The Volokh Conspiracy

Lyle Denniston and the AP report on today’s oral argument in American Electric Power v. Connecticut. Neither suggests the state and environmentalist plaintiffs have much chance of prevailing, as even the Court’s most liberal justices seemed skeptical of the arguments in favor of letting these lawsuits proceed, though it is unclear what rationale will attract a majority of the Court. Wrote Denniston: “this particular lawsuit seemed doomed, with the Court’s biggest task figuring out how to say so without shutting the courthouse door entirely to such claims.”

I’ll have comments of my own once I’ve reviewed the transcript (which will be released later today). My preview of the case from last night is here.

UPDATE: More on Legal Planet from Rhead Enion and Jonathan Zasloff.

Tomorrow the Supreme Court will hear oral arguments in American Electric Power v. Connecticut, which presents the question whether states and environmentalist groups may sue utilities seeking injunctive relief for contributing to the “public nuisance” of global warming. This case languished before the U.S. Circuit Court of Appeals for the Second Circuit for years before the appellate court eventually green-lighted the litigation, overturning a district court decision concluding the case presented a non-justiciable political question. Now that it is before the Court, the case raises several questions which could determine whether federal courts will continue to hear cases raising nuisance claims against emitters of greenhouse gases, as I breifly discuss in this column for PERC Reports. AEP and its supporters argue that the nuisance claims have been displaced by the federal Clean Air Act, if not precluded on standing or political question grounds.

I explained my view of the merits when the Court accepted cert last December.

First, I do not think this case presents a non-justiciable political question. Second, I think standing here is distinguishable from Massachusetts v. EPA. The private parties in this case cannot avail themselves of the “special solicitude” for states found in Mass v. EPA, and neither set of parties can claim there is a procedural right to lower the requirements of causation and redressability. I also believe the SG’s prudential standing concerns have merit.

On the nuisance claims, I think the plaintiffs likely have properly stated a public nuisance claim, though I have serious reservations on the remedy side. Such arguments should be moot, however, as I think the argument for displacement is exceedingly strong. I believe the Second Circuit completely muffed this part of its analysis by focusing on whether EPA had regulated greenhouse gases, whereas the relevant cases focus on whether Congress had occupied the field. Given the Court’s holding in Mass v. EPA that the Clean Air Act covers greenhouse gases, I think it indisputable that Congress has occupied the field with a comprehensive regulatory scheme. But even if the Second Circuit’s analysis was correct, its conclusion is no longer operable. At the time of the Second Circuit’s decision the EPA had not yet finalized any of its greenhouse gas regulations. That is no longer the case. The EPA has finalized its endangerment finding and regulations covering both mobile and stationary sources, and more are on the way. So even if the Second Circuit was correct in focusing on the C.F.R. instead of the U.S. Code, its holding has been overtaken by events. This alone should be enough for a remand. Indeed, this argument (made by the SG in its cert brief) has the potential to unify the Court around a narrow opinion.

However the Court decides the case, we will not see a traditional 5-4 split in this case — even if only because only eight justices will hear it. Justice Sotomayor is recused. So if the justices split on ideological grounds, they will divide 4-4 or 5-3. The Solicitor General filed a brief encouraging the Court to accept the case and suggesting two narrow grounds for reversal — prudential standing and displacement — grounds that may have broader appeal.

Laurence Tribe was initially on a brief supporting AEP, but had to remove his name due to his recent Justice Department stint. But that did not preclude him from writing an op-ed urging dismissal on political question grounds — a view he made at greater length before he went to DOJ. Interestingly enough, Tribe’s view is similar to that urged by David Rivkin and Lee Casey in the WSJ.

For more on the case, here is Lyle Denniston’s preview for SCOTUSBlog. I also rounded up some earlier commentary here.

UPDATE: Richard Frank has another preview of the case at Legal Planet. Prof. Frank is one of many environmental law academics from around the country who have flown in to D.C. to see the oral argument, and will post additional thoughts later today. The transcript will be available this afternoon and audio will be released at the end of the week.

In 2005, the United Nations Environment Program (UNEP) predicted that there would be 50 million refugees in 2010 due to climate change. An enterprising reporter wondered what happened to UNEP’s prediction, and found that those areas UNEP claimed were most at risk have actually gained population. How did UNEP respond? According to Anthony Watts, UNEP tried to erase the evidence of its initial claim — without success. It seems folks at UNEP were unaware of Google caches.

The original UNEP claim was ridiculous on its face, and UNEP’s subsequent effort to rewrite history is farcical. Regrettably, we’re unlikely to hear much about this story from the environmentalist community or those who allegedly police the politicization of science. And this is part of the problem. Climate change is real, and the evidence of a human contribution to the gradual warming of the atmosphere is strong. There’s no need to conjure fantastical projections of an impending climate apocalypse. But UNEP and various organizations insist on doing so nonetheless — indeed, UNEP is now claiming there will be 50 million climate refugees by 2020 — and the climate community raises not a peep. In the end, this ends up doing more to discredit legitimate concerns about climate change than to encourage action.

The latest issue of Regulation contains my review of Roger Pielke Jr’s The Climate Fix: What Scientists and Politicians Won’t Tell You about Global Warming. I found the book to be a very welcome contribution to the discussion of climate policy, particularly given Pielke’s unblinkered assessment of the climate challenge. Here’s the conclusion from my review:

The Climate Fix is most effective when making the case that governments will not sacrifice economic growth for carbon emission reductions, and that atmospheric stabilization of greenhouse gas emissions will not happen without dramatic technological advance. Pielke is more successful in puncturing overinflated ideas and identifying critical challenges than setting forth a positive agenda for climate policy. As he himself admits, he is only providing a “rough outline.”

