This post was originally published on Legal Planet. Reprinted with permission.
Production and combustion of fossil fuels impose enormous costs on society, which the industry doesn't pay for. I want to talk about some options for using the tax system to change that.
One option, a tax on carbon dioxide emissions, gets the most attention but seems politically impossible. The closest we've ever come to a carbon tax is a limited fee on methane emissions under the new Inflation Reduction Act (IRA) law. A more promising alternative might be a clean-up tax on the fossil fuel industry.
If a carbon tax were politically feasible, there would be a lot to be said in its favor. Economists like carbon taxes better than regulations, and environmental justice advocates like them better than cap and trade. A carbon tax could cover the economy without the need for scores of regulations tailored to each industry. It wouldn't require placing bets on what zero-carbon technologies will win out. It would provide an incentive for cutting carbon emissions, with the byproduct of cutting air pollution everywhere. Unlike emission trading systems, they don't require designing and operating new markets. It could be designed to avoid regressive impacts …
This is the second in a two-part series on the implications of the historic climate and health spending package, which President Biden signed into law earlier this week. Read the first post here.
The Inflation Reduction Act (IRA) will subsidize our nation's clean energy revolution and have a positive impact on climate-driven economics, as noted in Part I of this series. That said, the IRA isn't flawless. Notably, it includes several subsidies for fossil fuels, which will be counterproductive as our nation works toward its climate goals.
Worse still, not all "carrots" for clean energy technologies are good, and the IRA includes a potentially bad one. Specifically, the IRA risks subsidizing the clean energy transition through perpetuating environmental injustice in how we obtain and use energy to fuel our economy.
It is well known that the fossil fuel industry was built in part by concentrating the costs …
This is the first in a two-part series on the implications of the historic climate and health spending package, which President Biden signed into law earlier this week. Read the second post here.
With the signature of President Joe Biden, the Inflation Reduction Act (IRA) now marks the most significant climate policy action the United States has ever taken. The defining feature of this law is that it seeks to wring carbon dioxide emissions out of the U.S. economy by relying heavily on policy "carrots," like subsidies, instead of policy "sticks," such as regulating the fossil fuel industry or attempting to capture the external costs of greenhouse gas emissions through carbon pricing.
In this regard, the new law represents a significant departure from past unsuccessful legislative efforts to tackle the climate crisis and, as we argue in Part I of this series, is a …
This op-ed was originally published in The Hill.
“Data drives policy, and the lack of data drives policy,” according to former Environmental Protection Agency (EPA) environmental justice official Mustafa Santiago Ali. This crucial insight succinctly encapsulates one of the fundamental disconnects between the Clean Air Act and environmental justice.
A bill pending in Congress called the Public Health Air Quality Act aims to bridge that divide by significantly enhancing our nation’s air pollution monitoring infrastructure and improving community access to monitoring data.
Lying at the core of the legislation is a concept called “information justice.” Information justice starts from the recognition that policy-relevant uncertainty is an inescapable feature of environmental decision-making. Agencies like the EPA simply will never have perfect information when deciding whether and how to address a particular pollution risk.
Critically, such uncertainty entails certain costs in the form of suboptimal regulatory policies. While …
This post was originally published on Legal Planet. Reprinted with permission.
What wetlands and waterbodies does the Clean Water Act protect? Congress failed to provide a clear answer when it passed the statute, and the issue has been a bone of contention ever since. The Biden administration is in the process of issuing a new regulation on the subject. Normally, you'd expect the Supreme Court to wait to jump in until then. Instead, the Court reached out to grab Sackett v. EPA, where landowners take a really extreme position on the subject. Not a good sign.
A little quick background: The term "navigable waters" traditionally meant water bodies that could be used for transportation. When it passed the Clean Water Act, Congress redefined the term to mean "waters of the United States." Everyone agrees that this term covers at least traditional navigable waters and wetlands on …
On July 27, I had the privilege of testifying at the North Carolina Utilities Commission (NCUC) public hearing regarding the Duke Energy Carbon Plan. The Asheville hearing was one of six forums designated for public witness testimony on the proposed decarbonization plan.
In 2019, North Carolina joined 34 other states investing in solar, wind, and other renewable resources when it passed its Clean Energy Power Plan, and, in 2021, when it passed House Bill 951, which commits to a 70 percent carbon reduction by 2030 and carbon neutrality by 2050. When Duke Energy, a major corporation with outsized influence over the state’s decarbonization plan, submitted its proposal to meet those goals, it failed to account for affordability and equity.
The company and NCUC have also not meaningfully engaged with low-wealth ratepayers in the process. These public hearings are intended to promote community engagement; however, the extent …
Last week, the Center for Progressive Reform joined 90 organizations in expressing strong support for the Environmental Justice for All Act (EJ for All Act) in a letter as the bill went before the House Committee on Natural Resources for markup.
The coalition, led by Coming Clean, a collaborative of environmental health and environmental justice experts, and the Environmental Justice Health Alliance (EJHA) for Chemical Policy Reform, urged committee members to advance this important legislation to the House floor. The bill, introduced by Reps. Raúl M. Grijalva of Arizona and Donald McEachin of Virginia, is the most significant effort by the federal government to address generations of environmental racism.
Although the bill passed in committee last Tuesday by a 26 to 21 vote, its future is unclear. Before the bill is sent to the House floor, it must overcome concerns that it has jurisdictional overlap with the …
This op-ed was originally published in The Hill, and the full version is available on the paper's website. It was published before Sens. Joe Manchin and Chuck Schumer announced their deal on the Inflation Reduction Act.
The Biden administration’s path forward on climate change — as the widely deployed metaphor goes — has become more difficult with the U.S. Supreme Court’s recent decision in West Virginia vs. Environmental Protection Agency (EPA) and Sen. Joe Manchin’s (D-W.Va.) apparent veto of a reconciliation package that contains climate measures. If the Biden administration is to successfully navigate that path — and it must if we are to avert the worst consequences of the climate crisis — the president will need to abandon the “compass” that his predecessors have relied on for decades to guide their policy agenda: Executive Order 12866: Regulatory Planning and Review.
First issued in 1994, the …
This op-ed was originally published by The Regulatory Review. Reprinted with permission.
Law professors dream of the day when the U.S. Supreme Court will rely on one of their publications for a proposition that is crucial to the outcome of an important case. What better validation of all the blood, sweat, and tears that were poured into the publication? What a surge of power to discover that their work has had an impact, if only in the context of a single lawsuit. What an existential high to know that they have finally arrived at the pinnacle.
We experienced none of those emotions when reading Chief Justice John Roberts' opinion in West Virginia v. EPA. The citations to our work were both minor and innocuous, so that fact helps allay any sense of accomplishment. But equally significant, the Court's analysis bears little relationship to our own understanding …
This is the second part of a post that was originally published on Legal Planet. The first part ran on July 19. Reprinted with permission.
What Legal Authority Would an Emergency Climate Declaration Give the President?
What government powers would be unlocked by declaring a climate change emergency? One immediate possibility would be to use the same power that former President Trump used to divert military construction funds to other uses — in this case, perhaps building wind or solar farms or new transmission lines. But what else could President Biden do?
The Brennan Center has compiled a helpful list of almost 150 statutes giving the president special powers during emergencies. The list doesn’t map the outer perimeter of presidential powers — there are other laws that give presidents powers to take action on the basis of national security, and the president also has some ill-defined, though not …