Justice Stevens: Architect of Modern Environmental Law Doctrine
Cross-posted from Legal Planet.
When I sat down to write this blog posting, I started by going through my environmental law casebook and noting down the cases in which Justice Stevens had written the majority opinion or a major dissent. When I got done, I was startled by the central role Justice Stevens had played in creating modern environmental law.
I’ll explain that central role in a minute, but first, why I was startled? Two reasons. First, Justice Stevens still retains some of the “brilliant maverick” reputation that he gained in his first year on the Court. That is, someone with a lot of sharp insights but no overall theme. Second, so far as I know, he has no particular passion for environmental law as such. His life before he became a judge never included environmental law, and so far as I know he has no special attachment to the outdoors.
Here are some examples of key environmental law opinions by Justice Stevens (not all of them on the side of the environmental angels):
*In the Benzene Case, he put the Court’s stamp of approval on quantitative risk analysis, holding that the agency needed a numerical estimate of …
Cross-posted from Legal Planet.
The Council on Environmental Quality has issued a draft guidance to agencies on treatment of greenhouse gases. The key point is that emissions exceeding 25,000 tons per year of CO2 will be considered a “significant environmental impact” and require preparation of an environmental impact statement.
Overall, of course, this is a huge step forward. One point that does deserve further attention is the discussion of land use. On a fairly quick read, I’m not clear on the scope or effect of the draft’s discussion of this issue.
1. Scope of the exclusion. The drafts says: “Land management techniques, including changes in land use or land management strategies, lack any established Federal protocol for assessing their effect on atmospheric carbon release and sequestration at a landscape scale. Therefore, at this time, CEQ seeks public comment on this issue but has not …
Today’s decision in Citizens United was something of a foregone conclusion. Still, it was a bit breathtaking. The Court was obviously poised to strike down the latest Congressional restrictions on corporate political expenditures. But the Court went further and struck down even restrictions that had been upheld thirty years ago. Seldom has a majority been so eager to reach out, address a question that wasn’t presented by the parties and overrule a bevy of prior decisions. The term “judicial activism” is overused but seems entirely appropriate here.
In the end, the Court just doesn’t see any real reason for campaign finance restrictions. It may be willing to tolerate some token restrictions in the name of precedent, but basically, it views economic influence over the political process as altogether natural and appropriate.
The decision was a foregone conclusion because the key supporter for the prior …
cross-posted from Legal Planet
Rob Stavins has a good, concise overview of the session and the outcome on the Belfer Center website. Not as negative as some other observers, he highlights the extraordinary procecess that resulted in the Copenhagen Accord:
It is virtually unprecedented in international negotiations for heads of government (or heads of state) to be directly engaged in, let alone lead, negotiations, but that is what transpired in Copenhagen. Although the outcome is less than many people had hoped for, and is less than some people may have expected when the Copenhagen conference commenced, it is surely better – much better – than what most people anticipated just three days earlier, when the talks were hopelessly deadlocked.
Overall, he sees Copenhagen as a constructive move forward:
The climate change policy process is best viewed as a marathon, not a sprint. The Copenhagen Accord – depending upon details yet …
Has the U.S. "exported" its carbon emissions to China by relying on China to manufacture so many of our goods? There seems to be growing support for the idea that carbon emissions should be tied to consumption of goods rather than their manufacture, as the NY Times reported recently. There is a grain of truth to the idea. But consumer responsibility should be considered secondary. The primary responsibility rests with producers.
Most of the debate has been about climate change. But it may be easier to think through the issue in a less contentious context. Consider the problem of water pollution in the Mississippi River, which results in the infamous dead zone in the Gulf of Mexico. Agricultural runoff in the Midwest is a big part of the problem. A significant portion of the U.S. corn and soybean crops are exported to Asia.
Does this …
Cross-posted from Legal Planet.
Cost-benefit analysis has become a ubiquitous part of regulation, enforced by the Office of Management and Budget. A weak cost-benefit analysis means that the regulation gets kicked back to the agency. Yet there is no statute that provides for this; it’s entirely a matter of Presidential dictate. And reliance on cost-benefit analysis often flies in the face of specific directions from Congress about how to write regulations. There are a few exceptions, such as regulations involving pesticides, bans on toxic substances, and thermal water pollution, where Congress called for EPA to balance costs and benefits equally. But almost all environmental laws direct agencies to use some standard other than cost-benefit analysis. The statutes generally place a greater weight on environmental quality and public health than on cost.
For example, it’s fairly obvious that Congress did not contemplate much of a role …
Today, EPA made its long-expected official finding: climate change is real, and we human beings are the cause.
More than two years after the Supreme Court ordered EPA to address the issue, EPA has now formally ruled that greenhouse gases cause climate change that endangers human health or welfare. EPA also found that motor vehicles contribute significantly to levels of greenhouse gases. These findings trigger regulation under the Clean Air Act for motor vehicles. Similar findings are likely in the near future under a different section of the statute relating to stationary sources such as factories.
This development has been inevitable since the Supreme Court ruled that EPA must make a decision based solely on the scientific evidence. Despite all the recent brouhaha about hacked emails, the scientific evidence on climate change is just as solid as the evidence behind DNA identification, the ill effects of cholesterol …
Cross-posted from Legal Planet.
Apparently, substantially safer designs for nuclear reactors are now available. But the safe storage and disposal of nuclear waste is a significant challenge and a yet unresolved problem. Presently, waste is stored at over a hundred facilities across the country, within seventy-five miles of the homes of 161 million people.
The major problem is the longevity of the waste – plutonium will be dangerous for 250,000 years. Although we may be able to model the geologic and physical processes at some geographic sites over such time periods, no one seems to have a clue about how to model possible changes in human behavior and society. Thus, by producing nuclear waste, we are leaving our descendants with a dangerous problem, while having no real idea how competent they will be to handle it. Assuming we care about their welfare, we seem to be taking …
Cross-posted from Legal Planet.
Both the NY Times and the Washington Post had lead stories Wednesday on the politics of climate change legislation. The Post’s story centered on the increasing focus of the debate on the economic impact of climate legislation and on the difficulty of establishing the facts:
In anticipation, groups on the left and the right — as well as government outfits such as the Environmental Protection Agency and Congressional Budget Office — have issued a spate of analyses projecting the costs and, sometimes, the benefits of congressional climate legislation. But the fine print in many of these projections reveals that they are based on assumptions that could easily turn out otherwise, meaning lawmakers will have to take a leap of faith about how a cap-and-trade program — which would control pollution by providing economic incentives to reduce emissions — might affect the economy.
It seems to me …
Cross-posted from Legal Planet.
Since opponents can’t seem to come up with any new arguments against climate change legislation, they seem determined to recycle the old, discredited ones. Here’s Tuesday’s example, straight from the GOP press release:
Rep. Jim Sensenbrenner, R-Wis., and Rep. Darrell Issa, R-Calif, today urged the Environmental Protection Agency to include several relevant studies in its decision-making record for a major finding on climate policy after it was made public that a senior EPA official suppressed the scientific evidence for apparently political reasons.
“I’m sure it was very inconvenient for the EPA to consider a study that contradicted the findings it wanted to reach,” said Rep. Sensenbrenner, the ranking Republican on the House Select Committee on Energy Independence and Global Warming. “ . . .
This is actually an old story, which has been debunked as many times as the urban myths about alligators …