Nonetheless, his clear-headed and non-ideological analysis is welcome in a field dominated by wild-eyed partisans and fear-mongers of various stripes. If one accepts climate change as a real threat, it is essential to acknowledge the lack of clean and easy answers. However urgent global warming may seem, policies to address it cannot be pursued to the exclusion of other concerns, including economic development and access to affordable energy sources. Understanding the depth of the challenge is not only a good place to start, it is essential for there to be any hope of success.

The Berkeley Earth Surface Temperature project was launched to conduct a re-evaluation of the surface temperature record in order to resolve persistent debate over the reliability of prior analyses and provide an open record that could form the basis for future scientific research.  The effort is led by several respected scientists, including UC Berkeley physicist Richard Muller, and funded by a wide variety of sources, ranging from the Charles G. Koch Charitable Foundation to Bill Gates’ Fund for Innovative Climate and Energy Research to the Lawrence Berkeley National Laboratory. While not a climate “skeptic,” Muller has previously raised concerns about the reliability of conventional climate assessments and warming projections.

The project was not created to confirm the reliability of the existing temperature record, but it appears that is what it is doing.  As today’s Los Angeles Times reports:

Muller unexpectedly told a congressional hearing last week that the work of the three principal groups that have analyzed the temperature trends underlying climate science is “excellent…. We see a global warming trend that is very similar to that previously reported by the other groups.”

The hearing was called by GOP leaders of the House Science & Technology committee, who have expressed doubts about the integrity of climate science. It was one of several inquiries in recent weeks as the Environmental Protection Agency’s efforts to curb planet-heating emissions from industrial plants and motor vehicles have come under strenuous attack in Congress.

Muller said his group was surprised by its findings, but he cautioned that the initial assessment is based on only 2% of the 1.6 billion measurements that will eventually be examined.

The preliminary findings, and a link to Muller’s testimony, are here.  It bears repeating that these findings are preliminary, but it is also significant that they are confirming prior claims that the earth has experienced significant warming in recent decades, a conclusion also supported by the satellite record (which goes back to 1979).

The reality of global warming may not justify the expansion of federal regulation under the Clean Air Act and other existing statutes, but it does merit a serious policy response.  Even less-than catastrophic warming projections justify action to address climate change.  Indeed, some of the things that would set the nation on a more climate-friendly course — such as shifting the tax-burden away from income and wealth creation toward consumption — would be a wise thing to do even if climate change were no concern at all.

Yesterday the Energy and Power Subcommittee of the House Energy and Commerce Committee voted to remove the Environmental Protection Agency’s authority to regulate greenhouse gases under the Clean Air Act.  The NYT covers the vote here.  This is a good first step on climate policy — but it should be just that, a first step.  Unfortunately, it may be the sum-total of House Republicans’ climate policy.

Regulation of greenhouse gases under the Clean Air Act is a mistake.  This decades-old statute was designed to address a quite different set of problems and is not well-suited to greenhouse gas emission control, let alone regulating the planetary thermostat.  As I explained here (and here), these efforts will produce a regulatory morass — and the Obama Administration recognizes as much, which is why it has sought to rewrite the law through regulatory fiat under it’s so-called “tailoring rule.” And yet this is only the beginning.  Now the the Clean Air Act’s regulatory authority has been triggered, the EPA will be required to do still more.  (I survey some of these efforts in a forthcoming article in the Harvard Journal of Law & Public Policy which I will link as soon as it’s posted on SSRN.)

Stripping the EPA of authority to regulate greenhouse gases under the Clean Air Act is a good idea, but it is not, by itself, a climate change policy.  More is necessary, but Congressional Republicans do not seem likely to even attempt the next step.  As is so often the case in environmental policy, Republicans have a good idea of what to oppose, but no clue about what to support.  The result is a half-baked approach to environmental issues, and measures that, in some cases, are worse than doing nothing at all.

So what should Republicans be doing on climate change?  For years I have been arguing for a combination of policies that would include a) a revenue-neutral carbon tax, like that proposed by James Hansen, offsetting new taxes on carbon with reductions in income or other taxes; b) measures to incentivize and accelerate energy and climate-related innovation, including  technology inducement prizes; c) streamlining of regulatory requirements that hamper the development and deployment of alternative energy technologies, including (but not limited to) offshore wind development; d) policies to facilitate adaptation due to the inevitability of some amount of climate change, and e) elimination of policies that subsidize energy inefficiency and excess greenhouse gas emissions, including ill-conceived ethanol mandates (which, among other things, forestall efforts at reforestation).  Would this be enough?  Maybe not, but it would be a start — and it would be far better than simply stripping EPA of regulatory authority and then hoping the risk of climate change would just go away.

[NOTE: For those who wonder why I think we need to have a climate change policy at all, see this paper, and these posts (1, 2, 3).]

The NYT Green Blog reports on libel suits a Canadian climate scientist has filed against a skeptic and the National Post, a Canadian paper.

Politico reports that the Obama Administration is defending the Bush Administration’s decision to list the polar bear as a “threatened” species, rather than “endangered” species, under the Endangered Species Act (ESA).  As I discussed in this series of posts, environmentalist groups petitioned to have the polar bear listed as an endangered species due to the warming of its arctic habitat.  Such a listing could open the door to using the ESA as yet another regulatory weapon against activities that contribute to greenhouse gas emissions.   Although the Obama Administration has moved aggressively to utilize the Clean Air Act to impose regulations controlling greenhouse gas emissions, it does not appear as eager to deploy the ESA as well.

