Cross-posted from Legal Planet.

It got less attention than it should because it was upstaged by the Supreme Court’s healthcare decision, but last week’s D.C. Circuit ruling on climate change was almost as important in its own way.  By upholding EPA’s regulations, the court validated the federal government’s main effort to control greenhouse gases.  To the extent that the case got public attention, it was because the court affirmed EPA’s finding that greenhouse gases endanger human health and welfare.  However, I want to focus on a much more technical, but practically very important question about the scope of the EPA regulations.  Specifically, the issue is whether EPA was correct that the Clean Air Act unambiguously requires sources emitting more than certain amounts of greenhouse gases to use best available control technologies, even if they did not exceed threshold levels for conventional …

Following is the first of two Dan Farber blog entries reposted today from LegalPlanet.

Bureaucrats aren’t very popular.  But consider the alternatives when it comes to dealing with environmental problems.  Basically, bureaucrats are part of the executive branch of government.  For instance, the head of EPA is appointed by the President and can be removed by the President at any time.  (A few agencies such as the SEC enjoy some protection from presidential removal power, but that’s not true for any of the environmental agencies.)  I explained in my last post why the free market won’t generally solve environmental problems.  So that leaves the three branches of government: the courts, the executive branch, and Congress.

Most people who don’t like regulations also don’t like the idea of using courts to solve social problems.  In the case of environmental problems, the reluctance is …

A conventional approach to safety is based on the concept of design events. A building code might say, for example, that a building should be able to survive a 7.0 earthquake. This approach has been basic to the regulation of nuclear reactors. As the interim report of the post-Fukushima NRC task force explains:

The regulation also requires that design bases . . . reflect (1) appropriate consideration of the most severe of the natural phenomena that have been historically reported for the site and surrounding region, with sufficient margin for the limited accuracy and quantity of the historical data and the period of time in which the data have been accumulated, (2) appropriate combinations of the effects of normal and accident conditions with the effects of the natural phenomena, and (3) the importance of the safety functions to be performed. p. 25

The report points out two flaws with …

Cross-posted from Legal Planet.

The U.S. Court of Appeals for the Fifth Circuit has upheld a district court ruling that the federal government is liable for damage from the Katrina storm surge that went up the MRGO canal into the city. As I read the opinion, it is limited in three ways. First, it is crucial that MRGO — the Mississippi River Gulf Outlet — was a navigation project, not a flood control project. The government is immune from flooding caused by a flood control project. Second, the specific negligent action, failure to shore up the sides of the channel, was primarily related to protecting the canal itself rather than to flood control. And third, failure to shore up the sides was not a policy decision, but was based on careless science that led the Corps of Engineers to conclude that there was no risk of harm from …

Cross-posted from Legal Planet.

Governor Romney has endorsed an idea called regulatory budgeting, but it really means capping protection for public health. Romney’s position paper explains the concept as follows:

To force agencies to limit the costs they are imposing on society, and to provide the certainty that businesses crave, a system of regulatory caps is required. As noted, the federal government has estimated that the existing regulatory burden approaches $1.75 trillion. We cannot afford those costs to go any higher. . . .

. . . .In the first term of a Romney administration, the rate at which agencies could impose new regulations would be capped at zero. What this means is that if an agency wishes or is required by law to issue a new regulation, it must go through a budget-like process and identify offsetting cost reductions from the existing regulatory burden.

Most of the EPA’s major …

Cross-posted from Legal Planet.

Of course, not everyone agrees that CBA is good in the first place.  It remains anathema to many environmentalists.  My own view is that it can be a useful tool so long as its limitations are clearly understood.

But just because something is good doesn’t mean that more is better.  My grandmother’s view was that if a recipe called for two eggs and one tablespoon of butter, four eggs and two tablespoons would produce an even tastier result — a theory that did not always prove valid.  Sometimes, you really just need two eggs!

The same is true of cost-benefit analysis.  There are a number of proposals in Congress to expand cost-benefit analysis to cover many additional regulations.  A very thoughtful analysis from the Congressional Research Service points out that these proposals may not themselves pass a cost-benefit analysis:

Although there is …

Cross-posted from Legal Planet.

I’ve done several postings about the theory that regulatory uncertainty causes unemployment.  I’m skeptical of the claim as a general matter, but if there’s any validity to it, one of the major causes of regulatory uncertainty is the Tea Party, along with other libertarians and opponents of regulation.

It’s not hard to see how the prospect of deregulation could cause businesses to delay investments and hiring:

• Why build a new power plant today when you may be able to build a much cheaper plant with fewer environmental restrictions in a few years?
• If a hospital isn’t sure of the health care financing model that will be in place in a couple of years, why hire new people now or make investments in new equipment?  Better to wait until you know whether the health-care law remains in effect.
• If …

Cross-posted from Legal Planet.

A current conservative refrain is the regulatory uncertainty is holding back the economy.  Consider an editorial entitled “Obama’s regulatory flood is drowning economic growth”:

Businesses large and small face more uncertainty today about the federal regulatory environment than at any point since the New Deal . . . . Seeing this tsunami of red tape flooding out of Washington, company owners and executives wisely opt to delay new hires and investments until they have a clearer idea how much their already huge compliance costs will increase and how the markets will be warped by changes mandated by the bureaucrats.

Of course, it sounds better to talk about “regulatory uncertainty” than just to say that businesses hate the idea that they’ll have to cut pollution or give more information to consumers.  In any event, there’s so much wrong with the “uncertainty” argument that it’s …