Environmental protection

  • November 18, 2011

    by Jonathan Arogeti

    “Cap and trade is not going to happen next year, or the year after that, … or the year after that,” recalled the former staff director and chief counsel for the House Select Committee on Energy Independence and Global Warming, paraphrasing President Obama’s forecast for climate change legislation following the 2010 midterm election.

    Gerard J. Waldron, now a partner at Covington & Burling, opened a recent ACS panel discussion, “Global Warming and Political Cooling,” with a reflection on the Obama administration’s efforts to combat this problem. In June 2009, the House passed the American Clean Energy and Security Act, which according to The New York Times was the first time either the House or the Senate had approved legislation “meant to curb the heat-trapping gases scientists have linked to climate change.” That summer’s apex of optimism only gave way to the “great failure” that was the 2009 United Nations Climate Change Conference. And by the following summer, the Senate still had not taken up the bill.

    Against this backdrop, environmental groups are looking to new local, state and regional legislative efforts along with enforcement of national legislation already on the books to combat climate change.

    Environment America, one such group, released a report on restoring “momentum in the fight against global warming.” According to its estimates, the United States could reduce emissions standards by as much as 20 percent by 2020 and 34 percent by 2030 by adopting clean energy policies that include increased CAFE standards.

    “Wherever we can get emissions reductions, wherever we can get them quickly, wherever the public support exists, we’re working to do that,” said Anna Aurilio, director of Environment America’s Washington, D.C. office. “We’re going to have to actually enact comprehensive climate legislation, but there is a ton of stuff we can do to reduce tons.”

    She points to these “incremental steps” that will bend the emissions curve downwards and ultimately allow this country to wean itself off of oil. “We’d like to live in communities where people’s houses use no net energy except for the energy that they produce themselves on site, where they can get to work or school or play through alternatives other than driving, and if they have to drive, that their car can plug into the solar panel on the roof.”

  • November 4, 2011
    Guest Post

    By William Funk, the Robert E. Jones Professor of Law at Lewis & Clark Law School and a Member Scholar of the Center for Progressive Reform. Together with two other law professors, Thomas McGarity of the University of Texas and Sandra Zellmer of the University of Nebraska, he has filed an amicus brief supporting respondents’ arguments against preemption. This is a cross-post from CPRBlog.

    On November 9 the Supreme Court will hear oral argument in National Meat Association v. Harris, wading once again into the mire of federal preemption. The National Meat case involves a California statute that prohibits the slaughter of non-ambulatory animals for human consumption and requires that non-ambulatory animals be immediately and humanely euthanized. A federal law, the Federal Meat Inspection Act (FMIA), thoroughly regulates, although one could question how strictly, the process of slaughtering animals for human consumption. It also contains an express preemption provision that prohibits states from making any “requirements within the scope of this chapter with respect to premises, facilities and operations of any establishment [subject to this chapter], which are in addition to, or different than those made under this chapter.” 21 U.S.C. § 678. But then it also provides that: “this chapter shall not preclude any State ... from making requirement[s] or taking other action, consistent with this chapter, with respect to any other matters regulated under this Act.” The National Meat Association filed suit for declaratory and injunctive relief against the California law as it applies to swine and the processing of pork, claiming that the California law is preempted by the federal law. The Ninth Circuit, in an opinion reflecting the inimitable style of Judge Alex Kozinski, held that the California law was not preempted. The court said that the California law merely identifies what animals may be slaughtered for human consumption, not how they are to be slaughtered. And the law’s provision requiring the euthanizing of non-ambulatory animals, the circuit court said, does not relate to the slaughtering of animals for human consumption.  The Supreme Court, against the advice of the Solicitor General, granted certiorari.

  • October 20, 2011
    Dispatches from America's Endangered Species Act
    Joe Roman

    By Joe Roman, a conservation biologist and author.

    Last month, Alaska solicited proposals to quantify the costs of protecting polar bears under the Endangered Species Act. The bear had been listed as threatened in 2008, the first species to be federally protected because of global warming.  Some Alaskans objected, afraid that listing would restrict drilling in the Beaufort and Chukchi Seas, where the bears have critical habitat. At first, the state bankrolled a public relations effort to overturn the listing, but when that effort failed, they looked to alternatives. Could they show that listing the polar bear came at too high a price?