Yesterday the Environmental Protection Agency (EPA) announced it was entering into two proposed settlement agreements to regulate greenhouse gas emissions from fossil fuel-fired power plants and oil refineries under the Clean Air Act.  The two agreements resolve lawsuits filed against the EPA by several states and environmental groups seeking the imposition of new source performance standards covering greenhouse gas emissions from the two types of facilities.  Under the agreement, the EPA will issue proposed regulations governing the two classes of facilities in 2011 and finalize the rules in 2012.

Today the D.C. Circuit (panel of Ginsburg, Tatel, Brown) denied the request of those challenging the EPA’s suite of greenhouse gas regulations to stay the regulations pending the outcome of the litigation. The order is available here.

Following up on my post from earlier today, here is some more commentary on the Supreme Court’s decision to accept cert in American Electric Power v. Connecticut.

• Douglas Kysar (Yale), ACSBlog
• Jonathan Zasloff (UCLA), Legal Planet

And here is news coverage from the WSJ and Greenwire.

UPDATE: More from NRDC’s Swithcboard and the Center for Progressive Reform’s CPRBlog.

UPDATE: Still more from Ilya Shapiro on Cato-at-Liberty and the Warming Law blog.

This morning the Supreme Court accepted certiorari in American Electric Power v. Connecticut, a case in which several states and environmental groups alleged that greenhouse gas emissions from several large utilities constitute actionable contributions to the public nuisance of global warming.  This case has potentially broad implications for continuing climate change litigation in federal courts where plaintiffs have raised common law claims, but it unlikely to be as consequential as Massachusetts v. EPA.

AEP comes up from the the U.S. Court of Appeals for the Second Circuit, where it languished for several years.  Then-judge Sonia Sotomayor was on the original panel, so (as I  expected) she is recused.

Several questions were raised below, including whether the claims constituted non-justiciable political questions; whether plaintiff states and private organizations each had standing; whether the plaintiffs properly stated public nuisance claims federal common law, and whether federal common law interstate nuisance claims of this sort are displaced by the Clean Air Act.  Of note, the Solicitor General’s office supported petitioners arguing that the Court could resolve this case on relatively narrow grounds, either by finding the plaintiffs lacked prudential standing because global warming presents a generalized grievance or concluding that the plaintiffs’ claims are displaced by the federal Clean Air Act, particularly now that the EPA has begun to adopt and implement various greenhouse gas emission control regulations.

For what it’s worth, here is my view of the claims on the merits.  First, I do not think this case presents a non-justiciable political question.  Second, I think standing here is distinguishable from Massachusetts v. EPA.  The private parties in this case cannot avail themselves of the “special solicitude” for states found in Mass v. EPA, and neither set of parties can claim there is a procedural right to lower the requirements of causation and redressability.  I also believe the SG’s prudential standing concerns have merit.

On the nuisance claims, I think the plaintiffs likely have properly stated a public nuisance claim, though I have serious reservations on the remedy side.  Such arguments should be moot, however, as I think the argument for displacement is exceedingly strong.  I believe the Second Circuit completely muffed this part of its analysis by focusing on whether EPA had regulated greenhouse gases, whereas the relevant cases focus on whether Congress had occupied the field.  Given the Court’s holding in Mass v. EPA that the Clean Air Act covers greenhouse gases, I think it indisputable that Congress has occupied the field with a comprehensive regulatory scheme.  But even if the Second Circuit’s analysis was correct, its conclusion is no longer operable.  At the time of the Second Circuit’s decision the EPA had not yet finalized any of its greenhouse gas regulations.  That is no longer the case.  The EPA has finalized its endangerment finding and regulations covering both mobile and stationary sources, and more are on the way.  So even if the Second Circuit was correct in focusing on the C.F.R. instead of the U.S. Code, its holding has been overtaken by events.  This alone should be enough for a remand.  Indeed, this argument (made by the SG in its cert brief) has the potential to unify the Court around a narrow opinion.

I may have more to say on this case later.  For my prior posts on this case see here and here.  Readers may also be interested in this exchange I had with UCLA’s Jonathan Zasloff on the SG’s brief supporting certiorari.

UPDATE:  Ann Carlson comments at Legal Planet.

Co-Conspirator Jonathan has already remarked below on the seeming collapse of the media-academic-NGO-international organization-et al. global warming coalition in-between last year’s Copenhagen meeting and this year’s much-subdued Cancun event.  I broadly agree with Jonathan, and with Margaret Wente, on whom he comments, on the policy merits.

I also think the right approach to climate change is not some massive project for the most far-reaching, long-term, costly, uncertain attempt at governance through the demands of climate for the whole globe.  It is wrong as a global political project, doomed not to just fail but to transmute into some set of spectacularly bad unintended consequences, and wrong as a question of management of long-run uncertainties.  It is noteworthy that even the voice of the global establishment, bien pensant global opinion, the Economist, is now saying what should have been said a decade ago – you have to manage the problems as they arise through mitigation, not some exercise in doomed global political glory to seek to head it off on the front end.

