CPR Archive for Daniel Farber
The New NEPA Guidance
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 and should not be used when aspects of the project can't be quantified.
- NEPA Thresholds. The draft guidance contained numerical thresholds at which carbon emissions would be considered significant enough to trigger the need for a full-scale environmental impact statement. Disappointingly, those have disappeared from the final version. The final guidance says that "most Federal agency actions" won't require an EIS solely because of carbon emissions, because it would be unreasonable to do so for every federal action that results in any emissions at all. The implication is that high emissions might be enough, but there's no hint about how high that would be. In other words, how high is high?
- Impacts of Climate Change on the Project. Agencies should consider how climate change could affect the project itself, and should avoid building in floodplains. They should also consider how the project would affect "climate change preparedness or resilience." The effects of climate change on
Statutory Standing After the Spokeo Decision
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
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
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
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
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
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?
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
Environmental Enforcement in the Age of Trump
Many thought that the BP Oil Spill would lead to new environmental legislation, as happened after past environmental disasters. That didn’t happen. But something else did happen: BP paid $24 billion in civil and criminal penalties. In an era where any effort at government regulation is immediately denounced as a dire threat to liberty, there was nary a peep out of Republican politicians about these massive penalties. Nor do I hear Trump, Cruz, or Rubio defending Volkswagen from penalties. The moral is
Roberts Denies Mercury Stay
Chief Justice Roberts turned down a request this morning to stay EPA’s mercury rule. Until the past month, this would have been completely un-noteworthy, because such a stay would have been unprecedented. But the Court’s startling recent stay of the EPA Clean Power Plan suggested that the door might have been wide open. Fortunately, that doesn’t seem to be true. In some ways, a stay in this case would be even more shocking than the earlier one. Only the states, not industry, were
Unleashing the Lower Courts
There’s already been a lot written about how Justice Scalia’s untimely death will affect pending cases, not to mention speculation about the possible nominees to replace him. Less attention has been given to the effect on the lower courts. Yet Justice Scalia’s departure gives liberal judges in lower courts more freedom than they’ve had in the past. Here, I’m specifically thinking of the D.C. Circuit and the Ninth Circuit, which between them are the most important forums for environmental litigation.
Justice Scalia and Environmental Law
Scalia's decisions were almost unremittingly anti-environmental. Over the past three decades, Justice Scalia did much to shape environmental law, nearly always in a conservative direction. Because of the importance of his rulings, environmental lawyers and scholars are all familiar with his work. But for the benefit of others, I thought it might be helpful to summarize his major environmental decisions. The upshot was to restrict EPA’s authority to interpret environmental statutes, make property rights a stronger bulwark against environmental protection,
Legacy Goods and the Environment
The value of some goods like wilderness today depends on their futures. Normally, economists imagine, equal experiences become less valuable as they recede further into the future. But some types of goods don’t have that kind of relationship with future experiences. They can become more valuable as they extend farther into to the future. Take this blog post, for example. I’m really happy that you’re reading it today. But it will be even cooler if someone reads it ten years
Key Environmental Developments Ahead in 2016
Here are seven of the most important developments affecting the environment. 2015 was a big year for agency regulations and international negotiations. In 2016, the main focal points will be the political process and the courts. Here are seven major things to watch for. The Presidential Election. The election will have huge consequences for the environment. A Republican President is almost sure to try to roll back most of the environmental initiatives of the Obama Administration, undoing all the progress that has been
Does the Paris Agreement Open the Door to Geoengineering?
If we're serious about keeping warming "well below" 2 degrees C, geoengineering may be necessary. The Paris agreement establishes an aspirational goal of holding climate change to 1.5 degrees C, with a firmer goal of holding the global temperature decrease “well below” 2 degrees C. As a practical matter, the 1.5 degrees C goal almost certainly would require geoengineering, such as injecting aerosols into the stratosphere or solar mirrors. Even getting well below 2 degrees C is likely to require
Law Schools Doing Good
How Law Schools Serve the Public Most people probably think of law schools, when they think of them at all, as places that train future lawyers. That’s true, and it’s important, but law schools do a lot more. Faculty scholarship makes a difference — law review articles laid the foundation for many of the ideas now guiding judges (both on the Right and the Left). But I’d like to focus here on another, more recent activity by law schools — the environmental
Addressing Externalities: A Modest Proposal
How to make health and safety a personal priority for industry officials. According to economists, firms have little reason to take into account the cost of externalities — that is to say, the harms their activities may impose on others. The traditional solutions are damage remedies or taxes to transfer the financial cost to the industry, or regulation to force industries to limit their harmful activities. Why not try a more direct solution? Why not require owners and managers to
Guess Who Benefits from Regulating Power Plants
The answer will surprise you. What parts of the country benefit most from the series of new EPA rules addressing pollution from coal-fired power plants? The answer is not what you think. EPA does a thorough cost-benefit analysis of its regulations but the costs and benefits are aggregated at the national level. In a new paper, David Spence and David Adelman from the University of Texas break down these figures on a regional basis. What they found may surprise you. In fact, the areas benefitting
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.
Farber | Aug 04, 2016 | Climate Change
Farber | Jun 21, 2016 | Access to the Courts
Farber | Jun 09, 2016 | Environmental Policy
Farber | Jun 06, 2016 | Environmental Policy
Farber | May 03, 2016 | Regulatory Policy