April 20, 2011 by Douglas Kysar

American Electric Power v. Connecticut: The Good News

Cross-posted from ACSblog.

In one of the most, er, hotly anticipated cases of its term, the Supreme Court yesterday heard arguments in the climate change nuisance suit of Connecticut v. American Electric Power. From the beginning of this litigation, pundits have questioned the plaintiffs’ decision to seek injunctive relief gradually abating the defendants’ greenhouse gas emissions. To critics, this form of relief – as opposed to, say, monetary damages – seems to highlight the complex and value-laden aspects of climate change as a policy problem, making judges more likely to dismiss the suit as lying beyond the ken of the judicial branch.

Tuesday's argument confirmed the pundits’ view, as even reliably liberal justices like Ruth Bader Ginsburg greeted the plaintiffs’ claims with palpable skepticism. Justice Ginsburg’s money quote, which is being cited around the blogosphere, came when she told the plaintiffs that their prayer for relief “sounds like the kind of thing EPA does.” Justice Kagan quickly piled on: “It sounds like the paradigmatic thing that administrative agencies do rather than courts.” Justice Breyer, ever the policy wonk, wondered aloud whether “the courts can set a tax” because, in his words, from “what I get from reading, these carbon taxes …

March 24, 2011 by Douglas Kysar

A report yesterday from Inside EPA offered a fascinating overview of the agency’s struggle to update the way it assigns dollar values to the suffering and premature death that its regulations prevent. Seriously, as far as economic esoterica goes, this stuff is riveting. What’s more, your life may depend on it.

Currently, EPA values each statistical human life saved by its rules at $7.9 million. This number is derived from so-called “wage-risk premium” studies that examine large data sets on employment and occupational risk. The idea is that, if you control for education, job sector, geographic region, and other relevant factors, then you should be able to come up with a number representing the portion of an employee’s wage that compensates for higher on-the-job health or safety risks. Depending on how a worker values health and safety compared to other goods, he – and …

Dec. 6, 2010 by Douglas Kysar

The Supreme Court this morning granted certiorari in the case of American Electric Power Co. v. Connecticut, a common law nuisance suit seeking an order compelling large electric utility companies to reduce their contributions to global climate change. At issue will be a variety of doctrines – such as standing and political question – that nominally originate from constitutional limitations on the role of the judicial branch, but that judges have, over the years, expanded well beyond the text and structure of the Constitution. 

AEP is the first climate change nuisance suit to reach the Supreme Court, but it is only one of several that have been initially dismissed by district court judges who seem all too eager to avoid these controversial and boundary-straining suits. 

The problems with these dismissals are two-fold. First, to the extent that judges are worried about stretching tort law to reach the mother of …

Sept. 27, 2010 by Douglas Kysar

This post looks at two recent books by CPR Member Scholars in the context of the BP disaster and other recent regulatory failures:

The People’s Agents and the Battle to Protect the American Public, by Rena Steinzor and Sidney Shapiro

Facing Catastrophe: Environmental Action for a Post-Katrina World, by Robert R. M. Verchick

Does the BP oil spill signify the need for an entirely new conception of the administrative state, one reformulated to meet the global, complex, uncertain, and potentially catastrophic nature of twenty-first century threats to social and ecological well-being?  Or does it simply suggest the need to redouble our commitment to environmental, health, and safety laws that are already on the books and that would have prevented the disaster if they had been vigorously enforced?

Two valuable new books shed light on these questions.  Both were written before the spill, but both will inevitably …

Feb. 5, 2010 by Douglas Kysar

This week the White House Office of Management and Budget (OMB) released its annual report to Congress on the costs and benefits of federal regulatory programs. For the policy wonks among us, the most intriguing part was a section on recommendations for reform of the OMB regulatory review process. Here we find hints of what might result from President Obama’s long-awaited overhaul of the executive order on regulatory impact analysis. Cass Sunstein – an eminent legal scholar and now head of the Office of Information and Regulatory Affairs (OIRA) within OMB – has written prolifically and powerfully on this subject and observers expect that the new executive order will bear his unmistakable imprint, shaking up what has been a long-calcified debate on the role of cost-benefit analysis in federal policymaking. If OMB’s annual report is any indication, they won’t be disappointed.

From Nudges to Shoves


Sept. 5, 2009 by Douglas Kysar

Prominent environmental commentator Bjorn Lomborg is at it again, this time convening a blue ribbon panel of five economists to assess the relative merits of different possible methods for addressing climate change.  As reported by Reuters Friday morning, Lomborg's panel concluded that "'climate engineering' projects, such as spraying seawater into the sky to dim sunlight, would be a more effective brake on global warming than increasing taxes on energy."  In a blog entry, The Wall Street Journal added that the economists viewed "any sort of carbon tax" as the least desirable climate policy reviewed and that a "cap-and-trade proposal . . . didn't even make the list." 

It's difficult to evaluate these claims in light of the sparse information actually released thus far about the report.  According to Lomborg's website, the economists relied on background papers concerning each of the proposed climate policies that were prepared …

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More on CPR's Work & Scholars.
April 20, 2011

American Electric Power v. Connecticut: The Good News

March 24, 2011

As the VSL Turns...: In Value of a Statistical Life Debate at EPA, Moral Decisions Hide Behind Technical Jargon

Dec. 6, 2010

SCOTUS Grants <i>Cert</i> in AEP v. Connecticut; Why the Threat of Tort Liability Should Remain as Part of the Balance of Powers

Sept. 27, 2010

Bad Times for Good Government

Feb. 5, 2010

The State of the Cost-Benefit State: What We Can Expect from Sunstein, 'Nudge,' and OMB on Regulatory Impact Analysis

Sept. 5, 2009

Lomborg Plays Economist-as-Philosopher-King on Climate Change