I say all that as background, not to try and persuade anyone, but simply to be clear what the starting point of the discussion is for me (be warned, this is a long post).  As far as the future of the global project over climate change is, I would point you to Walter Russell Mead’s new blog essay on Cancun (h/t Instapundit) (for the glass-half-filled view, see this news story from the NYT; note that it is filed from DC and NY, not Cancun).  It is useful in large part because it lays out something on which I have commented occasionally in the course of writing about the UN and its member states as a (non-) governance mechanism, and its “public choice” pathways of rent-seeking, income extraction, and wealth transfer under the banner of climate change.  Mead offers a comprehensive essay in a relatively short space and it is worth reading closely.  But on the daunting problems of collective action at Copenhagen and UN mechanisms generally, Mead notes, a Copenhagen climate treaty

was intended to be the successor to the ineffective and expiring Kyoto Protocol, and was conceived of as a ‘grand bargain.’  The US Senate had in effect rejected Kyoto 95-0 because the Protocol limited US emissions without placing restrictions on the rapidly growing economies of the developing world.  Son of Kyoto (call it SOK for short) would get around this by placing limits of some kind on all the world’s countries.  The geniuses behind SOK framed the problem this way: how do we get the developing countries to sign on to carbon limits strict enough that the US Senate would ratify the next global treaty?

The answer was obvious: bribe them.  Put enough rich country taxpayer money on the table and even the most corrupt and shortsighted rentier regimes in the developing world will experience an extraordinary upsurge in green conviction.  The dream was that the developing countries properly and appropriately compensated would sign on to emission limits of their own, the US Senate would ratify and as Barack Obama explained it to us, the earth would begin to cool and the seas start to recede.

In the diplomatic negotiating event, the “experts and enthusiasts” of the northern environmental lobby departed, predictably, from anything the rich country publics, in the midst of financial crisis on top of everything else, might have been expected to support.  The elites of the climate change movement, raised on the statist milk of the EU breast, figured they were doing God and Gore’s work on behalf of once and future voters, and devoted themselves to negotiating with the developing countries, seemingly without regard for the willingness of said publics to pay the price.  On the developing country side, the question was how much and how fast:

Northern green activists lobbied to get strict carbon targets adopted.  Developing country diplomats focused on ‘appropriate compensation’.  Just how green did the North want the South to become, and just how much money was the North willing to pay to make this happen?  Negotiators played with rich country aid budgets like kids with Monopoly money, and issued vague and intoxicating pledges that, in an era of austerity, will never be honored.

In the hothouse fantasy land of UN negotiations, the path to compromise looked simple.  Soon enough, the numbers began to come clear: northern activists developed a formula for carbon restriction that they liked and the southern diplomats found a number that worked for them:  a $100 billion sweetener to start, ultimately rising to $100 billion a year to be paid by the advanced countries to the developing ones in order to compensate them for pain and suffering.

But now a couple of additional observations that take things a step further than Mead does.  In the past I have remarked (and say in my little book manuscript now in copy editing on UN-US relations) – that the environmental intellectuals and campaigners might have done better to have paid less attention to their own favored issue and more attention to the incentives as evidenced by the history of the UN not just on this issue, but a long list stretching back decades.  They might have learned that the UN follows a well-laid out path of embracing an issue to see how much institutional leverage toward “governance” it might yield, combined with the rent-seeking interests of the UN-complex and member states.

The UN believes – Ban Ki Moon, for example – fervently that climate change is every bit as important as it is to Al Gore.  And, “serial absolutist believer” that the UN is, it will believe so … until it perceives that it has got whatever it can get in the way of leverage toward its own notions of global governance at the UN, and member state rent-seeking.  Whereupon – as is unfolding now – this issue is down the memory hole that is so crucial to being a “serial absolutist” and on to the Next Big UN Thing that promises an accretion of global governance at the UN and more money for member states.  The environmental lobbyists could have learned from considering their issue as the UN does – not as the sole issue in the history of the human race, but instead as simply a succession of possible political levers for the UN. Continue reading ‘Cancun and Copenhagen, and Carbon as Pure Regulatory Object’ »

Microsoft Chairman Bill Gates reviews Matt Ridley’s The Rational Optimist in the Wall Street Journal.  Gates is quite favorable.  He endorses Ridley’s overall thesis, but thinks Ridley is too dismissive of some current problems, including underdevelopment in Africa and climate change.

Having shown that many past fears were ultimately unjustified, Mr. Ridley finally turns his “rational optimism” to two current problems whose seriousness, in his view, is greatly overblown: development in Africa and climate change. Here, in discussing complex matters where his expertise is not very deep, he gets into trouble.

Mr. Ridley spends 14 pages saying that everything will be just fine in Africa without our worrying about negative possibilities. This is unfortunate and misguided. Is his optimism justified because things always just happen to work out? Or do good results depend partly on our caring and taking action to prevent and solve problems? These are important questions, and he doesn’t answer them. . . .

“The Rational Optimist” would be a great book if Mr. Ridley had wrapped things up before these hokey policy discussions and his venting against those he considers to be pessimists. . . . .

The key question that Mr. Ridley fails to address is: What’s wrong with worrying about and guarding against threats that might become real, large problems? Parents worry a great deal about their children’s safety. Some of that worry leads to constructive steps to keep children safe, and some is just negative emotion that doesn’t help anyone. If we all agree to join Mr. Ridley as rational optimists, does that mean that we should stop worrying about trends that might cause problems and not take action to anticipate them?

Mr. Ridley devotes his attention to just two present-day problems, development in Africa and climate change, and seems to conclude, “Don’t worry, be happy.” My prescription would be, “Worry about fewer things while understanding the lessons of the past, including lessons about the importance of innovation.” . . .

