The Case Western Reserve Law Review has published its fall symposium on “The Law and Policy of Hydraulic Fracturing: Addressing the Issues of the Natural Gas Boom.” I blogged about the symposium here. The full issue is available onilne in PDF, and I’ve posted links to the articles below.
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Wind turbines may be a promising low-carbon power source, but the communities in which they are sited do not always welcome them with open arms. Residents of the Forest hills subdivision in Washoe Valley, Nevada, were none to pleased when one of their neighbors planned to erect a wind turbine to power his home. They sued, alleging the 75-foot-tall turbine would constitute a nuisance, and won. While noting that “the aesthetics of a wind turbine alone are not grounds for finding a, nuisance,” the Nevada Supreme Court ruled that “a nuisance in fact may be found when the aesthetics are combined with other factors, such as noise, shadow flicker, and diminution in property value.” On this basis, the court upheld the lower court’s determination that the wind turbine would constitute a nuisance, and could be enjoined.
Earlier this week I was interviewed by Brad Plumer of the Washington Post‘s Wonkblog about my ideas for “conservative” approaches to environmental protection (and my recent paper on the subject). The resulting article is here.
Today the Supreme Court decided Decker v. Northwest Environmental Defense Center. By a vote of 7-1 (with Justice Breyer not participating) the Court held that the Clean Water Act and its implementing regulations do not require timber companies to obtain NPDES permits for stormwater runoff from logging roads. The sole dissenter was Justice Scalia, who would have affirmed the decision of the U.S. Court of Appeals for the Ninth Circuit holding that NPDES permits were required. In Justice Scalia’s view, the plain meaning of the EPA’s implementing regulations required this result, even though the EPA argued for an alternative interpretation. So not only was Justice Scalia the only justice to support the position advocated by environmentalist groups (and the Ninth Circuit), he also rejected the interpretation advanced by the executive branch.
UPDATE: For more on the substance of Scalia’s dissent, see this post.
Last fall, I participated in a conference at Duke Law School on “Conservative Visions of Our Environmental Future,” sponsored by the Duke Environmental Law and Policy Forum, Nicholas Institute for Environmental Policy Solutions, Nicholas School for the Environment, Duke Federalist Society, Duke College Republicans and the Energy & Enterprise Initiative. I blogged the event, summarizing the various talks as they occurred, save for my own. (It’s a bit hard to talk and type at the same time.)
A brief paper, summarizing my remarks, is now on SSRN. Here’s the abstract:
The existing environmental regulatory architecture, largely erected in the 1970s, is outdated and ill-suited to address contemporary environmental concerns. Any debate on the future of environmental protection, if it is to be meaningful, must span the political spectrum. Yet there is little engagement in the substance of environmental policy from the political right. Conservatives have largely failed to consider how the nation’s environmental goals may be best achieved. Perhaps as a consequence, the general premises underlying existing environmental laws have gone unchallenged and few meaningful reforms have proposed, let alone adopted. This essay, prepared for the Duke Law School conference on “Conservative Visions of Our Environmental Future,” represents a small effort to fill this void. Specifically, this essay briefly outlines a conservative alternative to the conventional environmental paradigm. After surveying contemporary conservative approaches to environmental policies, it briefly sketches some problems with the conventional environmental paradigm, particularly its emphasis on prescriptive regulation and the centralization of regulatory authority in the hands of the federal government. The essay then concludes with a summary of several environmental principles that could provide the basis for a conservative alternative to conventional environmental policies.
This paper will be published along with other papers from the conference in a symposium issue of the Duke Environmental Law and Policy Forum due out later this year.
UPDATE: My Washington Post “WonkBlog” interview about this paper is available here.
This morning the U.S. Court of Appeals for the D.C. Circuit handed down a unanimous opinion rejecting both industry and environmentalist group challenges to the Fish & Wildlife Service’s decision to list the polar as a “threatened” species. Environmentalist groups argued the FWS should have listed the polar bear as “endangered. Industry groups and their allies thought the polar bear should not have been listed at all. Applying the highly deferential review that is customary in these sorts of cases, the panel had little difficulty dispatching both sides’ claims. While there are some questions about the FWS’ critical habitat designation for the polar bear, which was thrown out by a federal district court judge in separate litigation, my sense is that the D.C. Circuit got this one right. A federal agency’s assessment of the relevant scientific literature is due substantial deference.
I have prior posts on the polar bear listing and litigation here, here, and here. See also this article from The New Atlantis.
In 2011 I noted a report in Nature suggesting that species extinction rates have been overestimated. A new report in Science has similar implications, suggesting that fears many species will go extinct before they are even discovered are overblown. Specifically, the study suggests many common estimates exaggerate the likely number of species and presume greater extinction rates than can be verified. The abstract for the new study, “Can We Name Earth’s Species Before They Go Extinct?” reads:
Some people despair that most species will go extinct before they are discovered. However, such worries result from overestimates of how many species may exist, beliefs that the expertise to describe species is decreasing, and alarmist estimates of extinction rates. We argue that the number of species on Earth today is 5 ± 3 million, of which 1.5 million are named. New databases show that there are more taxonomists describing species than ever before, and their number is increasing faster than the rate of species description. Conservation efforts and species survival in secondary habitats are at least delaying extinctions. Extinction rates are, however, poorly quantified, ranging from 0.01 to 1% (at most 5%) per decade. We propose practical actions to improve taxonomic productivity and associated understanding and conservation of biodiversity.
The study itself is behind a paywall, but Science Daily has more here. (Hat tip: Ronald Bailey)
That global species extinction rates may have been exaggerated does not mean that extinction and biodiversity loss are not serious problems. I believe they are. While I am unconvinced by the arguments that a loss of biodiversity threatens humanity — largely because the available empirical evidence suggests otherwise — I believe that species extinctions impoverish the world in which we live, and support efforts to protect biodiversity, so long as they are suitably protective of property rights and individual liberty. For such efforts to succeed, it is necessary to have an accurate understanding of the problem. Overhyped fears and exaggerated claims of ecological ruin can actually frustratethe development of effective solutions.
San Francisco banned disposable plastic grocery bags in 2007. It’s not alone. Several dozen communities around the country have adopted similar policies, all in the name of environmental protection. Those thin plastic bags may require far less material than in years past, but some still see them as wasteful. New research, however, shows that banning those plastic grocery bags may be bad for your health.
In a paper up on SSRN, the University of Pennsylvania’s Jonathan Klick and George Mason’s Joshua Wright (recently confirmed as a Commissioner on the Federal Trade Commission) present evidence that bans on disposable plastic grocery bags lead to an increase in food-borne illness. Here’s the abstract:
Recently, many jurisdictions have implemented bans or imposed taxes upon plastic grocery bags on environmental grounds. San Francisco County was the first major US jurisdiction to enact such a regulation, implementing a ban in 2007. There is evidence, however, that reusable grocery bags, a common substitute for plastic bags, contain potentially harmful bacteria. We examine emergency room admissions related to these bacteria in the wake of the San Francisco ban. We find that ER visits spiked when the ban went into effect. Relative to other counties, ER admissions increase by at least one fourth, and deaths exhibit a similar increase.
The results really should not be all that surprising. As Businessweek reports, prior research found that few people regularly wash reusable grocery bags or take other precautionary steps (such as using separate bags for meat and produce). So, not surprisingly, tests find coliform and even e.coli bacteria in a significant percentage of bags.
Of course one solution is to encourage shoppers to take better care by regularly washing their grocery bags and storing them in places where bacteria is less likely to form. But would such educational efforts have much effect? Perhaps, though I’m skeptical. In the meantime, bans on disposable plastic grocery bags may make people feel good, but they also have substantial unintended consequences.
Last week, the U.S. Court of Appeals for D.C. Circuit struck down rules promulgated by the Environmental Protection Agency to implement the national air quality standards for fine particulates in Natural Resources Defense Council v. EPA. (Story here.) One thing that’s notable about the decision is that the Court was reviewing a pair of rules promulgated in 2007 and 2008. It’s also notable is that this is yet one more decision in which the D.C. Circuit rejected a Bush Administration air pollution regulation. As I’ve noted before (see also here), the Bush Administration appeared to have a pretty poor record at defending its air pollution regulations in federal court. Time-and-again, the D.C. Circuit found, the EPA failed to comply with the Clean Air Act in issuing its rules. Some of the EPA rules at issue may have made good sense, from a policy perspective, but they were illegal nonetheless. This string of losses — combined with some of the Obama Administration’s failed efforts to replace the invalidated Bush-era rules — may indicate that portions of the Clean Air Act are outdated and in need of reform, but that does not excuse an agency’s failure to follow the law. Whatever the cause, the Bush EPA had a particuarly hard time complying with Clean Air Act.