    In my book, Listed: Dispatches from America’s Endangered Species Act, I discuss the tradeoffs involved in protecting rare and threatened species. Alaska’s solicitation is part of an unfortunate tradition that focuses solely on the costs of protecting species, rather than including the many benefits that can come from conservation. In the polar bear’s case, this may include ecotourism, of value to the state; the dependence of the Inuit on the bear for spiritual and physical sustenance; and the preservation of sea-ice habitat, which can benefit us all.

    Beyond these services is the value of conservation itself, whether it’s stewardship, the many people who are employed, or volunteer, to protect the bears, or the value of bequesting the bear to our grand children. And finally there’s the value we put on the very existence of the polar bear -- how much would we pay to keep the bear on earth, whether we or our offspring ever had a chance to see it or not?

  • June 27, 2011
    Guest Post

    By Rena Steinzor, President of the Center for Progressive Reform and Professor, University of Maryland School of Law

    A series of catastrophic regulatory failures in recent years has focused attention on the weakened condition of regulatory agencies assigned to protect public health, worker and consumer safety, and the environment. The failures are the product of a destructive convergence of funding shortfalls, political attacks, and outmoded legal authority, setting the stage for ineffective enforcement and unsupervised industry self-regulation. From the Deepwater Horizon spill in the Gulf of Mexico that killed eleven and caused grave environmental and economic damage, to the worst mining disaster in 40 years at the Big Branch mine in West Virginia with a death toll of 29, the signs of regulatory dysfunction abound. Peanut paste tainted by salmonella, lead-paint-coated toys, sulfur-infused Chinese dry wall, oil refinery explosions, degraded pipes at U.S. nuclear power plants: At the bottom of each well-publicized event is an agency unable to do its job and a company that could not be relied upon to put the public interest first.

    Although everyone should be able to agree that these events are intolerable to the extent they are preventable, thoughtful analysis is too often sidetracked by the nation’s polarized debate over the role of government in our daily lives. Conservative commentators argue that accidents like the Gulf spill are the inevitable byproducts of industrialization, daunting in the best of times but having little to do with government failure. They say that over-regulation is a far more serious problem than under-regulation because bureaucrats run-amok are hobbling the country’s long-delayed recovery from a devastating world-wide recession. Progressive commentators  respond that one of the government’s most important jobs is to prevent industry from trading safety for profit, by compelling manufacturers to install redundant, fail-safe mechanisms to protect public health and the environment. Spills, explosions, unchecked carbon emissions, tainted drugs, and unhealthy air pollution represent chronic failures by government to forbid conduct that lies in the mainstream of business as usual. 

    During his presidential campaign, Barack Obama seemed to subscribe to the progressive view, declaring that the role of government is to help people when they cannot help themselves and raising the strong expectation that he would sponsor affirmative reform to prevent the damage produced by the sharper edges of a capitalist economy.

  • June 21, 2011

    The U.S. Supreme Court blocked a lawsuit yesterday aimed at reducing greenhouse gas emissions, holding that because the power to regulate emissions had been delegated to the Environmental Protection Agency under the Clean Air Act, federal common law did not apply.

    Although the ruling limited the threat of tort liability, there are some positive implications for U.S. climate policy, writes Yale Law Professor Douglas Kysar in Nature. But along with the good comes not just the “bad” but the “downright ugly,” Kysar writes.

    The “good” is that the opinion “solidified the court's landmark 2007 conclusion that the EPA has the power to regulate carbon dioxide as a pollutant.” This means that if Congress attempts to limit the EPA’s power in this area, these lawsuits could be reinstated, he explains. The court also left open state common law as an avenue for pursuing such suits.

    The “bad” is that lawsuits under federal common law are foreclosed even if the EPA never exercises its power to regulate, so long as that power is not explicitly repealed by Congress.

    And in the category of “downright ugly,” is the opinion’s overt skepticism about the science of climate change, Kysar writes, which likely influenced their decision in this case. The opinion suggests readers explore “views opposing the EPA” by reading a profile of Freeman Dyson, “the theoretical physicist whose controversial views on climate change have been widely promoted by the climate-skeptic community.”

    He continues: