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Dec. 21, 2012 by Daniel Farber

D.C. Circuit Denies Rehearing in Endangerment Case

Cross-posted from Legal Planet.

Six months ago, the D.C. Circuit upheld EPA’s finding that greenhouse gases endanger human health and welfare, triggering coverage under the Clean Air Act.  On Thursday, the full court denied rehearing to the three-judge panel’s decision.  There were only two dissents, which obviously were hoping to set the stage for a cert. petition to the Supreme Court.  The dissents provide a preview of the kinds of arguments that will be made to the Supreme Court.

One key point is that neither dissent questioned the scientific basis for EPA’s finding.  It is clear that the climate skeptic positions advanced by the state of Texas have no traction even with very conservative judges.

The strongest arguments raised by the dissents involve a technical statutory issue.  The case involves provisions of the Clean Air Act that apply to “any air pollutant.”  The dissent argues that this means “any criterion air pollutant” (meaning the six pollutants that are most extensively regulated by the statute.”  I discussed this issue extensively in a post about the original decision, so I won’t go into the details here, but I think EPA’s position on this issue is sound …

Dec. 13, 2012 by Daniel Farber
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Cross-posted from Legal Planet.

Mayan apocalypse: panic spreads as December 21 nears

Fears that the end of the world is nigh have spread across the world with only days until the end of the Mayan calendar, with doomsday-mongers predicting a cataclysmic end to the history of Earth.

That’s from a British newspaper, the Telegraph, but you only have to Google “Mayan Calendar” to find lots of similar items. There seems to be no basis at all for the idea that the Mayans thought the world would end at this point, let alone that it actually will. But it’s certainly gotten people excited.

Ironically, people seem to be much less excited about climate change. That’s ironic for two reasons. First, it’s at least conceivable that the climate will hit a tipping point with catastrophic (though probably not apocalyptic) consequences. And second, what destroyed the …

Oct. 31, 2012 by Daniel Farber
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Cross-posted from Legal Planet.

Today’s FEMA is a lot different from the organization that flubbed the Katrina response. There have been a number of positive changes, mostly during the past four years.

First, as the Washington Post explains, FEMA’s authority has expanded:

Congress has broadened FEMA’s authority so that the agency can respond in advance of major storms, instead of waiting for governors to request federal aid after a disaster strikes. The measures earned plaudits from then-Gov. Haley Barbour (R) of Mississippi and Gov. Bobby Jindal (R) of Louisiana — usually tough Obama critics — and professional emergency managers who had sought the changes for years.

Second, unlike the hapless “Brownie” who headed FEMA during Katrina, the current director is an experienced professional. W. Craig Fugate was the head of the highly regarded Florida emergency response agency under Governor Jeb Bush. Fugate began his career as …

Oct. 29, 2012 by Daniel Farber
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Cross-posted from Legal Planet.

The federal role in disaster response dates back to the 1906 San Francisco earthquake, when General Funston sent troops from the Presidio to deal with the city’s desperate emergency. Governor Romney seems dubious about this century-old federal role. During one of the GOP primary debates, Governor Romney was asked what he thought about the idea of transferring FEMA’s responsibilities to the states. This is what he said:

Absolutely. Every time you have an occasion to take something from the federal government and send it back to the states, that’s the right direction. And if you can go even further, and send it back to the private sector, that’s even better. Instead of thinking, in the federal budget, what we should cut, we should ask the opposite question, what should we keep?

John King, the moderator, then asked, “Including disaster …

Oct. 24, 2012 by Daniel Farber
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Cross-posted from Legal Planet.

Deregulation is one of Mitt Romney’s five steps in his plan to add jobs.  But how do we supposedly know that deregulation will add jobs?  It’s a fascinating story, featuring a Nobel laureate’s economic model.  The model is very fancy, lots of complex math, but it’s justified on the basis of a discredited study.