This morning, Columbia’s Thomas Merrill delivered the keynote address at the Case Western Reserve Law Review symposium on “The Law and Policy of Hydraulic Fracturing: Addressing the Issues of the Natural Gas Boom.” His talk, “Fear of Fracking,” sought to addressed four important questions about fracking: 1) Why did fracking technology emerge in the United States rather than somewhere else? 2) Does fracking present any novel environmental risks? 3) Insofar as there are novel risks from fracking, how could they be best addressed? 4) What should a citizen concerned about climate change think about fracking?
These are important questions about an important topic. As Merrill noted, fracking has rapidly emerged as intensely polarizing environmental issue, celebrated by some as an economic and ecological savior and decried by others as a threat to landowners, local communities, and the environment. The Wall Street Journal believes fracking heralds the rise of “Saudi America,” while some environmental groups fear fracking will further feed America’s addiction to carbon-based fuels.
Whatever its ultimate ecological impact, the combination of hydraulic fracturing and horizontal drilling promises to dramatically increase domestic oil and gas reserves, drive down energy prices and fundamentally transform the energy sector. North Dakota now produces more oil than any state but Texas and the oil and gas boom in this state is enriching landowners tremendously. Every president since President Nixon has called for energy independence. Fracking’s rise could make this possible within the next few decades. Beyond that, fracking and the proliferation of cheap gas, Merrill suggested, likely means the end of the nuclear power industry in the United States and has thrown the coal industry into a tailspin. Cheap gas is a bigger threat to coal than any alleged “war on coal” waged by the Environmental Protection Agency. It also threatens the future of alternative energy technologies dependent upon government subsidies for their economic viability.
[My write-up of the rest of Professor Merrill’s remarks is continued below the fold.]
Today I am at Duke to participate in a conference on “Conservative Visions of Our Environmental Future,” sponsored by the Duke Environmental Law and Policy Forum, Nicholas Institute for Environmental Policy Solutions, Nicholas School for the Environment, Duke Federalist Society, Duke College Republicans and the Energy & Enterprise Initiative. The conference is being live streamed here, and I’ll be offering comments on the proceedings below.
At LegalPlanet, Dan Farber takes a look at the environmental policy positions of Libertarian Party presidential candidate Gary Johnson.
Last term, in Sackett v. Environmental Protection Agency, a unanimous Supreme Court rejected the EPA’s effort to deny private landowners an opportunity to challenge the agency’s assertion of jurisdiction over their land. The Sacketts wanted to build a home in a subdivision, but the EPA concluded the Sacketts’ land to contain jurisdictional wetlands under the Clean Water Act and issued an order requiring the Sacketts to cease construction of their home and undertake specified restoration efforts. Failure to comply with the order was itself punishable with substantial fines, in addition to any for violating the CWA. The Sacketts sought judicial review of the order, on both statutory and constitutional grounds, to no avail in the lower courts. They prevailed in the Supreme Court, however, completely on statutory grounds, leaving the due process questions to another day.
The Court based its decision on the Administrative Procedure Act’s presumption in favor of judicial review of final agency actions and the CWA’s failure to expressly preclude such review. But what if the CWA had precluded review? Would the Sacketts have been entitled to judicial review under the Due Process Clause? And more broadly, given the uncertainty surrounding the scope of federal wetland regulation, and the lack of fully enforceable jurisdictional regulations, does current CWA enforcement more generally comport with the principles of due process? I explore some of these questions in a forthcoming article in the Cato Supreme Court Review, “Wetlands, Property Rights, and the Due Process Deficit in Environmental Law.” The abstract is below.
In Sackett v. Environmental Protection Agency a unanimous Supreme Court held that private landowners could seek judicial review of an Administrative Compliance Order issued by the Environmental Protection Agency alleging that their land contained wetlands subject to regulation under the Clean Water Act. The Court’s decision rested on statutory grounds, but the same result may have been dictated by principles of due process. Under the CWA, federal regulators have asserted authority over waters and dry lands alike and sought to expand federal jurisdiction well beyond constitutional limits. Under existing regulations, landowners have little notice or certainty as to whose lands are covered, under what authority, or with what effect. As a consequence, federal wetlands regulations, as currently practiced, violates important due process principles.
