Daniel Farber on CPRBlog {Bio}
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The Death of Deference?

Yesterday, the Supreme Court granted cert. in several cases to hear the following question:

“Whether the Environmental Protection Agency unreasonably refused to consider costs in determining whether it is appropriate to regulate hazardous air pollutants emitted by electric utilities.”

The fundamental issue is whether it was unreasonable for EPA to interpret section 112 to preclude consideration of cost at this particular stage of the regulatory process — not only different from what the Court thinks is the best interpretation, but a position that no reasonable person could take.  The Supreme Court and lower courts have rarely found agency interpretations unreasonable in cases where the statute was ambiguous.  This is called the Chevron Step 2 analysis, while deciding whether the statute is ambiguous is called Chevron Step 1.  The rationales for the Chevron doctrine are that Congress meant agencies to work out statutory ambiguities and that it is better for politically accountable members of the executive branch to do that, as opposed to federal judges with lifetime appointments.

 

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Lessons From an Epidemic

Ebola’s natural reservoirs are animals, if only because human hosts die to too quickly. Outbreaks tend to occur in locations where changes in landscapes have brought animals and humans into closer contact.  Thus, there is considerable speculation about whether ecological factors might be related to the current outbreak. (See here).  At this point, at least, we don’t really know.  Still, it’s clear that outbreaks of diseases like ebola strengthen the case for forest conservation.  Which is also, obviously good for the environment.  But that’s not what I want to focus on here.

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A Blow to Public Interest Litigation

A Texas judge's award of attorney fees is a threat to all public interest groups, liberal or conservative.

A couple of weeks ago, a federal district judge in Texas awarded over $6 million in attorneys’ fees against the Sierra Club.  Sierra Club had survived motions to dismiss and for summary judgment, only to lose at trial. The court awarded fees on the ground that the suit was frivolous. The combination of rulings — denying summary judgment but then calling a lawsuit frivolous  — is virtually unheard of, at least in the absence of perjury by a witness or document tampering.  It’s hard to account for this peculiar ruling unless the judge was just cranky due to the summer heat in Waco.

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FDA Discretion and Animal Antibiotics

FDA has stalled for 30 years in regulating antibiotics in animal feed. A court says that's O.K.

The FDA seems to be convinced that current use of antibiotics in animal feed is a threat to human health. But the Second Circuit ruled recently in NRDC v. FDA that EPA has no duty to consider banning their use.  That may seem ridiculous, but actually it’s a very close case legally.  The court’s discussion of Massachusetts v. EPA as an administrative law precedent should be especially interesting to environmental lawyers.

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Today's Supreme Court Ruling: Three Key Questions

Direct implications are limited, but we'll be reading the tea leaves for future implications.

Scholars, lawyers, and judges will be spending a lot of time dissecting today’s ruling.   Overall, it’s a bit like yesterday’s World Cup game — EPA didn’t win outright but it didn’t lose either.

Here are three key questions with some initial thoughts:

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Does OIRA Live Up to Its Own Standards?

OIRA should conduct a cost-benefit analysis of its own activities and explore alternatives to its current oversight methods.

A White House office called OIRA polices regulations by other agencies in the executive branch.  OIRA basically performs the role of a traditional regulator – it issues regulations that bind other agencies, and agencies need OIRA approval before they can issue their own regulations.  Essentially, then OIRA regulates agencies like EPA the same way that those agencies regulate industry.  Issuing regulatory mandates and permits is a very traditional form of regulation, often called command and control.

There are a number of well-known criticisms of command-and-control regulation for being “one size fits all,” too rigid, unable to take advantage of information held by the regulated entities, and economically inefficient.  One might predict that OIRA’s own regulations would suffer from similar flaws.  To the extent that OIRA is trying to overcome these problems in other agencies, it might do well to reexamine its own activities applying the same standards.

OIRA pushes agencies toward greater consideration of the costs of their mandates and toward consideration of alternatives to command and control.  But maybe OIRA should turn some of its scrutiny inward to see how well it lives up to its own goals in its activities.

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The Legal Basis for the 111(d) Rules

Megan Herzog has done a great job of explaining the background of the rules and summarizing the proposal in her blog posts.  I just wanted to add a quick note about how EPA has structured its rules in light of possible legal challenges.  The fundamental issue facing EPA is how to define the “best system” for reducing carbon emissions.  Is it limited to technological upgrades at individual emitters?  Or can it be broader, and if so, how broad?  Industry is sure to argue that EPA can only set standards for individual plants that emit carbon, nothing more.