The story begins with a new white paper from the Romney campaign. Four leading economists attempt to provide an explanation of the campaign’s job claims.  In terms of deregulation, the white paper says, “Recent research by Ellen McGratten and Nobel laureate Edward Prescott concludes that higher regulatory costs reduced both R&D and fixed investment during the financial crisis and its aftermath; and regulations continue to increase.”  So getting rid of regulations will increase jobs, apparently. This one paper is the sole basis given for …

Sept. 19, 2012 by Daniel Farber
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Cross-posted from Legal Planet.

Obesity is an environmental issue because the food system (from farm to table) uses a lot of energy and produces significant water pollution. More food equals a bigger environmental footprint. Sweetened soft drinks are a good example: they use corn sweetener, and corn production has a large footprint because so much fertilizer is required. There is a growing epidemic of obesity and of childhood obesity in particular.

The New Scientist has a very thoughtful review of the evidence regarding the connection between sweetened soft drinks and obesity. The evidence is mixed, but favors the existence of a link — especially if you exclude studies financed by the food industry or by researchers with other close ties to the industry. So there’s some reason to think that New York’s recent ban on supersized soft drinks may reduce obesity. That would be good for …

Sept. 5, 2012 by Daniel Farber
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Ben Somberg posted here recently about the Republican platform and the environment. He noted that the platform uses a discredited estimate of regulatory costs, calls for making environmental regulations into guidance documents for industry, and proposes a moratorium on new regulations for the indefinite future.

Unfortunately, that’s only the tip of the iceberg. If you can think of an anti-environmental measure proposed by any Republican since Reagan took office, there’s a good chance you’ll find it tucked away somewhere in this platform. Since there are so many of them, it’s helpful to organize the proposals into four bins: (a) regulatory reform; (b) climate change and energy; (c) wildlife, water and property rights; and (d) enforcement.

Regulatory Reform. As Ben noted, the platform calls for a moratorium on all new regulations pending White House review of all existing ones. New regulations will also be …

July 31, 2012 by Daniel Farber
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Cross-posted from Legal Planet.

There has been considerable discussion of Governor Romney's views about the causes of climate change and about policies such as cap and trade.  It's not easy, however, to find detailed documentation.  For that reason, I've assembled as much information as I could find about what Romney has said and done over the years, with links to sources (including video or original documents when I could find them).

Jan. 2003.  Romney takes office as Governor of Massachusetts.

July 21, 2003.  In a letter to New York Governor George Pataki, Romney says : “Thank you for your invitation to embark on a cooperative northeast process to reduce the power plant pollution that is harming our climate.  I concur that climate change is beginning to effect on sic our natural resources and that now is the time to take action toward climate protection. . . . I …

July 23, 2012 by Daniel Farber
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Cross-posted from Legal Planet.

On Tuesday, the D.C. Circuit decided American Petroleum Institute (API) v. EPA, an interesting case dealing with nitrogen oxide (NO2) levels. The standard is supposed to include a margin of safety.Under the Clean Air Act, EPA sets National Ambient Air Quality Standards (NAAQS) for airborne substances that endanger human health or welfare. EPA set such a standard for NO2 in 1971 and finally got around to revising the standard in 2010.

The innovation in the new NO2 standard is that it’s a one-hour standard covering peak exposures, and all air monitors in an area must hit the standard. The previous standard was an annual average, so local, temporary peaks could be quite a bit higher. The evidence showed that the earlier average standard did not protect people against respiratory problems from spikes in nitric oxides, particularly if they were near …

July 17, 2012 by Daniel Farber
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Cross-posted from Legal Planet.

In some situations, voluntary efforts leads other people to join in, whereas in others, it encourages them to hold back.  There’s a similar issue about climate mitigation efforts at the national, regional, or state level.  Do these efforts really move the ball forward?  Or are they counterproductive, because other places increase their own carbon emissions or lose interest in negotiating?

A common sense reaction is that every ton of reduced carbon emissions means one less ton in the atmosphere.  But things aren’t quite that simple.  If we mandate more efficient cars, a number of other things might happen besides the immediate drop in emissions per mile: people might increase their driving because they don’t have to pay as much for gas; the same number of less efficient cars could be sold, but in other countries; or the reduced demand for …

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