A new study fails to find scientific support for claims organic food is healthier or safer than conventional alternatives and everyone acts as if this is a surprise. It shouldn’t be. Scientific research has fairly consistently failed to validate the claimed superiority of organic food, as I’ve noted in prior posts over the past ten years (see, e.g., here, here, and here). Organic foods do not consistently show higher nutrient levels than conventional foods, nor are there even clear environmental advantages. Organic farming uses less energy and fewer chemicals, but it also tends to be more expensive and requires more land — meaning that a widescale shift to organic production would increase food costs and require putting more acres under plow, with consequent negative effects on species habitat.
For this latest study, published in the Annals of Internal Medicine, Stanford researchers conducted a meta-analysis of over 200 studies looking at the differences between organic and conventional foods, and concluded “the published literature lacks strong evidence that organic foods are significantly more nutritious than conventional foods.” Organic foods tended to have lower pesticide residues and were less likely to have antibiotic-resistant bacteria, but the researchers concluded the differences were not significant enough to have any meaningful health impact. If organic food truly is healthier — and it may be — the existing scientific literature cannot (yet?) support such claims, particularly as applied to organic foods across the board. There may be specific foods, however, for which organic production may make a difference (or for which organic production methods tend to correlate with other practices that produce positive results).
The bottom line is eat organic foods if you like. Just don’t believe there’s any scientific basis for claiming you will be healthier as a result. As the paper’s senior author, Dena Bravata, explains: ““There isn’t much difference between organic and conventional foods, if you’re an adult and making a decision based solely on your health.”
For more on the study, here are reports from the NYT, AP, and NPR.
Earlier this month, several of the parties challenging the Environmental Protection Agency’s decision to regulate greenhouse gases under the Clean Air Act filed petitions for panel rehearing or rehearing en banc in Coalition for Responsible Regulation v. EPA, in which the U.S. Court of Appeals for the D.C. Circuit turned away all of the state and industry challenges to the EPA’s rules. I summarized the court’s decision here, and provide greater background on the EPA’s regulations and associated policy issues here.
The en banc petitions stress the unusual magnitude and importance of the regulations at issue, as well they should, but that’s often not enough for en banc review. Nor are protestations that that the original panel muffed the merits (case in point), particularly where (as here) most of the issues could be resolved on traditional administrative law grounds. The industry argument that the panel erred in refusing to force the EPA to consider potential adaptation to climate change, for example, is a non-starter. Even if the panel got this question wrong (and I don’t believe it did), that’s not the sort of question that is worthy of en banc review.
There is one issue, however, that could well be en banc-worthy: the panel’s conclusion that industry petitioners lacked standing to challenge the EPA’s so-called “tailoring rule.” While the strict application of Article III standing requirements is nothing new on the D.C. Circuit, here the panel applied the standing rules to prevent the object of a government action from challenging the lawfulness of that action, on the grounds that the harm would not be redressable by a favorable ruling on the merits. Though a plausible reading of the relevant standing precedents, this is a holding that could insulate all manner of regulatory action from judicial review, and expand the already troubling, de facto agency authority to issue “waivers” or otherwise disregard applicable legal requirements.
A bit of background: The Clean Air Act requires the EPA to impose various regulatory requirements on stationary sources that have the potential to emit more than 100 or 250 tons per year of regulated pollutants. (The specific threshold depends on the type of facility.) As applied to traditional pollutants, these thresholds catch thousands of facilities. But applied to greenhouse gases — carbon dioxide in particular — they catch millions. This, the EPA claims, would be an “absurd” result because it would impose an insuperable burden on the EPA and cooperating state agencies. To remedy this, the EPA sought to “tailor” the Act’s requirements by substituting numerical thresholds of its own devising for those contained in the statute itself. So with a wave of its administrative hand, the EPA substituted 75,000 and 100,000 for 100 and 250, and reserved the right to lower the threshold at its discretion in the future.
