Is Cap and Trade Unfair?
Cross-posted from Legal Planet.
I should probably start by putting my cards on the table. I’m not really an advocate of cap and trade as compared with other forms of regulation. What I care about is getting effective carbon restrictions in place, whether they take the form of cap and trade, a carbon tax, industry-wide regulations, or something else. The big advantage of cap and trade from that perspective is that some systems are already up and running, and unlike a carbon tax, it doesn’t directly violate any political taboos. Any of these systems will only be as good as its implementation anyway.
There’s been a lot of debate about environmental justice and cap-and-trade, including some interesting exchanges on this blog prompted by the California litigation on the subject. I thought it would be worth looking into this more carefully, resulting in a short paper on the subject. The most debated issue is whether disadvantaged neighborhoods are likely to get a disproportionate share of pollution (“hotspots”) under cap and trade. The answer depends at least in part on how you define the comparison.
If the question is whether pollution will be higher when you add a new …
Cross-posted from Legal Planet.
The Supreme Court decided the AEP case. The jurisdictional issues (standing and the political question doctrine) got punted. The Court said that the lower court rulings were affirmed by an equally divided court. So far as I know, this is the first time that the Court has ever done that and then proceeded to a ruling on the merits. (It would seem more appropriate to dismiss cert. as improvidently granted rather than issue an opinion on the merits.) This is actually good news: it means that there were four Justices to reject the political question doctrine and find standing. Since Justice Sotomayor did not participate but wrote the lower court opinion, we know that five Justices would vote accordingly in another case. Hence, it seems clear that lower courts should not apply the political question doctrine in these circumstances and that they should …
Cross-posted from Legal Planet.
I’ve just spent some time reading the initial briefs in the D.C. Circuit on the endangerment issue. They strike me as much more political documents than legal ones.
A brief recap for those who haven’t been following the legal side of the climate issue. After the Bush Administration decided not to regulate greenhouse gases under the Clean Air Act, the Supreme Court held that greenhouse gases would be covered if they met the statutory requirement of endangering human health or welfare. After much stalling by the Bush administration, EPA followed the scientific consensus by finding that (1) yes, climate change is real and caused by human emissions of greenhouse gases, and (2) that climate change would indeed harm humanity (including Americans). That determination is now being challenged by states such as Texas and Virginia and various other parties like the …
Cross-posted from Legal Planet.
I’m beginning to wonder whether we need an “Endangered People Act” to ensure that the most vulnerable get the protection they need from climate change impacts. Climate change will disproportionately affect vulnerable individuals and poorer regions and countries, as I discuss in a recent paper comparing adaptation efforts in China, England, and the U.S. For example, by the end of the century, the number of heat wave days in Los Angeles could double, while the number in Chicago could quadruple, with corresponding increases in deaths. Elderly poor people are more vulnerable to heat stress; they are especially at risk when they are socially isolated. Another example is provided by coastal fishing communities around the world, such as Louisiana’s Cajuns, who will be swamped by rising sea levels. Internationally, millions of inhabitants of river deltas like the Mekong are at high …
Cross-posted from Legal Planet.
Michele Bachmann has introduced legislation to overturn the statute requiring the use of energy-efficient light bulbs, according to E&E News. One feature of the bill is its escape valve:
Bachmann’s bill would allow the mandate to stand if the Government Accountability Office can prove the energy efficient bulbs would meet three criteria: that they provide real cost savings for consumers, significantly reduce carbon dioxide emissions and do not produce health risks for consumers. . .
“Frankly, I would be surprised if the GAO can prove these criteria, but at minimum, my bill will provide the opportunity to examine these important issues,” she added. “The American people want less government intrusion into their lives, not more, and that includes staying out of their personal light bulb choices.”
Why is this GAO escape-valve unconstitutional? The answer stems from the fact that the General Accountability Office is …
Cross-posted from Legal Planet.
In his book Bayou Farewell, Mike Tidwell tells some haunting stories about the rapid disappearance of the Louisiana coast from his time with Cajun fisherman. Here’s one story:
“We all pile into the crab boat and Tim tells his son to head down the bayou. A few hundred feet away . . . Tim points toward a watery stretch of march grass oddly littered with bricks and concrete.
“’It’s a cemetery,’ he says.
“There, shockingly, along the grassy bayou bank, I can now make out a dozen or so old tombs, all in different stages of submersion, tumbling brick by brick into the bayou water. . . The bayou is swallowing the dead here.”
The fact is that even before the BP Oil Spill, the Gulf Coast and the Gulf of Mexico itself were under siege from damage to wetlands, a poorly regulated oil and gas …
Cross-posted from Legal Planet.
It’s often said that the Clean Air Act is an inappropriate way to address climate change. It would undoubtedly be desirable for Congress to pass new legislation on the subject, but the Clean Air Act is a more appropriate vehicle than many people seem to realize. There are six common misconceptions about the statute that have led to confusion:
Myth #1: EPA has made a power grab by trying to use the Clean Air Act. Not true — the Supreme Court held that greenhouse gases are air pollutants and directed EPA to make a scientific judgment about whether climate change is a threat to human health or welfare.
Myth #2: The Clean Air Act is only aimed at harms from breathing air pollutants. Again, not true. Inhalation hazards are clearly important, but the statute also addresses hazards such as increased ultraviolet radiation from …
Cross-posted from Legal Planet.
Although there will be many flashing lights and loud noises, 2011 will primarily be a year in which various events that are already in play evolve toward major developments in 2012.
Litigation. The one exceptional major development in 2011 will be American Electric Power (AEP) v. Connecticut, the climate nuisance case that the Supreme Court has agreed to hear. The odds are good that the Court will throw out the case, the interesting question being what ground the Court will choose. It would be very surprising if the Justices relied on the political question, which the trial courts have favored. The easiest basis for dismissal would be that the federal common law of nuisance is preempted by EPA’s actions under the Clean Air Act, but there will surely be a number of Justices who want to dismiss the case on the basis …
Cross-posted from Legal Planet.
I thought it might be interesting to see the general trajectory of CERCLA litigation over the years. The figures for reported court decisions are readily available on Westlaw. (I searched for CERCLA or Superfund by year.) Part of the trajectory makes sense, but part is puzzling.
There’s a clear pattern up through 2002 that’s fairly easy to understand. CERCLA cases began slowly, with one in 1981 and 11 in 1982. The number of cases per year then builds steadily until at peak of 356 cases in 1993. After the peak, the number slowly subsides to 155 in 2002. That pattern seems to make sense for a new law that is mostly designed to fix a finite set of existing sites.
You would expect the number of cases to continue declining or maybe to stabilize at around 150 for a while. But …
Cross-posted from Legal Planet.
On Friday the D.C. Circuit rejected efforts to stay EPA’s pending greenhouse gas regulations until the court decides the merits of the appeals. It could well take a year or more for the merits to be decided, so in the meantime EPA can move forward.
The court order does not indicate any view on the merits of the cases, but the court clearly rejected the doomsday scenario painted by industry and the state of Texas:
Petitioners have not satisfied the stringent standards required for a stay pending court review. See Washington Metro. Area Transit Comm’n v. Holiday Tours, Inc., 559 F.2d 841, 843 (D.C. Cir. 1977); D.C. Circuit Handbook of Practice and Internal Procedures 32 (2010). Specifically, with regard to each of the challenged rules, petitioners have not shown that the harms they allege are “certain,” rather …
