Environmental protection

  • June 29, 2015
    Guest Post

    by Lisa Heinzerling, the Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center

    In Michigan v. EPA, the Supreme Court reviewed the Environmental Protection Agency's decision to regulate power plants under section 112 of the Clean Air Act. Section 112 is the provision regulating toxic air pollutants, such as mercury. The question before the Court was whether EPA reasonably interpreted the Clean Air Act to allow EPA to decline to consider costs in deciding whether to regulate power plants under section 112. The Court held that it was not reasonable to interpret the Act in this way. Thus, from the Court's decision, we know that EPA must consider costs in deciding whether to regulate power plants under section 112. There are, however, important questions that remain:

    1. We do not yet know what happens to EPA's rule while EPA does the analytical work the Court has required of it. The Supreme Court reversed the judgment of the D.C. Circuit and remanded the case for further proceedings consistent with its opinion. The case will go back to the D.C. Circuit for it to figure out how to address the Supreme Court's ruling. Certainly the case will eventually have to return to EPA; the D.C. Circuit itself will not attempt to undertake the consideration of costs the Supreme Court has ordered. But what happens between the time the case goes back to EPA and the time EPA makes a decision in light of the Supreme Court's ruling? That depends on the D.C. Circuit. The court will need to decide whether to remand or to vacate and remand; that is, whether to simply send the matter back to EPA while leaving the rule in place, or undo the rule in the interim. The D.C. Circuit has lately remanded quite a few agency rules, especially environmental rules, without vacating them. Given the amount of discretion left to the agency by the Supreme Court's decision (see below), and the fact that EPA has previously stated that the rule is justified even in light of its costs, I believe there is a strong case for remand without vacatur.

    2. We do not yet know how EPA will or should take costs into account in revisiting the issue of whether to regulate power plants under section 112. The Court left this matter to EPA, with the qualification that the agency's treatment of costs must be, "[a]s always, within the limits of reasonable interpretation." The Court emphasized that it was not holding that the agency must conduct "a formal cost-benefit analysis in which each advantage and disadvantage is assigned a monetary value." Beyond that, the Court gave little hint of the kind of analysis it would approve. At times, it seemed to be looking for a judgment about whether costs were disproportionate to benefits; at other points, it seemed to highlight cost-effectiveness analysis. These are different inquiries, and it will now be up to EPA – at least in the first instance – to decide which of several cost-sensitive frameworks to use. My sense from the Court's opinion is that as long as EPA considers costs in some fashion, whether through formal cost-benefit analysis or something far more qualitative, it will be sufficient.

    3. We do not yet know which benefits EPA may consider for purposes of the additional analysis the Court has required. Although EPA conducted a formal cost-benefit analysis of the rule for purposes of White House regulatory review, and that analysis included billions of dollars in "ancillary" benefits due to reductions in air pollutants not covered by the air toxics program, the Court did not decide whether these ancillary benefits may be included in the analysis yet to come. That is, the Court said, "a point we need not address." Several justices seemed skeptical of these benefits at oral argument, and there is some (small but discernible) textual basis for excluding them. A number of commentators have argued that EPA must be able to consider such benefits because they are included in standard economic practice and because an OMB circular on cost-benefit analysis, dating from the George W. Bush administration, admits them in the cost-benefit framework. I don't think economic practice and an OMB circular will decide this question, but I do think it would be quite aggressive for a court to tell EPA which regulatory benefits count.

  • June 3, 2015
    Guest Post

    by David R. Baake, Ford Foundation Post Graduate Fellow and Associate Advocate, Natural Resources Defense Counsel.

    Last June, the Environmental Protection Agency (EPA) proposed the Clean Power Plan, an initiative to cut carbon pollution from the power sector by 30 percent from 2005 levels. By any metric, the Clean Power Plan is smart policy. The Plan puts the United States on track to cut carbon pollution by 730 million metric tons, an amount equal to the annual emissions of 150 million cars. It is the centerpiece of the United States’ effort to meet its commitments under the historic U.S.-China climate accord, and it will allow the United States to assume a leadership role in the international negotiations for a universal climate agreement set to conclude in Paris this December. It will prevent thousands of premature deaths (by reducing emissions of smog, soot, and other dangerous pollutants), create tens of thousands of new jobs, and save consumers money on their electric bills. All told, the Plan is expected to create tens of billions of dollars in net benefits for the United States.

    Even so, the Plan will engender a fierce, protracted legal battle (as many of President Obama’s other major domestic initiatives have). Industry groups, together with states that are opposed to greenhouse gas regulation, have promised to use every legal device at their disposal to “gum up the works” for EPA, and judging by the five challenges they have already filed to EPA’s proposed rules, this is a promise they intend to keep.