The WSJ has also published Ridley’s response, which concludes:

Am I saying that we should cease worrying about trends that might cause problems? Of course not. I am arguing that we should worry about real problems, including Africa’s plight, but that we should do so in the knowledge that we have solved many such problems before and can do so again. I am certainly not saying, “Don’t worry, be happy.” Rather, I’m saying, “Don’t despair, be ambitious”—though I admit it’s not nearly as snappy a song lyric.

UPDATE: Here’s my take: I’m more with Ridley than Gates in that I have more faith in the potential of bottom-up, decentralized institutional arrangements to drive progress and generate solutions to vexing social problems.  Yet I think Ridley creates too stark a dichotomy and is occasionally Pollyannish about the likelihood of human progress over any given time frame.  I accept that the world will be a better place 500 years from now, but if it’s not a better place 50 or 100 years from now — that is, not a better place for my children and theirs — the sunny long view is not so reassuring.

On the specific issue of climate change: To believe the human contribution to global warming is a sufficiently serious problem to justify government intervention is not to endorse centralized government control of the energy sector or top-down technology policy.  So long as the atmosphere is treated as an unowned, open-access commons and greenhouse gas emissions are unpriced, there will be insufficient incentive to develop GHG-reducing technologies.  There are government policies that could address this problem, ranging from technology-inducement prizes to a fully-rebated carbon tax, that would increase the incentives to develop the sorts of innovations Ridley believes will eventually save the day without creating innovation-stifling bureaucracies or centralized control of economic activity.  I may agree with Ridley that government intervention is inferior to decentralized market discovery 99 times out of 100, but I still care about getting that one percent right if we can.

In yesterday’s Washington Post, Bracken Hendricks of the Center for American Progress laments widespread conservative opposition to “government action on climate change.”  Responding to the threat posed by global warming should be a conservative cause, Hendricks argues, because a warmer world will breed bigger government.

Many conservatives say they oppose clean-energy policies because they want to keep government off our backs. But they have it exactly backward. Doing nothing will set our country on a course toward narrower choices for businesses and individuals, along with an expanded role for government. When catastrophe strikes – and yes, the science is quite solid that it will – it will be the feds who are left conducting triage.

My economic views are progressive, and I think government has an important role in tackling big problems. But I admire many cherished conservative values, from personal responsibility to thrift to accountability, and I worry that conservatives’ lock-step posture on climate change is seriously out of step with their professed priorities. A strong defense of our national interests, rigorous cost-benefit analysis, fiscal discipline and the ability to avoid unnecessary intrusions into personal liberty will all be seriously compromised in a world marked by climate change.

Failure to take decisive action against climate change is unconservative, Hendricks argues, because global warming presents such grave risks.

far from being conservative, the Republican stance on global warming shows a stunning appetite for risk. When faced with uncertainty and the possibility of costly outcomes, smart businessmen buy insurance, reduce their downside exposure and protect their assets.

Dan Farber finds the op-ed compelling.  I do not.   Unlike some conservatives, I believe global warming is a serious problem that merits a serious policy response (as I’ve blogged about at length), but I don’t find Hendricks’ arguments particularly persuasive.

Conservative action to proposed climate policies is driven by opposition to extensive government interference in the economy.  Cap and trade is a conservative bogeyman because it requires far-reaching regulatory authority over private economic activity and the imposition of a de facto tax on energy use.  Opposition to cap-and-trade is not the same as opposition to all climate measures.  As Senator Mitch McConnell noted in a recent interview, “nobody thinks it’s a bad idea to reduce carbon emissions.” But many do think it is a bad idea to allow EPA to regulate over one million sources of carbon emissions or adopt an expansive “cap-and-tax” scheme that will places tens of millions more taxpayer dollars under government control.

Furthermore, while “smart businessmen buy insurance,” they also pay attention to the relationship between their premiums and the expected value of their coverage.  Even when faced with potentially catastrophic risks, not all insurance policies are a good deal.  If a minimal risk reduction is tremendously expensive, the “smart businessman” will find another way to manage the risk, “reduce their downside exposure and protect their assets.”  Sometimes this means investing in prevention or purchasing insurance.  In other cases it means protecting assets by making them more resilient against potential threats or investing in contingencies.  That mandating dramatic near-term emission reductions is a more sensible or “conservative” risk management strategy than investing in technological innovation, exploring geoengineering, or preparing for adaptation is something to be shown, not blithely asserted.

Hendricks’ effort to scare conservatives into supporting big government now to avoid bigger government later rings particularly hollow.  Why is it that everything requires bigger government?  Climate change is a threat?  Extend government tentacles throughout the economy.  Climate change is already happening?  Ditto.  Adaptation is necessary?  More of the same.  Were climate change not happening at all, I suspect Hendricks would still endorse a substantial expansion in government power.

Admittedly some on the right are equally reflexive, assert government is never the answer, and go to lengths to deny climate change poses any threat whatsoever.  Yet there are also plenty of conservatives and libertarians who are deeply skeptical of government intervention, but are nonetheless  willing to believe global warming might be a problem.  It’s perfectly reasonable to believe that reducing greenhouse gas emissions does not require the enactment of monstrous, pork-laden, regulatory statutes like Waxman-Markey.  And it’s not at all clear that climate adaptation necessitates a massive expansion of government power.  In many areas, such as water, climate adaptation requires more reliance on markets, not less.  Climatopolis author Matthew Kahn also blogged here about how successful climate adaptation will be driven by market forces, not government planners.

