Supreme Court Swings at Phantoms in West Virginia v. EPA
In West Virginia v. EPA, the U.S. Supreme Court slayed a phantom, a regulation that does not exist. Why? The justices in the majority could not contain their zeal to hollow out the EPA’s ability to lessen suffering from climate change in ways that impinge the profits of entrenched fossil fuel interests.
In doing so, the activist justices reached out to interpret the Clean Air Act despite the Court’s traditional restraint in deciding only cases where plaintiffs suffering individualized harm present a focused, redressable dispute. The Court has been particularly strict in foreclosing judicial review when environmental plaintiffs complain about prospective rules and actions. But today’s decision eagerly engaged with the speculative harms presented by West Virginia and coal companies. They were not harmed by a regulation that never took effect and that never will be implemented.
In its “what if” analysis, the Court claimed for itself the power that presidents historically exercised through selecting agency officials to implement the administration’s agenda. This decision narrows the interpretive authority of those appointed officials, such as the EPA Administrator. It substitutes the judiciary for the executive branch in fleshing out broad congressional commands, such as “prescribe regulations …
This post is part of a series on climate justice in California.
On June 23, the California Air Resources Board (CARB) will hold its first public hearing on its draft plan (the Draft 2022 Scoping Plan) for achieving the state's climate goals and for getting to carbon neutrality no later than 2045. Including actions that prioritize California's overburdened and underserved communities will be vital to the success of the proposed plan.
Many across the state are expressing concern that the proposed course of action in the draft plan will be too slow, achieving carbon neutrality by 2045 instead of by 2035, the earlier target Gov. Gavin Newsom directed the agency to consider. Although the proposed approach would reduce the demand for and use of fossil fuels significantly, it would allow existing oil and gas industry activities that disproportionately harm low-income communities of color to continue indefinitely.
Environmental …
This post is part of a series on climate justice in California.
On June 23, California's Air Resources Board (CARB) — the state's air pollution control agency — is holding a public hearing on its comprehensive roadmap for achieving the state's daunting climate goal: carbon neutrality by 2045 at the latest, a goal established by Gov. Gavin Newsom in a 2018 executive order.
Although states are increasingly adopting 100 percent clean electricity targets, California's goal goes considerably farther, covering emissions from the entire economy, including transportation, industry, buildings, waste disposal, and agriculture. With its Draft 2022 Scoping Plan Update (Draft Scoping Plan), the state has now set pen to paper in sketching potential pathways for zeroing out the state's greenhouse gas emissions.
The Draft Scoping Plan provides a general overview of four scenarios by which the state might reach "net zero" emissions. The Draft Scoping Plan includes few details …
The U.S. Supreme Court's upcoming ruling on the U.S. Environmental Protection Agency's power to regulate greenhouse gases from coal-fired power plants offers an unwelcome opportunity for its conservative majority to advance the former Trump administration's goal of "deconstructing the administrative state."
The vehicle for advancing the Trump agenda is the obscure "major questions" doctrine, under which the Court insists that congressional delegations of power to regulatory agencies must be made with pinpoint precision on questions of "vast economic and political significance."
The Court invented the major questions doctrine about 20 years ago in a case involving the U.S. Food and Drug Administration's authority to regulate cigarettes, but it had used it only very rarely to overturn agency actions until Democratic presidents began to write regulations that aggressively protected public health, worker safety, and the environment.
The doctrine is at the heart of …
This post was originally published on Legal Planet. Reprinted with permission.
Should regulators take into account harm to people in other countries? What about harm to future generations? Should we give special attention when the disadvantaged are harmed? These questions are central to climate policy and some other important environmental issues. I’ll use cost-benefit analysis as a framework for discussing these issues. You probably don’t need my help in thinking about the ethical issues, so instead I’ll focus on legal and economic considerations.
Other countries. When the Trump administration estimated the harmfulness of climate change, its answer was about a tenth of the Obama administration’s estimate. The main difference is that Trump counted only impacts within the borders of the United States. There’s been considerable discussion of this issue among academics. Generally, cost-benefit analysis of government regulations has focused on harm within …
This post was originally published by Legal Planet. Reprinted with permission.
In West Virginia v. EPA, the U.S. Supreme Court is reviewing former President Obama’s Clean Power Plan. The Clean Power Plan (CPP) itself no longer has any practical relevance, but there’s every reason to predict the Court will strike it down. The big question is what the Biden administration should do next. That depends on the breadth of the Court’s opinion.
The Clean Power Plan was the centerpiece of the Obama administration’s climate policy. It had three pillars: (1) reductions in emissions from coal-fired power plants; (2) shifts by the owners of coal plants to gas and renewables, and of gas-fired plants to renewables; (3) shifts by states toward the same kinds of shifts for their overall power mixes.
The Clean Power Plan has no practical significance today: the deadlines in …
Conventional wisdom holds that seeing "natural" and “organic" on product labels somehow means the companies selling those goods are using better, safer ingredients. However, these words often offer a false promise to consumers and the planet.
For instance, "natural," which is a relatively broad word, has no concrete, recognized definition in the industry, and it isn’t currently regulated. The federal agencies that oversee the sale and advertising of cosmetics, the Food and Drug Administration (FDA) and the Federal Trade Commission (FTC), still have not formally defined this term as it applies to cosmetic products.
Despite this, cosmetic makers often tout natural ingredients, implying that they are less polluting and therefore better for the environment. On the contrary, the “natural" ingredients in personal and skin care products often contribute to pollution, habitat destruction, and climate change.
Take palm oil, for example. This widely used vegetable oil …
This post was originally published on Legal Planet. Reprinted with permission.
Court watchers and environmentalists are waiting with bated breath for the U.S. Supreme Court to rule on West Virginia v. EPA, the Court's most important climate change case in a generation. The issue in that case is what, if anything, the U.S. Environmental Protection Agency (EPA) can do to regulate carbon emissions from power plants and factories. Last week, conservative states asked the Court to intervene in another climate change case. How the Court responds could give us hints into just how far the activist conservative majority is likely to go in the West Virginia case.
The new case is a challenge to the government's use of the social cost of carbon in making decisions about regulation. The social cost of carbon is an estimate of the harm done by the emission of a …
Few policy questions have a more profound impact on our day-to-lives than how we produce, transport, and use energy. Whether it’s a fight against the siting of a polluting natural gas facility in a historically Black community, the catastrophic failure of an electric grid following a winter storm, foreign wars causing price shocks that further hollow out the fixed incomes of America’s older adults, or an abiding concern over leaving our grandchildren a habitable climate — all these issues and more make energy policy a central concern for the public.
Despite this broad-based and deep concern, the public remains largely excluded from participating in the development of energy policy — much less shaping it. Instead, corporate insiders still retain outsized influence over the energy policymaking process, leaving policymakers with a skewed perspective on issues they address through regulation, which ultimately undermines the quality and legitimacy of those …
This post was originally published on Legal Planet. Reprinted with permission.
The Trump administration left a trail of regulatory destruction behind it. Cleaning up the mess and issuing new regulations is Priority #1 for the Biden administration. Under U.S. Environmental Protection Agency (EPA) head Michael Regan, the effort is beginning to pick up steam.
EPA has begun the year with several major new regulatory efforts. No one of them is transformative standing alone, but their cumulative impact will be substantially cleaner air and lower carbon emissions.
February 28. EPA proposed an unexpectedly strong expansion of the existing rules governing interstate air pollution. The proposal would strengthen existing limits for coal and gas-fired power plants, but it would also add other categories of industry such as cement. In addition, it adds western states like California to the rule's coverage. EPA estimates that the benefits of the rule …
