Originally published on Legal Planet. Reprinted with permission.

The idea of low-hanging fruit is ubiquitous in environmental policy – sometimes in the form of a simple metaphor, other times expressed in more sophisticated terms as an assumption of rising marginal costs of pollution reduction. It's an arresting metaphor, and one that can often be illuminating. But like many powerful metaphors, it can also mislead us badly.

The idea behind the metaphor can be expressed in various ways, which can be equally arresting for those attuned to them. The same idea can be incorporated into graphs showing the cost of additional pollution reductions rapidly rising as the level of removal increases. If you google something like "marginal costs pollution reduction," graphs like that will pop up immediately along with verbal statements of the same concept. Combined with the assumption that the harm done by a unit of pollution …

Originally published on Legal Planet. Reposted by permission.

The oil industry is enormous – something like 2 to 3 percent of global GDP. Individuals firms like ExxonMobil earn tens of billions of dollars each quarter. Controlling climate change will mean drastic curtailment in the coming decades of the industry’s major products. There’s no way that the industry will accept this lying down, and it’s a formidable opponent. To be successful, we will need a combination of strategies, aside from the rightness of our cause. There’s no doubt that there will be major battles with the industry. The question is only whether we can strengthen the forces on our side or reduce the stakes for the industry now and then. Here are some strategies of both types.

1. Expand transparency. Most obviously, everything that undermines the political clout of oil companies is good. That means more …

Originally published on Legal Planet.

There are going to be some significant environmental cases over the next year. In addition, some important new cases will be filed now or in the near future, which may produce some interesting rulings. It will probably take more than a year, however, for some of the big new cases down the turnpike to result in their first level of judicial opinions, let alone reach completion.

The Supreme Court

The Court agreed last spring to hear two environmental cases this year. The first, County of Maui, Hawaii v. Hawaii Wildlife Fund, No. 18-260, will be argued on November 6. The issue is whether the Clean Water Act requires a permit when pollutants originate from a point source but are conveyed to navigable waters by a nonpoint source, such as groundwater.

The second case was Atlantic Richfield Co. v. Christian, No. 17-1498. It's …

Originally published on Legal Planet.

Stop me if you've heard this one before: Critical U.S. infrastructure is dilapidated and unsafe. Regulation is weak, and enforcement is weaker. Everyone agrees on the need for action, and climate change will only make the problem worse, but no one seems to do anything about it. Sadly, this has become a familiar story.

Take dams, for instance. A year ago, I noted that the federal government regulates the safety of only a small proportion of dams in the United States, while it owns less than 5 percent. According to the American Society of Civil Engineers, in 2015, there were more than 15,000 dams classified as "high-hazard potential," a number that had increased by a third since 2005. The federal government issues dam safety guidelines, but they are not mandatory. The national flood safety program is established by 33 …

Originally published on Legal Planet.

Last Friday, the D.C. Circuit decided Wisconsin v. EPA. The federal appeals court rejected industry attacks on a regulation dealing with interstate air pollution but accepted an argument by environmental groups that the regulation was too weak. Last week also featured depressing examples of the drumbeat of Trump administration rollbacks, so it was especially nice to have some good news.

I hesitated about whether to write something about the case because the opinion makes for dull reading, unless you happen to have been deeply involved in the case. As I thought about it, however, I decided that the undramatic features of the case – the ways in which it was pretty routine – were themselves worth writing about. The opinion shows what it looks like when smart, capable judges apply themselves to complex technical issues. It's not glamorous, but it's crucial to the …

Originally published on Legal Planet.

Prompting rage by President Trump, California and several carmakers entered into a voluntary agreement on carbon emissions from new cars that blew past the administration's efforts to repeal existing federal requirements. Last week, the Trump administration slapped back at California. Although there's been a lot of editorializing about that response, I've seen very little about the legal dimensions of the administration's actions. I'd like to shed a little bit of light on those.

The administration took two separate actions. First, the Department of Transportation and EPA sent a letter arguing that California's action appeared to violate the federal statutes governing CAFE (fuel efficiency) and emissions standards for new vehicles. Second, the Justice Department opened an antitrust probe of the car companies themselves. How strong are the government's legal positions?

Let's start with the DOT/EPA letter. The Clean Air Act and the …

Originally published on Legal Planet.

Under executive orders dating back to President Ronald Reagan, regulatory agencies like EPA are supposed to follow cost-benefit analysis when making decisions. Under the Trump administration, however, cost-benefit analysis has barely even served as window-dressing for its deregulatory actions. It has launched a series of efforts to prevent full counting of regulatory benefits, as well as committing any number of sins against economic principles, as I detailed in a post in January. Essentially, the administration has had a laser-like focus on the costs of regulation, which it often exaggerates, while making every effort to ignore or minimize possible benefits. If Trump is reelected, that will continue.

But what if the Democrats win? Then things are more complicated. A lot depends on the identity of the Democratic nominee. Regardless of who that person may be, however, some parts of cost-benefit analysis will survive …

Originally published on Legal Planet.

On Friday, the D.C. Circuit decided Murray Energy v. EPA. The court upheld EPA's health-based 2015 air quality standards for ozone against challenges from industry (rules too strong) and environmental groups (rules too weak). However, it rejected a grandfather clause that prevented the new standards from applying to plants whose permit applications were in-process when the standards were issued. It also required EPA to tighten up the "secondary standards" for ozone, which are intended to prevent non-health harms such as damage to vegetation.

If you think the life of a federal circuit judge is all about dramatic constitutional arguments, you might consider one argument that the court had to wrestle with. The environmental challengers argued that "EPA impermissibly departed from CASAC's advice by setting the secondary standard level using a three-year average W126 benchmark without lowering the level to protect against …

Originally published on Legal Planet.

Polls show that a great many members of our generation oppose taking action against climate change. I want to try to explain to that group why you should rethink your views. Let me start by explaining why climate action would benefit you yourself and then widen the focus to include your grandchildren and their kids.

Efforts to cut climate change right now aren't likely to have a big effect on climate in the next decade or two. But there are more immediate benefits from cutting carbon. Increasing energy efficiency will cut electricity bills, and stricter fuel efficiency standards will cut gas bills, so these measures pretty much pay for themselves. Moreover, a side effect of cutting carbon is reducing air pollution, which is especially important for people in our age group. When it issued Obama's Clean Power Plan, EPA estimated it would …