I share Hendricks’ and Farber’s frustration that more conservatives don’t take climate change or other environmental concerns seriously.  But I also believe some of this is the environmentalist movement’s own doing.  If everything calls for the same big government solution, why does it matter what the problem is?  If progressives really believe climate change is an impending catastrophe — not just a problem worth addressing but a potential apocalypse — and seek to enlist conservatives to their cause, they should pursue consensus efforts to reduce greenhouse gas emissions, including efforts to stimulate technological innovation or proposals for revenue-neutral carbon taxes (see, e.g., here, here and here).  Yet Hendricks’ colleagues at CAP excoriate any and all who deviate from the progressive climate orthodoxy or espouse anything short of dramatic government intervention throughout the economy.  Environmentalists will be more successful enlisting conservatives (and many moderates) to their cause once they become more focused on solutions, and less insistent on government control.

Professor Lisa Heinzerling will be leaving her post as Assistant Administrator for the Environmental Protection Agency’s Office of Policy, Economics, and Innovation at the end of the year and returning to the Georgetown University Law Center, Politico reports.  Heinzerling has  been very active in pushing the EPA to move aggressively to regulate greenhouse gases under the Clean Air Act, which is no surprise as Heinzerling helped litigate Massachsuetts v. EPA. Yet according to Politico, everyone at EPA may not share this view:

Within EPA, Heinzerling is one of the more dogmatic proponents of regulating greenhouse gases to the maximum extent possible under the Clean Air Act.

There are two camps within the agency on climate, said an environmental advocate who spoke on background. The Heinzerling camp, with the mind-set that, “we have the law on our side; let’s go get them.” In the other camp are Administrator Lisa Jackson and EPA air chief Gina McCarthy, who are trying to maintain the support of the White House and Congress.

An EPA spokesman denied there are competing “camps” within EPA, and even if there are, this may have nothing to do with Heinzerling’s departure.  It is rather common for universities to impose a two-year limit on academic leaves of this sort, and not at all unusual for an academic to limit any given government stint to two years.

Last week, delegates from 193 nations agreed to a moratorium on geoengineering at the tenth conference of the parties to the Convention on Biological Diversity in Nagoya, Japan.  Specifically, the parties agreed that all parties should:

Ensure . . . , in the absence of science based, global, transparent and effective control and regulatory mechanisms for geo-engineering, . . . that no climate-related geo-engineering activities that may affect biodiversity take place, until  there is an adequate scientific basis on which to justify such activities and appropriate consideration of the associated risks for the environment and biodiversity and associated social, economic and cultural impacts, with the exception of small scale scientific research studies that would be conducted in a controlled setting  . . . and only if they are justified by the need to gather specific scientific data and are subject to a thorough prior assessment of the potential impacts on the environment;

Here are reports from the Washington Post and Nature, and a dissenting view from Bryan Walsh, who is concerned the agreement would limit valuable geoengineering research.

Geoengineering is potentially dangerous—but so is climate change. Banning research in the field could deprive humanity of a last-ditch weapon should global warming spin out of control. And we’ll never know how effective geoengineering could be—or how risky—unless scientists are allowed to do their work. That work will continue—the stakes are simply too high—and it’s better that the research is done above ground, socially-sanctioned, than driven into the black.

This week, environmental analysts from left and right came together to offer a “post-partisan” approach to climate change.  In Post-Partisan Power: How a Limited and Direct Approach to Energy Innovation Can Deliver Cheap Energy, Economic Productivity, and National Prosperity, Steven Hayward (American Enterprise Institute), Mark Muro (Brookings Institution), and Ted Nordhaus and Michael Shellenberger (Breakthrough Institute) argues that the best path to a clean energy future is to make alternatives to fossil fuels much less expensive, and that this can be best achieved by increased support for technological innovation.  Specifically, the paper calls for a dramatic increase in federal support for clean energy R&D, an overhaul of the energy innovation system, and greater use of military procurement to drive the diffusion of clean energy technologies (including next generation nuclear power).  While not without flaws, the proposal represents a serious alternative to politically-moribund cap-and-trade proposals and the regulate-everything mindset that produced the Waxman-Markey bill.

The proposal has sparked a range of reactions.  Doctrinaire environmentalists are concerned, but some thoughtful progressives seem to realize this sort of non-regulatory approach to climate policy may be the only game in town.  (See also here.) Those truly concerned about the accumulation of greenhouse gases in the atmosphere should see this as a good thing.  As David Leonhardt notes, even some supporters of cap-and-trade have acknowledged that Waxman-Markey was oversold.  Despite its tremendous costs, the bill would not have driven down U.S. emissions all that much, and it would have done nothing to prevent massive emission increases in China, India and the rest of the developing world.  The reality is that unless it becomes cheap to power the world in a low-carbon way, it will not happen, and regulatory mandates are no way to achieve this goal.

The biggest question about Post-Partisan Power is how to pay for the proposals.  As a general matter, it’s much easier to increase spending than to impose wide-ranging regulatory controls on energy (and, I would argue, it’s would  also be easier to adopt a revenue-neutral carbon tax than Waxman-Markey-style cap-and-trade, but that’s the subject for another post).   Nonetheless, in the current political environment, it will be difficult to find the $25 billion or so necessary to fund the “post-partisan” plan.  Eliminating energy subsidies could get us only part way there, and a carbon tax to fund additional federal spending would be DOA in the new Congress.