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The Lost World of Administrative Law

The regulatory process has become more opaque and less accountable. We need to fix that.

Every year, thousands of law students take a course in administrative law.  It’s a great course, and we wish even more students took it.  But there’s a risk that students may come away with a vision of the regulatory process that is increasingly disconnected with reality.  Worse, the leading judicial opinions on the subject suggest that judges may suffer from a similar disconnect.

The Administrative Procedure Act is based on the premise that Congress delegates the power to address a problem to an agency, which then applies the statute to formulate a regulation.  Policy is driven by the statute along with the views of the agency head, who is appointed by the President and confirmed by the Senate.  But the realities are often different.  Policy is often driven, not so much by Congress, as by Presidential orders requiring the use of cost-benefit analysis.  The final decision about whether to regulate, and even the details of the regulation, may be decided by a White House office called OIRA.  The head of the agency is frequently a temporary appointee, generally a lower level agency official who may not have much clout within the executive branch.  The regulatory system as it actually operates is much different from the world envisioned by administrative law.

In a recent paperAnne Joseph O’Connell and I document this disconnect and discuss its consequences.  We think it likely that something like the current system will persist.  Administrative law aims to make the regulatory process more open and transparent, more faithful to statutory mandates, and more attentive to scientific expertise - all while respecting the primary role of the executive branch in issuing regulations.  To further these goals given current realities, OIRA process must become much more transparent and accountable.  Transparency will help ensure that an agency’s statutory mission and its scientific expertise don’t get submerged by OIRA staff who care only about their own policy goals and lack deep expertise.  Regardless of whether you share OIRA’s passion for cost-benefit analysis or revile it, we should all be able to agree on the need for improving the process.

This blog is cross-posted on Legal Planet.  

 
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Carbon responsibility - producers versus consumers

Has the U.S. "exported" its carbon emissions to China by relying on China to manufacture so many of our goods?  There seems to be growing support for the idea that carbon emissions should be tied to consumption of goods rather than their manufacture, as the NY Times reported recently.  There is a grain of truth to the idea.  But consumer responsibility should be considered secondary.  The primary responsibility rests with producers.

Most of the debate has been about climate change.  But it may be easier to think through the issue in a less contentious context.  Consider the problem of water pollution in the Mississippi River, which results in the infamous dead zone in the Gulf of Mexico.  Agricultural runoff in the Midwest is a big part of the problem.  A significant portion of the U.S. corn and soybean crops are exported to Asia.

Does this mean that Asians have a responsibility to help us solve our water pollution problem, maybe by paying Midwestern farmers to adopt more sustainable practices?  Have the Chinese "exported" their agricultural pollution problem to the U.S.?  This idea seems dubious.  It seems obvious that it is Americans who have the primary responsibility for reducing the water pollution caused by our own agriculture runoff, regardless of where the crops are sold. The same logic seems to apply to carbon emissions.

Some people might argue that the two situations aren’t comparable because of the economic disparity between the two countries.  But it’s not as if we’ve somehow forced the Chinese to produce cheap goods for us or blocked them from controlling their carbon emissions.  China is very much an autonomous actor into today’s world.

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Rethinking "adaptation"

 I’ve spent a lot of time and energy talking about the need to adapt to climate change, but I’ve also become increasingly uneasy about “adaptation” as a way to think about the situation.  One of the things I don’t like about the term “adaptation” is that it suggests that we actually can, at some expense, restore ourselves to the same position we would have been in without climate change.  For any given amount of climate change, we can do things that decrease the resulting harms (at a cost), but we can’t eliminate those harms.  Adapting to climate change is like “adapting” to a serious chronic disease — you can get by, with luck, but it’s still not like being healthy.

But there’s also an important conceptual issue.  The idea of adaptation assumes that the world will go along more or less as it always has, except that we’ll take some specific actions due to climate change to neutralize its effects. This makes sense if we think global warming is just a marginal change.  But given our current trajectory, climate change, adaptation, and mitigation may go beyond marginal impacts. Climate change may well have wide societal effects, and mitigation efforts themselves could be major enough to shift the economy.  Moreover, both mitigation efforts and actions to address climate-based risks will have environmental impacts of their own.  ”Adaptation” suggests a marginal quality to climate change that may be quite misleading.

 

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