CPR Archive for Daniel Farber

Foreseeable Yet Lamentable: Pruitt's Attack on Carbon Restrictions

by Daniel Farber | October 10, 2017

An earlier version of this post appeared on Legal Planet.

Few things were more foreseeable than the Trump administration's repeal of the Clean Power Plan (CPP). The administration was never going to leave in place a regulation that disfavored coal and promoted the use of renewable energy in electricity generation. The only real questions were when and how.

Today, the administration is taking the first step with the release of a proposed rule repealing the CPP. EPA is relying wholly on the argument that it can interpret the statute in question (section 111(d) of the Clean Air Act) to cover only regulations within the fenceline of a power plant, not regulations that require the owner to obtain power from cleaner sources elsewhere.

The action is notable in part for what the agency did not do, some good and some bad. Here are some things that were discussed at some point within the administration but not ultimately undertaken:

  • Repealing the finding that greenhouse gases endanger public health and welfare by causing climate change. The Bannonites really wanted the agency to officially repudiate climate science.
     
  • Relying on a glitch in the statute's history to find that EPA has no power at all to regulate power plants. Industry pushed this argument hard during the litigation on the CPP.
     
  • Arguing that the statute unambiguously limits EPA to "within the fenceline" regulations like improving the efficiency ...

Under the Radar: What States Are Doing about Energy and Climate

by Daniel Farber | October 04, 2017
What happens in Washington gets a lot of attention. You probably also follow what's going on in your own state. But it's very hard to know what's happening in states across the country. In an effort to get a better sense of that, I've explored state activity on climate change and energy in a series of posts. This wasn't a fifty-state survey, or even a statistically valid random sample. But it does indicate what's happening in a range of states, ...

200 Days and Counting: Pollution and Climate Change

by Daniel Farber | August 11, 2017
Rolling back EPA regulations is one of the Trump administration's priorities. The most notable example is Obama's Clean Power Plan, which aimed to cut CO2 emissions from power plants. The other rule that has gotten considerable attention is the so-called WOTUS rule, which defines federal jurisdiction to regulate wetlands and watersheds. But these are not the only rules in the crosshairs. EPA has announced plans to reconsider a rule limiting emission of toxic substances from power plants, rules dealing with ...

Slowly and Grudgingly, Change Is Coming to Coal Country

by Daniel Farber | May 30, 2017
A sign of the times: Fox News has reported, without comment, that the Kentucky Coal Museum is installing solar panels to save money. This is part of a larger trend. On Saturday, the New York Times reported on shifts in power production in states like West Virginia and Kentucky. For instance, Appalachian Power has “closed three coal-fired plants and converted two others to gas, reducing its dependence on coal to 61 percent last year, down from 74 percent in 2012.” In response to an ...

Whither WOTUS?

by Daniel Farber | May 24, 2017
President Trump ordered EPA and the Army Corps to review the Obama Administration’s Waters of the United States (WOTUS) rule, which sets expansive bounds on federal jurisdiction over water bodies and wetlands. The agencies have sent the White House a proposal to rescind the WOTUS rule and revert to earlier rules until they can come up with a replacement. In my view, either the agencies will have to dive deep into the scientific thicket in the hope of justifying a new ...

Thinking Globally, Acting Transnationally

by Daniel Farber | May 12, 2017
The U.S. government obviously isn't going to be taking a global leadership role regarding climate change, not for the next four years. At one time, that would have been the end of the story: the only way to accomplish anything internationally was through national governments. But we live in a different world today, and there are other channels for international action against climate change. Today, transnational networks of state and local governments, private firms, and NGOs are actively addressing climate ...

Is Texas Cleaning Up Its Act?

by Daniel Farber | February 21, 2017
At a national meeting of state utility regulators, the head of the group recently said that the Clean Power Plan was basically dead, but this might not matter because "arguably, you're seeing market-based decarbonization" due to technological changes. Case in point: Texas. Market trends are pushing Republican stronghold Texas toward a cleaner grid. ERCOT, which operates nearly all of the state's grid, recently projected that in the next fifteen years, Texas will add almost 20 gigawatts of solar, equivalent to 15-20 ...

The Owls in the Vineyard

by Daniel Farber | January 19, 2017
It's smart to take precautions against climate change. More can be done, even in the Trump era. At night, you can hear the hooting of owls in the vineyard. The owners have deployed owls and falcons to control the pests that threaten the Kendall Jackson vineyards due to milder winters. But birds of prey aren't the only things flying above the vineyard. There are also drones, which are used to observe small differences in the color of the vines that ...

A Win-Win Energy Law in Illinois

by Daniel Farber | January 11, 2017
It went pretty much unheralded by the national media, but in December, Illinois adopted a major new energy law – and with strong bipartisan support. Each side had some things to celebrate. Republican Governor Bruce Rauner touted the impact of the law on utility bills. According to the governor, the law "contains a guaranteed cap that energy prices cannot increase more than 25 cents on the average residential home, and cannot increase more than 1.3 percent on commercial and industrial ...