Fortunately there are other options.  If the goal is to increase economic investment in clean energy innovation, not all of the money has to come from the federal government.  Indeed, if the goal is to induce $25 billion in investment, this does not require $25 billion in federal funding.  As I discuss in this paper, technology-inducement prizes can greatly leverage R&D investments.  The Ansari X-Prize offered $10 million for reusable, manned spacecraft but induced an estimated $100 million in investments in pursuing the prize.  Equally important, the resulting innovation sowed the seeds of a fledgling space travel industry, showing how properly designed prizes can lead to commercially viable technologies.  A ten-to-one multiplier is not guaranteed for all prizes, but with prizes the federal government need not put up $25 billion to spur that level of investment.  Federal procurement can also be used to increase the incentive for private sector investment in clean energy R&D  without greatly increasing costs to the taxpayer.

If there’s “post-partisan” support for increased investment in clean energy technology, there should also be such support for prizes.  John McCain proposed a battery prize in the 2008 presidential campaign and the Obama Administration has endorsed greater reliance on prizes in technology funding.  The authors of Post-Partisan Power are correct that there is no solution to climate change without substantial breakthroughs in clean energy technologies.  If their vision of increased clean energy R&D is to become a reality, technology-inducement prizes would be a great place to start.

This morning I had an essay on NRO discussing the state of the environmentalist movement in light of the failure to enact significant climate legislation.

I’m currently in Emigrant, Montana, attending a conference co-sponsored by Liberty Fund and PERC on “Liberty and the Progress of the Human Condition,” so I may not be able to respond much to comments.

You read it here first, but in case there was any doubt, “skeptical environmentalist” Bjorn Lomborg appears in today’s WSJ explaining that he has not altered his views on the existence of climate change or whether it poses a serious environmental problem.

Yesterday the Inter-Academy Council, a consortium of the world’s leading national academies of science, issued a report highly critical of the UN Intergovernmental Panel on Climate Change (IPCC).  (Full report here.)  The report does not challenge the IPCC’s central findings about the science of climate change, but strongly criticizes the IPCC’s procedures and management structure, and urges fundamental reform.  Among other things, it urges the IPCC to acknowledge the degree of uncertainty and controversy surrounding certain aspects of climate science, to respond more fully to reviewer comments, and to make the entire IPCC process more transparent.  It also suggests that current IPCC head Rajendra Pachauri should step aside lest a single individual oversee the IPCC process for too long. (More here.)  Institutional reform, the Inter-Academy Council report concludes, is necessary to ensure the IPCC’s “credibility and independence.”

Over the past year the IPCC has been under siege.  The release of e-mails from the University of East Anglia’s Climate Research Unit and the discovery of several errors in the IPCC’s Working Group II report have reinforced the perception that the IPCC’s review of climate science is overly politicized.  The resulting decline in the IPCC’s credibility has fed skepticism about the likelihood of anthropogenic climate change.  Ironically, efforts intended to enhance the case for action have actually set climate policy back.  Only if the IPCC reforms itself, and confronts the biases and errors that have plagued prior reports, will it be perceived as an honest broker in climate science debates.

Here’s more coverage from the NYT, Ron Bailey, Roger Pielke, Jr., and RealClimate.

The Guardian reports on an “apparent U-turn” by Bjorn Lomborg, the “skeptical environmentalist,” on the issue of global climate change. (See also here.) The stories report that Lomborg has a new book, due out this fall, in which he calls global warming “one of the chief concerns facing the world today” and urges adoption of a carbon tax to finance $100 billion in  R&D for climate-friendly technologies, and $50 billion in climate adaptation.  Tyler Cowen notes the story with  a post titled “Lomborg v. Lomborg,” and TNR‘s Bradford Plumer calls Lomborg’s new position “a pretty striking about-face,” and suggests it may be a cynical ploy to sell books.

Yet Lomborg’s new position is not much of “U-turn,” striking or otherwise.  Lomborg has acknowledged the reality of human-induced warming in all of his books, while discounting some of the more apocalyptic scenarios.  In his 2007 book Cool It: The Skeptical Environmentalist’s Guide to Global Warming (which I reviewed here), he declared that climate change was a “problem” and recommended a strikingly similar response.  Specifically, he called for the imposition of a carbon tax and urged a global commitment to financing climate-friendly R&D to the tune of $25 billion per year.  His new proposal is more ambitious – a larger tax to fund even more research – but otherwise is much the same.  So, too, is his overall message: Climate change is one of many problems the world faces, must compete with other priorities, and should be addressed in a cost-effective manner.  Perhaps what’s really changed is not Lomborg’s perspective, but the degree to which commentators actually pay attention to what he writes.

UPDATE: The NYT‘s Green blog acts as if Lomborg’s endorse of a carbon tax is new too.  Reason‘s Ron Bailey, on the other hand, gets it right.

It’s a big week for climate change litigation.  In addition to the SG filing I noted below, the plaintiffs in Comer v. Murphy Oil, a public nuisance suit against multiple energy companies, have filed a petition for a writ of mandamus with the Supreme Court in an effort to revive their litigation.  It’s an interesting and unusual request, but this has been an interesting and unusual case.

Here’s some background.  The initial suit alleged that defendant energy companies’ contributions to global climate change contributed, in turn, to the intensity of Hurricane Katrina.  The district court dismissed on standing and political question grounds.  A three-judge panel of the U.S. Court of Appeals for the Fifth Circuit reversed, rejecting the political question claim and finding the plaintiffs had standing to assert inter alia their private and public nuisance claims.  The Fifth Circuit then agreed to hear the case en banc, and issued an order vacating the panel decision.  But then one of the nine judges on the en banc panel recused, leaving the court without an en banc quorum.  As a consequence, the court dismissed the case, claiming that the absence of a quorum left it no other choice and (here’s the kicker) prevented it from reinstating the since-vacated original panel opinion.  The Court’s order, including two dissenting opinions, is available here.

This placed the plaintiffs in a bit of a tough spot — hence the petition for a writ of mandamus asking the Supreme Court to direct the Fifth Circuit, if it still lacks an en banc quorum, to reinstate the appeal and return it to the original panel.   I was no fan of the fifth Circuit panel’s opinion, but this certainly seems like an inappropriate way to end a case, and would appear to deprive the plaintiffs of their appeal of right.  Definitely one worth watching.

I’ll post a link to the petition when I find it online.  In the meantime, I’ve copied the questions presented below the jump.

Continue reading ‘Writ of Mandamus Sought in Comer v. Murphy Oil’ »

The environmental law community is buzzing over a brief filed by the Solicitor General’s Office this week on behalf of the Tennessee Valley Authority in American Electric Power v. Connecticut.  As reported by the Washington Post, the WSJ‘s Washington Wire, and Greenwire, environmentalist groups are shocked and dismayed by the SG’s decision to enter the case.  “Obama Sides with Polluters” reads the title of a blog post by UCLA’s Jonathan Zasloff at Legal Planet.

In AEP, a panel of the U.S. Court of Appeals for the Second Circuit (that initially included then-Judge Sonia Sotomayor) allowed several states and private groups to pursue public nuisance claims under federal common law against a handful of the nation’s largest utilities, including the TVA, for their contribution to global warming.  Among other things, the court held the states had standing and that their nuisance claims were not displaced by federal regulatory authority over greenhouse gas emissions under the Clean Air Act.  This suit, like others filed elsewhere, has increased pressure on utilities and others to accept federal climate change legislation.

The SG’s brief urges the Supreme Court to toss out the Second Circuit’s opinion and send it back to the Second Circuit:

this Court should grant certiorari, vacate the judgments of the court of appeals, and remand to enable the court of appeals to consider two questions in the first instance: (1) whether, independent of Article III standing requirements, plaintiffs’ suits should be barred as a matter of prudential standing; and (2) whether, in light of multiple actions that EPA has taken since the court of appeals issued its decision, any otherwise cognizable federal common-law claims here have been displaced.

Unlike some, I don’t find the SG’s decision to file the brief all that surprising, and I find the legal arguments it makes on behalf of the TVA (one of the defendants in the original suit) rather modest and quite sensible. I explain below the jump

Continue reading ‘The SG’s Brief in American Electric Power v. Connecticut’ »

Yesterday, the Environmental Protection Agency denied ten petitions seeking reconsideration of its December 2009 finding that emissions of greenhouse gases cause or contribute to air pollution that can be reasonably anticipated to endanger human health or welfare.  (Hat tip: Legal Planet) This so-called “endangerment finding” is the trigger for the regulation of greenhouse gases under the Clean Air Act.  As I chronicled here, this finding will have far-reaching regulatory effects.

The EPA’s decision sets the stage for judicial review of the “endangerment finding.”  To date, over a dozen challenges have been filed and consolidated in the U.S. Court of Appeals for the D.C. Circuit.  In all likelihood, the decision also makes these challenges more difficult.  As I have noted before, challenges to the endangerment finding have always faced an uphill climb.  Under the Clean Air Act, the EPA does not have to prove that climate change is an iminent or catastrophic threat.  Rather, all it needs to show is that the Administrator could reasonably conclude that global warming could have negative effects on health or “welfare,” an expansive term the act explicitly defines to include effects on climate, “economic values,” and “personal comfort and well-being.” On top of that, the D.C. Circuit will defer to the EPA’s read of the relevant scientific evidence.

A frontal assault on the EPA’s scientific conclusions was never really viable.  The best hope for those attacking the endangerment fnding has always been to find some procedural irregularity or oversight, such as the failure to respond to specific comments and critiques during the rulemaking process.  Overconfident agencies have been known to make such mistakes.  For this reason, the reconsideration petitions created a new opportunity for EPA error.  If the EPA were too dismissive of the petitions it would be easier to charge it failed to engage in reasoned decisiomaking without directly challenging its conclusions.  But from the looks of it, the EPA did not make this mistake, as it has prepared a lengthy (600-plus page) set of responses to the petitioners (available here).  I have not parsed the filings, but they give the appearance of an agency prepared to dot the I’s and cross the T’s so as protect its decision from judicial review.

If my analysis is correct, this places the ball back in the legislative court.  The courts won’t  know the climate policy train off course.  If Clean Air Act regulation of greenhouse gases is a mistake (as I believe it is), only Congress can prevent it.  And yet Congress will not act on climate change this year.  This is actually a good thing, as the House-passed climate bill was a disaster.  It would have created a bureaucratic morass but done little to mitigate the climate threat.  This creates an opportunity for the next Congress to start afresh, perhaps to embrace a bipartisan compromise that incentivizes greenhouse gas emission reductions by adopting a revenue-neutral carbon tax (such as that proposed by James Hansen or Arthur Laffer), reducing regulatory barriers to alternative energy development, and authorizing inducement prizes for climate friendly technologies. I’m hoping, but not holding my breath.