Misunderstanding the Law of Causation
Originally published on Legal Planet. Reprinted with permission.
Last week's NEPA proposal bars agencies from considering many of the harms their actions will produce, such as climate change. These restrictions profoundly misunderstand the nature of environmental problems and are based on the flimsiest of legal foundations.
Specifically, the proposal tells agencies they do not need to consider environmental "effects if they are remote in time, geographically remote, or the product of a lengthy causal chain." The proposal also excludes "cumulative effects." [85 FR 1708] Not coincidentally, all of these restrictions target climate change, which involves very long-term, global, complex, and cumulative effects.
These restrictions fly in the face of everything we know about harm to the environment. We know that harm is often long-term rather than immediately obvious – think of chemicals that cause cancer decades after exposure. We also know that environmental effects aren't limited to the immediate neighborhood – think of the fertilizer runoff in the Midwest that causes dead zones in the Gulf of Mexico. In ecology, causal chains are often complex, and the same is true for atmospheric physics and other parts of environmental science. And we also know that much damage to the environment is …
Originally published on Legal Planet. Reprinted with permission.
The White House just released its proposed revisions to the rules about environmental impact statements. The White House Council on Environmental Quality (CEQ) simply does not have the kind of power that it is trying to arrogate to itself. Its proposal is marked by hubris about the government's ability to control how the courts apply the law.
That hubris is evident in the proposal's effort to tell courts when lawsuits can be brought and what kind of remedies they can provide. For instance, it states that issuance or refusal to issue an impact statement does not trigger the right to go to court, that no claim can ever be raised in court unless it was first raised by the agency, and that lawsuits must be always be brought quickly. Some of these might be right, some might not be …
Originally published on Legal Planet. Reprinted with permission.
Australia is remarkably exposed to climate change and remarkably unwilling to do much about it. Conditions keep getting worse. Yet climate policy in Australia has been treading water or backpedaling for years, as I discussed in an earlier post.
Let's start with the temperature. The Guardian reports that in the year up to July 2019, Alice Springs (in the interior) had 55 days above 104°F. On New Year's Eve of 2018, it set a new record of 113°F. In December 2019, The Washington Post reported, temperatures soared to 104° (40° Celsius) in most of the nation's major cities, with inland areas of Victoria, New South Wales, and South Australia possibly eclipsing 122 degrees (50 Celsius). December 17, 2019, became the hottest day in Australian history, with an average high temperature across country of 105.6°. Two days …
As I noted in my last post, 2019 brought a number of worrisome developments in regulatory policy. There were a few bright spots – most notably the positive attention public servants received for holding the Trump administration accountable. But, by and large, the most significant regulatory policy stories reflected the conservative movement’s successes in weakening the regulatory system. As a result, the threat to the future vitality of our system of safeguards – which we depend upon for our health and safety, the vitality of our economy, and the future of our planet – has never been greater. Here, in no particular order, are ten stories I will be following over the next year that could determine whether we will still have a regulatory system that is strong enough to promote fairness and accountability by preventing corporations from shifting the harmful effects of their activities onto innocent …
Reposted by permission from LegalPlanet.
“It was the best of times; it was the worst of times.” That pretty much sums up the ten years from January 2010 to January 2020.
As the decade began, Barrack Obama was in the White House and the Democrats controlled Congress but were one vote short of a filibuster-proof majority in the House. Under Nancy Pelosi’s leadership, the Waxman-Markey bill had passed the House, but it never made it to a vote in the Senate. When the Democratic majority in the House was swept away in the 2010 elections, any possibility of federal climate legislation died for the rest of the decade.
The failure of climate legislation highlighted the importance of administrative action. In August 2012, following up on an early agreement with carmakers, the government issued a rule imposing an aggressive plan to reduce greenhouse gas emissions from vehicles …
For many of us, the best way to characterize the past year in three words would be “too much news.” That sentiment certainly applies to the wonky backwater of the regulatory policy world. Today, that world looks much different than it did even just a year ago, and with still more rapid changes afoot, the cloud of uncertainty that now looms ominously over it doesn’t appear to be dissipating anytime soon. None of this is good for the health of our people, our democracy or our economy, and it’s certainly not good for the millions of working families struggling to keep their heads above water between paychecks.
Here, in no particular order, are 10 of the biggest developments from the past year that have contributed to this disquieting state of affairs.
- Nondelegation bullet dodged – for now. The case, Gundy v. United States, presented as clear …
Reposted by permission from the Environmental Law Prof Blog.
This morning E&E News reported that researchers from the Netherlands and the Environmental Defense Fund had quantified a massive natural gas leak at an Exxon-subsidiary-owned well in Ohio. According to the study, the well leaked around 60,000 tons of methane.
That made me wonder: what might the carbon tax bill for a leak like that be? The answer, of course, is $0, because neither the United States as a whole nor the state of Ohio has a carbon tax (or a cap-and-trade system that would also put a price on carbon). But what if we did, and what if the tax rate approached the social cost of carbon? How much would that one leak cost Exxon (and, of course, put into the United States treasury, for the benefit of the public)?
A rough answer is very simple …
Last week, my CPR colleagues and I were honored to be joined by dozens of fellow advocates and member of the press for a webinar that explored the recent CPR report, Regulation as Social Justice: A Crowdsourced Blueprint for Building a Progressive Regulatory System. Drawing on the ideas of more than 60 progressive advocates, this report provides a comprehensive, action-oriented agenda for building a progressive regulatory system. The webinar provided us with an opportunity to continue exploring these ideas, including the unique potential of the regulatory system as an institutional means for promoting a more just and equitable society.
Few organizations better illustrate this potential better than the Louisiana Bucket Brigade, so we were delighted to be joined at the top of the webinar by the organization's Founding Director, Anne Rolfes. Anne vividly described the work that the Louisiana Bucket Brigade is doing, empowering members of the …
Originally published on Legal Planet. Reprinted with permission.
Despite the efforts of the Trump administration, renewable energy has continued to thrive. Key states are imposing rigorous deadlines for reducing power generation from fossil fuels. Economic trends are also supporting renewables. In the first half of 2019, Texas produced more power from renewables than coal.
Texas may be content to rely on market forces, but other states are taking a more active hand in shaping their energy futures. Here are the new renewable energy mandates and targets of 2019:
- In January 2019, the District of Columbia increased its RPS target to 100 percent renewable electricity sales by 2040.
- New Mexico mandated 100 percent zero-carbon electricity by 2045, up from the previous target of 20 percent renewable generation by 2020.
- Maine adopted a 100 percent target for 2050.
- Maryland increased its target to 50 percent of electricity sales from …
Originally published on Legal Planet. Reprinted with permission.
The idea of low-hanging fruit is ubiquitous in environmental policy – sometimes in the form of a simple metaphor, other times expressed in more sophisticated terms as an assumption of rising marginal costs of pollution reduction. It's an arresting metaphor, and one that can often be illuminating. But like many powerful metaphors, it can also mislead us badly.
The idea behind the metaphor can be expressed in various ways, which can be equally arresting for those attuned to them. The same idea can be incorporated into graphs showing the cost of additional pollution reductions rapidly rising as the level of removal increases. If you google something like "marginal costs pollution reduction," graphs like that will pop up immediately along with verbal statements of the same concept. Combined with the assumption that the harm done by a unit of pollution …
