It turns out there’s more than one way an offshore oil rig can kill a fish. Even when they’re not spewing oil into the ocean, oil rigs kill vast numbers of fish and other aquatic organisms in their daily operations by sucking them up into their cooling water intake systems, where they get squashed against screens and otherwise beat up by the mechanism. Power plants do it too, as does any industrial facility that circulates water for cooling. Congress recognized this problem four decades ago and so put a specific provision in the Clean Water Act directing the EPA to regulate cooling water intake structures. But there’s been a fight raging for years about just how EPA should carry out those responsibilities.
You may remember that the U.S. Supreme Court weighed in on this controversy last year in Entergy Corp. v. Riverkeeper, largely siding with industry to say that EPA could use cost-benefit analysis to set these regulations. Two weeks ago, the U.S. Court of Appeals for the Fifth Circuit weighed in as well, in a decision in ConocoPhillips, et al. v. EPA that essentially kicked another ball back into the Obama administration’s court. That might be good news for the fish, if the decision was simply left to Lisa Jackson’s EPA—the agency Congress entrusted with this responsibility in the first place. But with Cass Sunstein’s Office of Information and Regulatory Affairs (OIRA) likely to meddle in this rulemaking as it has in others, I’m afraid we may end up with a result that’s good for industry but bad for our already struggling aquatic ecosystems.
The Fifth Circuit’s ruling concerned the final “Phase III” of EPA’s regulation of cooling water intake structures, which applies to offshore oil rigs, small power plants and a bunch of other miscellaneous facilities. (Last year’s Supreme Court ruling was on Phase II—existing large power plants.) EPA’s approach to Phase III was a bit schizophrenic, which meant it had something for everyone to hate. In part of the rule, EPA declined to do cost-benefit analysis and imposed stringent requirements on new offshore oil rigs, which industry challenged. But in another part of the rule, relating to existing small power plants and manufacturers, EPA did do a cost-benefit analysis, and on that basis decided not to issue any regulation at all. Environmentalists challenged that part. In its decision two weeks ago, the Fifth Circuit rejected industry’s challenge and upheld the new facilities part of the rule, reiterating what the Supreme Court said clearly in Entergy—that EPA can but doesn’t have to use cost-benefit analysis when setting these regulations. As to the existing facilities portion of the rule, the court granted a joint motion by the EPA and the environmentalists to remand it back to the agency. That’s the ball that’s now in the Obama EPA’s court, along with the Phase II rule, which was remanded following the Supreme Court’s Entergy decision last year.
Full textWith characteristic audacity, the Wall Street Journal editorial page today is arguing against the precautionary approach to environmental policy that undergirds our system of environmental laws, even as the oil continues to gush into the Gulf of Mexico. Instead, they want to shift the burden of proof and only allow regulators to restrain corporate greed when the government can first quantify and monetize the environmental harm that will result and demonstrate that it outweighs the money to be made by taking environmental risks. The problem is, of course, that when you require cost-benefit analysis, the environment loses, because most of the values at stake on that side of the equation—human lives, air you can breathe, water you can swim and fish in—just can’t be measured in dollar terms.
The editorial writers of the Wall Street Journal lament that the disaster in the Gulf is causing a resurgence of the precautionary principle in environmental policy, which they claim was long ago “discredited” in favor of cost-benefit analysis. This battle is as old as the environmental movement itself. From the beginning, advocates of environmental protection have argued for a precautionary approach to environmental hazards, while industry has argued for cost-benefit analysis. But the Journal doesn’t quite get its history right. Despite the enormous amount of money they’ve put into this fight, industry hasn’t won—at least not yet.
Far from being “thoroughly discredited,” the precautionary principle is widely accepted throughout the world. It forms the basis for a whole host of international environmental treaties and agreements, including the Rio Declaration, negotiated by the first President Bush. And, as the Journal acknowledges, it undergirds the “architecture” of much of our domestic environmental law.
Full textCass Sunstein had barely begun settling in to his new position as Administrator of OMB’s Office of Regulatory Affairs (OIRA) in September, when OIRA released a draft of OMB’s 2009 Report to Congress on the Benefits and Costs of Federal Regulations. Today marks the deadline for submitting comments to OMB on the draft, and I joined CPR President Rena Steinzor and Policy Analyst James Goodwin in submitting comments.
We read this year’s report with interest, curious to see how the new administration would approach this annual ritual. While OIRA has in the past been a nerve-center of anti-regulatory ideology and the annual report a ritualized hymn to the virtues of cost-benefit analysis, we hoped Obama’s OIRA would use the annual report as an opportunity to fundamentally re-envision its mission – to perhaps re-invent itself as a resource providing positive and constructive assistance to the embattled, de-funded and demoralized federal agencies charged with protecting our health and environment.
Overall, we were disappointed. While this year’s report sanitized some of the more blatantly ideological material that had become a staple of past reports, the basic form and content of the report remain unchanged. It continues to waste inordinate time and resources on the inane and ultimately fruitless task of attempting to aggregate in dollar terms the overall costs and the overall benefits of dozens of regulations issued by a diverse array of federal agencies – rules that protect all sorts of intangible, non-market values: protecting the health of mothers and newborns, protecting endangered whale species, reducing respiratory and other health effects of ozone, reducing neurological damage to children. This year’s report concludes cheerily that the annual benefits of major rules issued by the federal government over the past ten were somewhere between $126 billion and $663 billion, while the annual costs of those regulations was just $51 billion to $60 billion. Phew! What a relief!
Full textImagine if the end of the world were coming and everyone was just too polite to talk about it. That’s been the eerie feeling I've gotten over the past eight months listening to the President talk about energy policy. Not wanting to be a downer, he couches his energy talk in positive spin: We’re going to invest in the new clean green economy, create jobs, sell American ingenuity and know-how around the world, and reduce our dependence on foreign oil. Missing is any mention of the reason we’re going to all the trouble of undertaking a vast and expensive transformation of our well-entrenched carbon economy in the first place: all those coal plants and gas guzzling cars threaten to end life as we know it on this planet (not my words – NASA climate scientist Jim Hansen’s). Just a minor detail – but one worth mentioning, perhaps?
It was refreshing, then, to hear President Obama acknowledge the real issue – that pesky little end-of-the-world problem – at a speech before the United Nations today. He talked about the stuff that’s been keeping climate scientists up at night for decades now: rising seas, storms and floods, drought and crop failure, families fleeing and becoming climate refugees, and the implications of all this for political stability and security around the world.
But then, he knew his audience. He was talking to a bunch of U.N. policy wonks to whom none of this was particularly surprising or controversial.
But he needs to do more. President Obama needs to use his gift for high-minded oratory and his bully pulpit to take the message to the American public.
Full textThe Supreme Court today upheld a decision from the Bush administration's EPA that was good for industry and bad for the environmental health of our rivers and estuaries. But the majority opinion by Justice Scalia was written narrowly in a way that gives the Obama administration the leeway to approach these kinds of decisions in a more productive way. I'm hopeful they will seize that opportunity and avoid using cost-benefit analysis to set environmental standards in this case and beyond. Full text
Center for Progressive Reform Member Scholar Amy Sinden blogs on proposed Executive Orders on climate change, from CPR's Protecting Public Health and the Environment by the Stroke of a Presidential Pen: Seven Executive Orders for the President's First 100 Days, issued November 11, 2008. Full text
Guest Blogger: Liz Borkowski