Industry and state petitioners challenged the Tailoring Rule on the grounds that the EPA has no authority to rewrite the statute by administrative fiat. Applying the plain text of the statute, however, would result in more stringent regulation, not less. Larger facilities subject to the Tailoring Rule would not be guaranteed any direct relief from the rule’s requirements — save whatever relief would come from delay caused by the litigation — and therein lied the problem. If being subject to an illegal regulation were not itself sufficient for standing, all the companies could claim was that subjecting some portions of industry to stringent greenhouse gas permitting rules while exempting others would produce a competitive harm in the form of an unlevel playing field. Exempting some companies from the requirements could give exempted parties a competitive advantage against those who emit enough to still be regulated under the “tailored” rule. Yet unless Congress were to amend the Act (or the EPA were forced to adopt an alternative statutory construction), the larger facilities would be regulated no matter what.
Because the industry petitioners could not claim their suit would necessarily relieve them of any regulatory burdens, the panel concluded, industry petitioners lacked standing to sue. (Indeed, the panel went further and said there was no injury because the regulation of stationary sources was an inevitable consequence of the endangerment finding.) There is a logic to the D.C. Circuit’s reasoning — after all, if winning won’t relieve someone of any regulatory burdens, how could their claim be redressable? One possible response is that rejecting the “Tailoring Rule” could force the EPA to consider alternative ways to avoid the “absurd results” it fears from applying the Act as written to greenhouse gases — alternatives that might well exempt some of the industry petitioners from regulation — but the court closed that door by accepting the EPA’s interpretation of the Act in other portions of the opinion (and then conveniently ducking whether the EPA’s Tailoring Rule is itself permissible under the Act).
A consequence of this decision is that no party subject to the Tailoring Rule has standing to challenge its legality. Thousands of companies are forced to comply with the regulation, and none can have their day in court. Applied more broadly, this decision could have substantial implications, effectively giving agencies like the EPA carte blanche to issue rules selectively exempting politically favored constituencies from statutorily mandated rules. (Indeed, that’s exactly what happened here, as the EPA was well aware that trying to impose the Clean Air Act to stationary source emissions of greenhouse gases would produce a substantial political backlash.) That doesn’t mean the decision is wrong — the rule against taxpayer standing insulates many allegedly illegal government actions from judicial review — but it should raise some questions.
The decision also rests uneasily with the Supreme Court’s treatment of procedural rights in standing cases, which hold that requiring the government to observe such procedural rights is sufficient to satisfy the redressability requirement, even if the ultimate government action will be unchanged. So, for instance, if a plaintiff alleges a federal agency failed to conduct an Environmental Impact Statement under the National Environmental Policy Act, she does not need to allege that the agency would have made a different decision had the EIS been completed. The mere fact that she is injured as a consequence of the agency’s procedurally deficient action is enough. Yet under the D.C. Circuit’s reasoning, there is sufficient redressability for standing when an agency causes injury by failing to follow statutorily prescribed procedures, but not sufficient redressability for standing when an agency causes injury by adopting a regulation that violates the statute’s plain text. [Note: For purposes of standing, such allegations must be accepted as true, so the standing claim does not turn on whether the industry petitioners are correct on the merits on this point -- though, as it happens, they are.]
This aspect of the D.C. Circuit’s standing holding are also at odds with Massachuetts v. EPA. While not all would read the Clean Air Act to provide procedural rights, the Mass v. EPA majority did. Specifically, they held that Section 307(b)(1) of the Clean Air Act provides a “procedural right to challenge” an unlawful EPA action “as arbitrary and capricious,” so there was no need to show that allowing the EPA to regulate greenhouse gases would halt global warming. As the Mass v. EPA majority explained, “When a litigant is vested with a procedural right, that litigant has standing if there is some possibility that the requested relief will prompt the injury-causing party to reconsider the decision that allegedly harmed the litigant.” This case, too, is a challenge to an unlawful EPA action under Section 307(b)(1), and the industry petitioners are unquestionably injured by being forced to comply with the relevant permitting rules — and yet the D.C. Circuit held they did not have standing.
In Lujan v. Defenders of Wildlife, Justice Scalia explained “there is ordinarily little question” that one who is the object of government action has standing to challenge that action. Yet under the D.C. Circuit’s decision, no entity subject to the Tailoring Rule has standing to challenge it — and that might be enough to make the issue en banc-worthy.
UPDATE: Nathan Richardson comments at Common Resources here.