    EPA’s opponents have developed a host of colorful legal arguments as to why the Clean Power Plan must be rejected in its entirety. But most observers expect the fate of the Plan to turn on a single issue: whether EPA may establish emission goals based on measures such as renewable energy and demand-side energy conservation that are implemented “beyond the fenceline” of regulated power plants. I take up this issue in a forthcoming comment in the Environmental Law Reporter.

  • April 30, 2015
    Guest Post

    by Justin Pidot, Assistant Professor, University of Denver Sturm College of Law; Member, Board of Directors, ACS Colorado Lawyer Chapter; Faculty Advisor, University of Denver Sturm College of Law ACS Student Chapter.

    With Michigan v. EPA, the Supreme Court continues its tradition of reviewing the Environmental Protection Agency’s efforts to regulate under the Clean Air Act. Last year, the Court considered, and partially invalidated, a rule regulating greenhouse gas emissions. This year, the Court considers a rule EPA issued to reduce mercury and other hazardous air pollutants from power plants ― which we have long recognized release significant amounts of heavy metals and other toxins into the air.

    In 1990, Congress gave EPA the task of studying hazardous emissions from power plants and deciding whether to regulate those emissions to protect public health. Twenty-five years later, EPA finally decided to take up this task. A coalition of states and industry groups challenged EPA’s regulation.

    The Supreme Court heard oral argument in the case brought by that coalition on March 25, 2015, and it will likely release a decision within about a month.  Several commenters, like Lyle Denniston at SCOTUSblog and Catherine O’Neill at CPRBlog, have suggested that the outcome is difficult to predict, although a slight majority of participants in “Fantasy SCOTUS,” a platform that allows individuals to predict the outcomes of Supreme Court cases, believe that EPA will win.

    After reading the transcript of the argument, I am left feeling pessimistic for EPA. While the outcome of the case is far from clear, my sense is that the power industry may continue to evade regulation for a while longer.

  • April 24, 2015
    Guest Post

    by Meredith Wilensky. Wilensky was the 2013-2014 associate director and fellow at Columbia Law School's Sabin Center for Climate Change Law. She currently clerks for Judge Claudia Wilken of the Northern District of California.

    The Trans-Pacific Partnership Trade and Globalization Agreement (TPP) is currently being negotiated by 12 Pacific Rim countries: Australia, Brunei, Canada, Chile, Japan, Malaysia, Mexico, New Zealand, Peru, Singapore, the United States and Vietnam. The Obama Administration maintains that it will promote strong environmental protection in the TPP and “insist on a robust, fully enforceable environment chapter.” To that effect, the United States is advocating that the agreement include commitments to effectively enforce domestic environmental laws and provisions to address wildlife trafficking, illegal logging and illegal fishing practices.

    A strong environment chapter is an admirable goal, but it does not discount the potential threats to the environment posed by other chapters of the agreement, especially the investment chapter.  Modern international investment agreements (IIAs) impose standards of conduct on host countries in their dealings with foreign investors. For example, expropriation provisions require governments to compensate for all takings and “Fair and Equitable Treatment” obligations set a minimum standard of treatment for all foreign investors.  While these provisions are intended to ensure fair and ethical dealings with foreign investors, they can have sweeping repercussions for host states’ environmental policy.

    Investor protection provisions are particularly powerful because they are usually accompanied by an investor-state dispute settlement (ISDS) mechanism, which permits aggrieved investors to initiate arbitration in ad hoc international tribunals for compensation of losses that the tribunals find have arisen from the host country’s violation of the investor protection provisions. Under preexisting IIAs, investor protection provisions have been interpreted broadly to require compensation for a number of actions taken by governments to protect the environment and public health.

  • April 22, 2015
    Guest Post

    by David M. Driesen, University Professor, Syracuse University College of Law

    On April 21, 2015, I filed an amicus brief in the U.S. Court of Appeals for the Tenth Circuit on behalf of a group of constitutional law professors defending the constitutionality of an Endangered Species Act (ESA) rule protecting the Utah prairie dog.  As mentioned in a previous post, this case focuses on a federal district court ruling striking down the prairie dog rule on the ground that the rule is “non-economic” and has only a tenuous link to interstate commerce.  Simply put, if the Tenth Circuit upholds this ruling, it could lead to a significantly adverse impact on the ESA, as nearly 70 percent of all protected species reside intrastate.  It would further cause a split in the circuits, potentially giving rise to review by the Supreme Court.            

    The brief’s primary contribution to the Tenth Circuit’s deliberations involves fleshing out the concept of “economic activities” under United States v. Lopez and United States v. Morrison, and developing its implications for this case.  Both of these Supreme Court cases struck down federal statutes regulating ordinary criminal activity, emphasizing that those activities were not “in any sense” economic.  On the other hand, the Lopez Court reaffirmed a long line of cases upholding statutes regulating economic activities.