GOP Mayor: Let's Talk About the Octopus in the Room

by Daniel Farber | December 19, 2016
Jim Cason, the GOP mayor of Coral Gables, Florida, wants us to talk about climate change: "'We're looking to a future where we're going to be underwater, a great portion of South Florida,' Cason said. 'For all of us down here, this is really not a partisan issue. We see it. We see the octopus in the room, not the elephant.'" (E&E News) An octopus in the room? It's a striking image. If you're wondering what prompted that unusual metaphor, Rob Verchick ...

The New NEPA Guidance

by Daniel Farber | August 04, 2016
The White House Council on Environmental Quality (CEQ) issued new guidance this week on considering climate change in environmental impact statements (EIS). Here are the key points: Quantification. The guidance recommends that agencies quantify projected direct and indirect emissions, using the amount of emissions as a proxy for the eventual impact on climate change. The EIS should also discuss the impacts of climate change, referring to government reports on the subject for conclusions. A formal cost-benefit analysis is not required ...

Statutory Standing After the Spokeo Decision

by Daniel Farber | June 21, 2016
One of the recurring questions in standing law is the extent to which Congress can change the application of the standing doctrine. A recent Supreme Court opinion in a non-environmental case sheds some light – not a lot, but some – on this recurring question. The Court has made it clear that there is a constitutional core of the doctrine with three elements: a concrete injury in fact, a causal link between the injury and the defendant's conduct, and a ...

The Road to Improved Compliance

by Daniel Farber | June 09, 2016
As I wrote earlier this week, environmental enforcement is not nearly as effective as it should be. EPA and others have been working on finding creative ways of obtaining compliance, often with the help of new technology. One aspect of enforcement that has become clear is the need to focus on small, dispersed sources that may cumulatively cause major problems. EPA has focused its past efforts on the largest non-complying facilities. But EPA has found serious noncompliance in terms of ...

Strong Regs, Spotty Enforcement

by Daniel Farber | June 06, 2016
The political debate over regulation tends to focus on the regulations themselves. But enforcing the regulations is just as important. Despite what you might think from the howls of business groups and conservative commentators, the enforcement system is not nearly as strong as it should be. Twenty years after passage of the Clean Water Act, roughly ten thousand discharges still had no permits whatsoever, 12-13 percent percent of major private and municipal sources were in a "Significant Noncompliance" status during ...

The Misleading Argument Against Delegation

by Daniel Farber | May 03, 2016
It's commonplace to say that agencies engage in lawmaking when they issue rules. Conservatives denounce this as a violation of the constitutional scheme; liberals celebrate it as an instrument of modern government. Both sides agree that in reality, though not in legal form, Congress has delegated its lawmaking power to agencies. But this is mistaking an analogy for an identity. It's true, of course, that Congress has given agencies the authority to make rules, which is one aspect of legislative ...

The Next Justice and the Fate of the Clean Water Act

by Daniel Farber | April 05, 2016
Every once in a while, we get reminded of just how much damage the conservative Justices could wreak on environmental law. Last week, Justice Kennedy created shock waves with a casual comment during oral argument. In a case that seemed to involve only a technical issue about administrative procedure, he dropped the suggestion that the Clean Water Act just might be unconstitutionally vague. It didn't seem to faze him that such a ruling would wipe out a statute that has been on ...

Green Patches Deep in the Heart of Texas

by Daniel Farber | March 28, 2016
The Texas AG’s office seems to do little else besides battle against EPA, and Texas Senator Ted Cruz is in the vanguard of anti-environmentalism. Yet even in Texas there are some rays of hope. While Texas is attacking the Clean Power Plan, the city of Houston is leading a coalition of cities defending it. Other cities are taking action for non-environmental reasons. The city of Georgetown, Texas, for instance, has announced plans to become 100 percent renewable. Lest there be any misunderstanding, the ...

A Sea Change in Climate Politics?

by Daniel Farber | March 21, 2016
There was a surprise question about climate change at the last Republican debate. What was surprising wasn’t the question itself. Instead, it was the source of the question: Tomás Regalado, the Republican mayor of Miami. It turns out that this wasn’t a fluke. Regalado and the Republican mayor of Miami Beach have spoken out in an op-ed about climate change: “The overwhelming scientific consensus is that the rising sea levels are caused by the planet warming, that the burning of ...

Also from Daniel Farber

Daniel A. Farber is the Sho Sato Professor of Law, Director of the California Center for Environmental Law and Policy, and Chair, Energy & Resources Group, University of California, Berkeley.

200 Days and Counting: Pollution and Climate Change

Farber | Aug 11, 2017 | Environmental Policy

Slowly and Grudgingly, Change Is Coming to Coal Country

Farber | May 30, 2017 | Climate Change

Whither WOTUS?

Farber | May 24, 2017 | Environmental Policy

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