posted from Real Climate Economics.
True or false: Risks of a climate catastrophe can be ignored, even as temperatures rise? The economic impact of climate change is no greater than the increased cost of air conditioning in a warmer future? The ideal temperature for agriculture could be 17 degrees C above historical levels?
All true, according to the increasingly popular FUND model of climate economics. It is one of three models used by the federal government’s Interagency Working Group to estimate the “social cost of carbon” – that is, the monetary value of the long-term damages done by greenhouse gas emissions. According to FUND, as used by the Working Group, the social cost of carbon is a mere $6 per ton of CO2. That translates into $0.06 per gallon of gasoline. Do you believe that a tax of $0.06 per gallon at the gas pump (and equivalent taxes on other fossil fuels) would solve the climate problem and pay for all future climate damages?
I didn’t believe it, either. But the FUND model is growing in acceptance as a standard for evaluation of climate economics. To explain the model’s apparent dismissal of potential harm, I undertook a study of the inner workings of FUND (with the help of an expert in the relevant software language) for E3 Network. Having looked under the hood, I’d say the model needs to be towed back to the shop for a major overhaul.
Full texta(broad) perspective
While discussion of adapting to climate change is finally beginning to take off in the United States, other governments from Bangladesh to the Netherlands have already laid the foundation to develop concrete policies and implement strategies to address the impacts. Last week, a report released by the UK’s Environment Agency specifically identified relocation of coldwater fish as a possible direct response to the effects of climate change. We're going to be hearing a lot more in the coming years about assisted migration like this—the intentional relocation of flora or fauna to a new region as a climate change impacts occur.
As a climate change adaptation strategy, assisted migration engenders significant controversy among scientists and policymakers alike. The clear benefit, and intended purpose, is to prevent the extinction of a species that can no longer survive in a changed climate. However, assisted migration raises serious questions about which species to relocate and to where they should be moved. The relocated species are effectively invasive species, which may introduce new diseases, pests, or other unintended consequences. Along with habitat degradation, invasive species are the biggest threat to biodiversity and endangered species. In addition, relocated species may not survive in isolation, so simply moving one targeted species may not ensure its survival.
In the UK, the Environment Agency is "exploring" moving thousands of vendace and schelly, both freshwater white fish, from the northern Lake District in England to cooler waters in Scotland. While still in the planning stages, this strategy represents a remarkably specific and dramatic response to climate change. As with many countries, climate change in the UK is expected to cause an increase in the average temperature and reduced summer rainfall, which lead to higher water temperatures and reduced river flows. Coldwater and migratory fish are particularly sensitive to these changes because increased temperatures and reduced flow affect the breeding and development of these fish. For example, the Environment Agency has linked the alarming decline of eel populations over the past three decades to climate change and rising water temperatures.
Full textThe report of the President’s Gulf Oil Spill Commission answered some questions and raised others. But one thing still puzzles: Why didn’t the Gulf Oil Spill start a national conversation about our dependence on oil development and the need for renewable energy?
At first, it appeared it might, but the focus quickly turned to reforming the regulatory agency with oversight for the spill and fixing the technical failures that caused the well blowout in the first place. Both were important areas of inquiry, but the focus on oversight failures and technological quick fixes allowed us to avoid more fundamental questions that had to do with our failure to make the investments necessary to create a future grounded in renewable energy.
We know from history that a larger policy conversation might well have been triggered. In the mid-1970s, Love Canal triggered such a national reexamination, and indeed the name remains a household term today, emblematic of a transformative moment in environmental law and in the nation’s attitude toward chemicals and waste.
So think about the scale of Love Canal versus the scale of the BP oil spill. Love Canal involved 36 square blocks, 21,000 tons of toxic waste, and a few hundred homes. It’s not clear whether any deaths were specifically caused by the toxic waste, although it’s certainly likely that some illnesses or deaths were, and that similar waste dumping elsewhere took lives.
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 textOn Dec. 30, the EPA announced that it was partially disapproving the Texas State Implementation Plan (SIP) that would not allow it to issue PSD permits for greenhouse gases that were now “subject to regulation.” Continuing its resistance to all things EPA, Texas filed a request for an emergency stay of the disapproval in the DC Circuit. This follows Texas’s request for an emergency stay on the rulemaking which declared GHGs subject to regulation under PSD in the DC Circuit, and later in the Fifth Circuit, both of which were denied.
This time, however, perhaps because it was a holiday, the DC Circuit (without ruling on the merits) entered a temporary stay until the issue could be considered more fully today, January 6. Texas and its supporters are arguing that the EPA should get reversed on this one because it might have violated procedural notice and comment requirements under the CAA in acting so quickly. But this is not the case, as the EPA has followed all relevant procedural requirements necessary for implementing a partial Federal Implementation Plan (FIP) in the face of the inadequacy’s of Texas State Implementation Plan (SIP) as it applies to greenhouse gases now “subject to regulation.”
The modern Clean Air Act is a federal creation based on Congress’s commerce clause power. The federal government’s ability to preempt state action in the area has been upheld on several occasions. The Clean Air Act does have a dual federalism model which recognizes that the states can have a role to play in implementation. Specifically, the CAA allows states to have an opportunity to implement CAA requirements within the state’s borders (CAA Sec. 110).
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