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Oct. 5, 2009 by William Buzbee

Boxer-Kerry: Measures to Address Error and Illegality

This post is the fourth in a series from CPR Member Scholars examining different aspects of the Boxer-Kerry bill on climate change, which was released September 30

The Boxer-Kerry bill released on September 30, 2009 is yet another massive piece of proposed legislation. And it is likely to get even larger as details are added regarding distribution of pollution allowances, and as other gaps and shortcomings are addressed. Its basic architecture and enforcement provisions, however, give us a good feel for the bill’s basic functioning. It retains some of the best elements of the Waxman-Markey bill passed by the House and improves on others, but it leaves unresolved some fundamental choices that could lead to implementation uncertainties down the road. In particular, this analysis will focus first on error risks, especially on the extent to which the bill allows for regulatory agencies to fix mechanisms in the bill that fail to perform, or adjust for assumptions that turn out to be wrong. This analysis will then look at federalism and enforcement provisions that are among the mechanisms that can keep an enacted climate bill on track and also help address shortcomings in the law’s accomplishments. 

A pervasive challenge …

April 10, 2009 by William Buzbee
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On Tuesday, March 31, House Energy and Commerce Committee Chairman Henry Waxman (D-CA) and Rep. Edward Markey (D-MA) released a "discussion draft" of the American Clean Energy and Security Act of 2009 -- a climate change bill that will serve as the starting point for long-delayed congressional action on the world's most pressing environmental program. CPRBlog asked several Center for Progressive Reform Member Scholars to examine different aspects of the 648-page Waxman-Markey bill. This entry, by William Buzbee, examines if the bill would preempt state laws.

In the Waxman-Markey bill, as in any proposed federal legislation, a key question concerns the ongoing role of the states. States have long played positive, cooperative and often innovative roles in working to accomplish environmental goals. But state activism is not met with universal applause. In the climate change area, as in other environmental law areas, one of the motivations for …

March 10, 2009 by William Buzbee
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On March 3rd, the Supreme Court issued its much awaited decision in Summers v. Earth Island Institute.  This was the latest in a series of cases dating to the early 1990s where the central question has concerned citizen standing: will the courts allow a citizen to stand before a court to argue that government or private action violates the law?

 

In Summers, the environmentalists' challenge involved a few layers. The real legal challenge raised by the environmentalists was to regulations issued by the US Forest Service that largely eliminated opportunities for utilization of a notice, comment, and appeal process for actions designated by the Forest Service as small in size and therefore categorically exempt from these regulatory challenges ordinarily available for larger scale projects. The challengers asserted that these regulations violated statutory requirements. The challengers used a particular project, the Burnt Ridge Project in the Sequoia Forest …

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