What Hath FERC Wrought?
At the end of June, in a vote divided along partisan lines, the Federal Energy Regulatory Commission (FERC) handed down a sweeping order that will impact electricity markets in a wide swath of the country – likely at the expense of renewable energy and nuclear power. Unfortunately, like Trump's power plant bailout, the result may be to delay the closing of coal-fired power plants. That's a serious problem. A new study by researchers at Resources for the Future shows that a two-year delay in plant closings would cause 353-815 deaths and release 22 million extra tons of carbon. A two-year delay would cause one death for every four or five coal mining jobs it saved for those two years.
The FERC order applies to PJM, which operates a vast part of the national grid encompassing much of the mid-Atlantic, upper South, and Midwest. My first thought was that the order was basically a different version of Trump's bailout plan for coal, but that's unclear to me on closer examination. For one thing, besides taking a swipe at renewables, the FERC order targets nuclear plants that receive state subsidies of the very kind that Trump wants to mandate. But it's clear that …
Cross-posted from LegalPlanet.
In June, the Supreme Court decided two cases that could have significant implications for environmental law. The two cases may shed some light on the Court's current thinking about the Chevron doctrine. The opinions suggest that the Court may be heading in the direction of more rigorous review of interpretations of statutes by agencies like EPA and the SEC. That could be important as Trump's deregulatory actions start hitting the judicial docket. Thus, in the short-run, limiting Chevron could help check an out-of-control presidency. In the long run, however, it could also hinder progressive regulatory efforts.
As my wife reminds me from time to time, not everyone in the world spends their time on administrative law. So, before I get to that, I'll start with a quick review of the Chevron doctrine, partly drawn from earlier posts. If you don't need that, just skip …
Cross-posted from LegalPlanet.
The Trump administration is doing its best to wipe out Obama's regulatory legacy. How will the courts respond to such a radical policy change?
The philosophical clash between these last two presidents is especially stark, but this is far from being the first time that agencies have taken U-turns. This is the fifth time in the past 40 years that control of the White House has switched parties, with accompanying changes in regulatory approaches. Yet the underlying statutory framework in environment and energy law has not really changed that much, especially in the past 20 years. Thus, courts have repeatedly had to decide how much credence to give to an administrative position that reverses earlier policy.
This may seem a somewhat esoteric legal issue, but it is going to be crucial to how much Trump succeeds or fails in gutting environmental regulation. Here's what …
Cross-posted from LegalPlanet.
The federal government is responsible for responding to major floods and runs the federal flood insurance program. It also has millions of dollars of its own infrastructure at risk from floods. Yet the government is failing to deal effectively with flood risks before the fact.
Let’s begin with the levees that are the main defense against flooding. There are over 100,000 miles of levees across the United States, including about a fifth of all U.S. counties, many of which owned or operated by states, localities, or private entities. Safety regulation is spotty.
By way of background, there are actually two kinds Earthen levees are constructed from compacted soil that is typically covered with grass, gravel, stone, asphalt, or concrete, to help prevent erosion. Floodwalls, which are generally found in urban areas, are made of concrete. Levees require active maintenance such as …
In the era of Trump, one bright spot remains what's happening in cities across the nation. Here are some numbers: 402 U.S. mayors have endorsed the Paris Agreement and announced their intention of meeting its goals, while 118 have endorsed the goal of making their cities 100 percent renewable. A bit of quick research provides a sample of what some major cities are already up to:
Atlanta. Atlanta's city council has set ambitious goals: 100 percent renewable energy for city operations by 2025 and for the entire city a decade later.
Chicago. Chicago commissioned climate scientists to report on how climate change would impact the city. The report cites more heat waves and heavier rains and snows. The mayor has announced a plan to power city buildings with 100 percent renewable energy by 2025. The city has adopted an elaborate climate change adaptation plan.
Houston and …
Texas and Puerto Rico both got hit very hard last year by major hurricanes. But the federal government moved a lot more quickly to get help to Texas. In a new paper, I document the difference and explore the reasons. Although I won't go into all the details here, this is a situation people need to know about.
This table gives a sense of the difference, though there's a more extensive table in the paper.
FEMA says it poured just as many resources into Puerto Rico as Texas and that the response was hindered because they were already stretched thin by other disasters and had to contend with difficult logistic problems. I am willing to believe they made an equal effort. But an equal effort really wasn't enough — not when Puerto Rico's needs were so much greater. For instance, although the number of …
"They sat at the Agency and said, 'What can we do to reimagine authority under the statutes to regulate an area that we are unsure that we can but we're going to do so anyway?'"
When he said those words, Scott Pruitt was talking about the Obama administration. But it seems to be a pretty accurate description of the "transparency" proposal he issued last week.
Everyone agrees that it would be good to increase the public availability of scientific information for independent validation. But Pruitt's proposal is designed to provide EPA with a license to ignore studies that it views as insufficiently transparent – for example, when it cannot agree with investigators over how to protect patient confidentiality if health data is made public. This would allow it to ignore inconvenient evidence about the dangers of various forms of pollution. The proposal cites a string of …
An MIT professor has a great idea for a molten metal battery that could outperform lithium batteries. Of course, like many great ideas, this one might not pan out. But even if it does pan out technically, Grist explains one reason why it might never get to the commercial stage:
Ultimately, the thing that makes lithium-ion so tough to topple is something called the "experience curve." The curve maps how, over time, in many different sectors, increases in scale lead to a reliable and predictable decrease in price. It works for solar panels and semiconductors, even contact lenses and motorcycles, and it definitely works for lithium-ion batteries, says Chris Shelton, chief technical officer at energy company AES. In other words, every time you double the volume of lithium-ion battery production, you reduce the cost by more than 15 percent.
A 2017 paper by Liscow and Karpilow explains …
There are three important climate lawsuits pending in federal court. Here's the state of play and what to expect next.
In the first case, Oakland and San Francisco sued leading oil companies. They claim that the companies' production and sale of fossil fuels is a public nuisance under California state law. They seek an abatement fund to pay for sea walls and other infrastructure needed to address rising sea levels. This lawsuit was originally filed in California state court, but the defendants filed a motion to remove to federal court.
The federal judge ruled in favor of removal on the ground that the defendants' conduct fell under the federal common law of nuisance, not under state law. The judge certified that ruling for immediate appeal but did not stay proceedings in the trial court. The judge also rejected the argument that the federal common law in …
Originally published on The Regulatory Review. Reprinted with permission.
The U.S. Environmental Protection Agency (EPA) is a central instrument of the modern regulatory state. Whether from the perspective of environmental protection or regulatory economics, 2017 has not been a good year.
Experience to date under the Trump Administration is suggestive of industry capture or reflexive ideological opposition to regulation—or both. A multitude of deregulatory actions have occurred. Unfortunately, nearly all of the traditional sources of checks on political leadership—centralized regulatory review, internal agency checks, and congressional oversight —apparently have been neutered or captured. Only the courts, which as yet have not had occasion to play a major role, seem to remain as potential restraints. Let us take each of the nonjudicial checks in turn to see their weaknesses over the last year.
Centralized regulatory review. According to the White House's annual regulatory report …
