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Sept. 14, 2011 by David Driesen

The Ozone Standard as Presidential Policy: Some Concerns

Cross-posted from RegBlog.

As Stuart Shapiro recently pointed out in a RegBlog post, President Obama himself made the decision a week ago to withdraw the U.S. Environmental Protection Agency’s (EPA’s) ozone National Ambient Air Quality Standard (NAAQS). Presidents have occasionally acted to resolve disputes between the White House Office of Information and Regulatory Affairs (OIRA) and EPA before, but typically OIRA acts in the President’s name without knowing exactly what he thinks about the regulatory details that OIRA negotiates with EPA. Stuart Shapiro also correctly points out that the President’s substitution of his general policy judgment for a judgment of an agency charged by Congress with the responsibility to implement a statute’s policy has implications for administrative law.

Obama’s withdrawal of the ozone NAAQS shows why these implications should trouble everybody, even those who do not like the Clean Air Act’s policy of basing the NAAQS on health considerations alone, leaving cost for later consideration in formulating plans to meet the NAAQS. Many Americans still believe that the “rule of law not men” embedded in our Constitution should mean something. There is some wisdom in this idea. Enacted law, however imperfect, can …

March 24, 2010 by David Driesen
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Last week, Senators Kerry, Graham, and Lieberman (KGL) reportedly released an 8-page outline for a bill mitigating climate disruption that they are crafting in order to try to break the deadlock that has heretofore blocked legislation in the Senate. ClimateWire reported that the KGL bill would incorporate ideas from the bill introduced by Senators Maria Cantwell (D. Wash.) and Susan Collins (R. Maine), the Carbon Limits and Energy for America’s Renewal (CLEAR) Act. That incorporation might be a good thing, because CLEAR contains several great ideas.

Last year, Amy Sinden and I characterized the idea of Dirty Input Limits (DILs), limits on inputs causing pollution rather than pollution itself, as the “missing instrument” in environmental law. We used the idea of creating a tradable permit market from limits on fossil fuel production and imports as an illustration of the potential of this instrument, which has been …

Sept. 17, 2009 by David Driesen
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Cap-and-trade legislation making its way through Congress has become enormously complex, embodying a host of arcane political deals governing the distribution of the vast majority of emissions allowances being given away for free, with crucial details being left to EPA. This complexity threatens to hinder the effort to address climate disruption (see my article Capping Carbon). It would lead to long delays and weak implementation, just like other laws delegating a lot of controversial and litigable decisions to administrative agencies. Delays and weakness could prove disastrous in the climate disruption context, because greenhouse gas emissions have already warmed the planet and gases emitted while implementation flounders can create irreversible and potentially catastrophic ecological problems. Auctioning of 100% of the allowances would make the program run smoothly.

The Regional Greenhouse Gas Initiative—a cap-and-trade program that regulates utility emissions in the northeastern states— has relied on auctioning nearly …

April 29, 2009 by David Driesen
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A coalition of conservative and moderate Democrats has recommended deleting section 336 of the Waxman-Markey climate change bill because of “concern among industry about potential new liability for any emitter” under that provision (see the proposed amendments). Some polluters' objective, apparently, is to avoid liability for violating the law, and they recommend this deletion as a step toward accomplishing that goal.

But section 336 does not create any liability, new or old. Section 723 of the Waxman-Markey bill does that, quite appropriately, by establishing penalties for failure to meet targets or purchase sufficient allowances. And the liability in this other section does not apply to “any emitter,” but only to emitters that violate the law by failing to reduce greenhouse gas emissions.

The whole notion that new obligations should create no new liability for violators, if accepted, would convert this bill from a mandatory cap and trade …

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