Category: Environmental Law

1

Suing the EPA to Act

AirPollutionSource.jpgSeveral states including California and a block of states in the Northeast are preparing to sue the EPA to act. The issue is the EPA’s delay in granting waivers so that states can use their power under the Clean Air Act to regulate automobile emissions. California has been waiting two years for the waiver. The idea is to ensure that the agency acts, but it appears that the agency could rule that the state action is not authorized. As David Doniger, an attorney for the National Resources Defense Council, put it “The real issue is, will [the EPA’s administrator] block the states or let the states go forward?” In addition, a group of 10 states are issuing regulations regarding power plants under a Regional Greenhouse Gas Initiative. New York is part of that group. Its regulations are to take effect next year. That strategy helps wind and solar power producers and will make it harder for coal-based producers. The Times article noted that the largest investor-owned energy producer in New York backs the idea and does not operate coal plants in the state. In contrast the Independent Power Producers of New York, a trade group that includes coal-based power producers, opposes the state regulations. This quote from the group’s CEO is interesting for its use of fear and the idea that some other state would gain from the regulations.

“We don’t want to put more burden on the rate payers of New York, and the last thing I would think this governor wants to do is send the message that investment should go in other states,” said Gavin J. Donohue, the group’s chief executive. “You can build plants in other states and send the electricity back into New York.”

If one wanted to study a simple way to try and hit the people this quote offers a decent, albeit transparent, example. First claim that costs will go up for individuals. That may be true, but the long-term as opposed to short-term cost question is lost in this framing not to mention that these are elected officials who just might have accounted for the perception of near-term rate increases. Second, indicate that investment will flee. Sure, coal-based and other methods of power production that generate greenhouse gases may leave. Then again, those companies interested in areas favorable to other energy production may rush in and invest more. Furthermore, they will have to build new plants just to be able to offer their energy; that may require investment. Third, suggest that one’s business is impervious because there is always a market and others will take in the producers only to allow them to sell back to New York. This last point raises an issue of whether some states lack the ability, will, or interest to stop the coal producers and thus they will allow the energy producers to generate negative effects in any event. If so, then the argument seems to be let us produce in your state and at least get the investment benefit, because we will pollute elsewhere, further global warming, and still sell our energy so nyah (imagine a tongue sticking out here). It is unlikely that the last analysis is exactly what the group wanted to say, but it seems to be a possible interpretation.

Last, I am not an environmental law person so any thoughts about the issue from the regulation to the implications of suing the EPA to act to the negative externality issues in this context are appreciated.

Hat Tip: Slashdot

(Image Source: Wikicommons)

Charismatic Mini-Fauna

Anyone interested in the Endangered Species Act might enjoy reading D.T. Max’s story on Squirrel Wars in England. The gray squirrel is rapidly displacing the red squirrel because it carries a virus–squirrelpox–to which it is immune (but which kills the reds in a gruesome manner). Given the virulence of squirrelpox, I’m sympathetic with a quarantine effort, but some members of the House of Lords believe something more is at stake:

Lady Saltoun of Abernethy, the 21st to hold that title in Scotland, [has] point[ed] out the inherent superiority of the red over the gray squirrel: “Red squirrels,” she said, “are rather like quiet, well-behaved people who do not make a nuisance or an exhibition of themselves or commit crimes and so do not get themselves into the papers in the vulgar way gray squirrels do.”

And who brought these vulgarians to England’s green and pleasant land? The “first gray squirrels came to Britain to amuse the rich, probably in the early 19th century,” having been imported from America. As Max quotes one Oxford squirrel authority, “I know of more than one patriotic Englishman who has been embittered against the whole American nation on account of the presence of their squirrels in his garden.”

1

Saving the Earth, 24 Hours at a Time

Bauer.bmpThe New Republic, a serious magazine for right thinking people not noted for its humor, has a very funny article up on their website that confirms all of your suspicions about the possibilities of combining Jack Bauer, Al Gore, environmentalist jokes, and a Simpson’s writer It begins:

EPISODE 1: 12:00 AM – 1:00 AM

Int. CTU – day

JACK BAUER talks to JANIS GOLD.

JANIS GOLD

Our source tells us that the terrorists’ plan is blow up Broward Dam. This would create mass flooding, cut power to the entire state, and destroy the habitat of the tidewater goby.

JACK BAUER

Dammit! Without that goby, what will our local heron population eat?

JANIS GOLD

Try not to think about that.

JACK BAUER

I can’t help it! Every link in the food chain matters!

Jack punches his hand through a wall.

And so on. I cried during the Al Gore part…

5

Carbon Offsets, Contract, and Complicity

CarbonEmissions.jpgThe Washington Post ran a front page story earlier this week on the wild and unregulated world of carbon offset markets. The basic idea is that one purchases some off set — either in the form of technological development or contracts not to emit — for one’s own carbon emissions so that one’s over all carbon footprint is zero. This is just the sort of environmentalism that makes my free-market-contracts-prof’s heart go pitter patter. The regulators, however, are now snooping around. As The Post reports:

Critics say that offset sellers usually have good motives. But the market is confusing enough that, this month, the Federal Trade Commission said it would look into whether consumers are being adequately protected.

“It’s just like the Wild West,” said Frank O’Donnell of the group Clean Air Watch. “There are no controls, no standards.”

Having grown-up in the West, I object to “Wild West” as a term of regulatory derision, but it strikes me that there is a deeper problem here, namely what exactly is it that a person is trying to get when they do a carbon offset.

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The Admin Law Game

There’s a new kind of computer gaming being developed, and “fun” isn’t exactly the point:

[Games] created by Bogost’s development studio, Persuasive Games, invite us to be ruthlessly greedy, helplessly incompetent, and breathtakingly rude. The goal of Airport Security, for example, is to relieve infuriated passengers of prohibited items in accordance with continuously changing carry-on rules. In Bacteria Salad, players grow veggies for profit and try to avoid poisoning too many people. And in last year’s Disaffected!, we assume the role of a Kinko’s employee struggling to deliver print orders as lazy coworkers shuffle papers into the wrong stacks.

I wonder if they modeled the airport game on Dan’s action figures? Less bleak scenarios are also in the works.

These innovations remind me of the “game-like” aspects of administrative law: how do you navigate a labyrinthine agency to advance your client’s interests? The “game design” in Bacteria Salad has to include classic modalities in influencing human behavior: markets, common law, regulation, or norms. As Yochai Benkler notes, games themselves are also creating social relations: for the designer, “the interesting questions are, which approach will better foster creative autonomy, and create a more effective social network.”

The recent Washington Post stories on Dick Cheney’s influence on sub-cabinet level appointees also reminded me of “god mode” in games. You may think the rules of a given agency are set–and legally, they may well be. But the political aspect of administrative law means that an executive branch higher-up can get a lot done outside normal channels. Consider the case of Klamath river fish:

Law and science seemed to be on the side of the fish. Then the vice president stepped in. First Cheney looked for a way around the [Engdangered Species Act], aides said. Next he set in motion a process to challenge the science protecting the fish, according to a former Oregon congressman who lobbied for the farmers. Because of Cheney’s intervention, the government reversed itself and let the water flow in time to save the 2002 growing season, declaring that there was no threat to the fish. What followed was the largest fish kill the West had ever seen, with tens of thousands of salmon rotting on the banks of the Klamath River.

The story of admin is often the story of how politics, law, and science collide. The unpredictability of these “rock, scissors, paper” conflicts makes the subject matter all the more game-like.

“The Largest NGO in the World is in DC”

So claims Paul Hawken, referring to the current administration’s laissez-faire approach to environmental regulation. His new book suggests that thousands of smaller groups are going to have to take the government’s place, offering small-scale solutions for sustainability. Hawken’s remedy reminds me of the “new governance” theory that’s been hot in admin circles for the past two decades. NG emphasizes flexible and fluid relationships between public and private bodies to develop pragmatic policy responses to intractable problems.

I find a lot to admire in this work, but a recent interview with corporate environmental evangelist Ray Anderson highlights some limits to the approach:

Mr. Anderson is . . . proud to say that as a member of an advisory council at Georgia Tech, he persuaded the institution to modify its mission statement to proclaim the goal of “working for a sustainable society.” But there is a lot that even business cannot accomplish on its own, he said. For example, he said, the tax code is “perverse,” in that it puts heavy taxes on good things, like income and capital, and leaves a lot of bad things, like energy use, relatively unscathed. And economists typically underestimate the true cost of doing business because they exclude “externalities,” like environmental damage from pollution.

Anderson’s story of building a sustainable carpet manufacturer was a major highlight of the film The Corporation, and he makes a lot of sense here. As Carol Rose pointed out in The Several Futures of Property, some authoritative institution has to set some initial allocation of “rights to pollute,” etc. And someone has to come up with an agreed way of measuring externalities, a notoriously difficult process. If, as Ed Glaeser proposes, “American and European carbon taxes [should] provide funding that could be used to reward poorer countries for cutting emissions,” some government has to impose the tax.

Of course, the NG theorists realize these things. I just bring them up to chasten any optimism about “small-scale” solutions making the crucial contribution to solving environmental dilemmas. It’s no wonder why the “average building in the U.S. uses roughly a third more energy than its German counterpart;” our “federal government has yet to establish universal efficiency standards for buildings.”

6

Hypocrisy and Carbon Policy

hypocrite.jpgSteve Bainbridge, writing about whether former VP Gore should take the so-called Gore Pledge, concludes:

[M]aybe the answer is not to demand that Hollywood elites cut their consumption, but simply to insist that they document their purchase of carbon off-sets before hectoring the rest of us?

As I’ve written before, I think that the hypocrisy claim is a weak argument against political innovation. I have particular doubts here: why should Gore’s ability to speak on matters of public concern be contingent on his living a carbon-neutral life?

One argument is that the rich will work to adopt distributively unfair standards: Al Gore’s lifestyle will not change no matter what the price of gas, and his preferences for a higher gas tax are therefore not to be taken seriously. This argument sounds quite a bit like that for reintroducing the draft, though the consequences of allowing Gore to speak seem significantly less exigent than sending troops off to war. It also sounds like a classic moral hazard argument: because Gore, and politicians, are “insured” against the full effects of their proposals, they behave (or try to persuade others to behave) in inefficient ways.

But political speech is not like political action, and it isn’t at all like consumption of goods. First, and most significantly, there is a long constitutional tradition holding that political speech should receive special protections for both deontological and utilitarian reasons. (I’m not saying that anyone thinks that Gore should be censored by the government for speaking. The point is merely to recognize that the “hush” impulse is directed at speech that is constitutionally important). Second, I have doubts that individuals’ political speech is particularly susceptible to relatively minor cost fluctuations. This is an empirical intuition, so I could be wrong, but I bet that if you made 10,000 environmental activists eat their words, so to speak, only a few would really change their speech to make it less personally costly. If that is true, there seems to be little reason to require a behavioral change to precede speech, just as it seems ultimately foolish to require politicians to be personally pro-life before taking pro-life positions in public, or low-tax activists to be personally charitable before suggesting that the government should get out of the redistribution business and leave it to private parties. Public arguments should stand on public merits, not those of their originators.

6

A Big Day for Enviros

Hi everyone! I’m psyched to be able to blog here, and to start on what to me is a really great legal day.

So how about that Supreme Court? And its decision in the two Clean Air Act cases today? The blogosphere’s been all over this already, but I have to say, as someone whose first Supreme Court amicus briefs (team-written with some very wonderful colleagues, I should say) were in these two cases, today was incredibly satisfying.[*] (Or, in more cas-speak: OMGWOW.)

One thing I’ve been trying to emphasize in my classes, though (perhaps to the frustration of my students) is that litigation is not the end all and be all. And these cases illustrate that. The Supreme Court’s decision in the global warming case, for example, is merely a remand back to the EPA to consider the petitioners’ request for a rulemaking–albeit one taking into account the Supreme Court’s guidance in Mass v. EPA. The EPA, therefore, could conceivably still reach the same decision on remand, albeit with more legally defensible reasoning. The PSD (Prevention of Significant Deterioration) case involving Duke Energy also involves a remand, and allows the lower court, on remand, to consider whether EPA’s allegedly inconsistent positions on this issue is “retroactively targeting twenty years of accepted practice.”

My anticipatory frustration is that although what happens next is as much a part of the whole story as the Supreme Court proceedings, there will be somewhat less press coverage of those later administrative (and political) proceedings. This is not to blame the press, really. I mean, it’s reflective of legal teaching, even, where the focus is more on the individual court “cases,” and less on the overall outcome (regardless of where the outcome “arises”). Hell, I see this in administrative law, where students are a lot more excited about reading current individual cases, than reading draft rulemakings and the comments made about them.

So I guess this is just a rambly way of getting to a question: how does one effectively “teach” the interaction between individual case decisions, administrative decisions, and broader societal politics? I don’t want to make my classes into any sort of poli sci/public administration class, and certainly couldn’t do effectively even if I wanted to. Yet I also believe that if we’re training students to advocate as effectively as possible for their clients, then we as educators should give them practice in thinking beyond strategizing about individual cases.

[*] A short recap: In Massachusetts v. EPA, the Supreme Court held that the EPA did have the authority to regulate greenhouse gases, and required it to re-review the plaintiffs’ request for a rulemaking. According to the Supreme Court, “Under the Act’s clear terms, EPA can avoid promulgating regulations only if it determines that greenhouse gases do not contribute to climate change or if it provides some reasonable explanation as to why it cannot or will not exercise its discretion to determine whether they do.” And in Environmental Defense Fund v. Duke Energy, the Supreme Court upheld the EPA’s regulations requiring permits for changes in power plants that lead to an annual increase in emissions, rejecting Duke Energy’s argument that permits can only be required when the changes lead to an increase in the hourly rate of emissions.